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About The Death Penalty

Arguments for and Against the Death Penalty

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The death penalty deters future murders.

Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.

For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced results showing that for every inmate who was executed, 7 lives were spared because others were deterred from committing murder. Similar results have been produced by disciples of Ehrlich in follow-up studies.

Moreover, even if some studies regarding deterrence are inconclusive, that is only because the death penalty is rarely used and takes years before an execution is actually carried out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty.

Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the question of deterrence closely, wrote: “Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.”

Finally, the death penalty certainly “deters” the murderer who is executed. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in prison is prevented from robbing on the streets. Vicious murderers must be killed to prevent them from murdering again, either in prison, or in society if they should get out. Both as a deterrent and as a form of permanent incapacitation, the death penalty helps to prevent future crime.

Those who believe that deterrence justifies the execution of certain offenders bear the burden of proving that the death penalty is a deterrent. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison. The Ehrlich studies have been widely discredited. In fact, some criminologists, such as William Bowers of Northeastern University, maintain that the death penalty has the opposite effect: that is, society is brutalized by the use of the death penalty, and this increases the likelihood of more murder. Even most supporters of the death penalty now place little or no weight on deterrence as a serious justification for its continued use.

States in the United States that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the U.S. is compared to countries similar to it. The U.S., with the death penalty, has a higher murder rate than the countries of Europe or Canada, which do not use the death penalty.

The death penalty is not a deterrent because most people who commit murders either do not expect to be caught or do not carefully weigh the differences between a possible execution and life in prison before they act. Frequently, murders are committed in moments of passion or anger, or by criminals who are substance abusers and acted impulsively. As someone who presided over many of Texas’s executions, former Texas Attorney General Jim Mattox has remarked, “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you’ll find that the murder was committed under severe drug and alcohol abuse.”

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of life imprisonment. A 2012 report released by the prestigious National Research Council of the National Academies and based on a review of more than three decades of research, concluded that studies claiming a deterrent effect on murder rates from the death penalty are fundamentally flawed. A survey of the former and present presidents of the country’s top academic criminological societies found that 84% of these experts rejected the notion that research had demonstrated any deterrent effect from the death penalty .

Once in prison, those serving life sentences often settle into a routine and are less of a threat to commit violence than other prisoners. Moreover, most states now have a sentence of life without parole. Prisoners who are given this sentence will never be released. Thus, the safety of society can be assured without using the death penalty.

Ernest van den Haag Professor of Jurisprudence and Public Policy, Fordham University. Excerpts from ” The Ultimate Punishment: A Defense,” (Harvard Law Review Association, 1986)

“Execution of those who have committed heinous murders may deter only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of.”

“Most abolitionists acknowledge that they would continue to favor abolition even if the death penalty were shown to deter more murders than alternatives could deter. Abolitionists appear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers.

Deterrence is not altogether decisive for me either. I would favor retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment. Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers not deterred by the thought of imprisonment. Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the possibility, or even the probability, that executing them would not deter others. Whereas the life of the victims who might be saved are valuable, that of the murderer has only negative value, because of his crime. Surely the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.”

“We threaten punishments in order to deter crime. We impose them not only to make the threats credible but also as retribution (justice) for the crimes that were not deterred. Threats and punishments are necessary to deter and deterrence is a sufficient practical justification for them. Retribution is an independent moral justification. Although penalties can be unwise, repulsive, or inappropriate, and those punished can be pitiable, in a sense the infliction of legal punishment on a guilty person cannot be unjust. By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime. The punishment he suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. Thus, the death penalty cannot be unjust to the guilty criminal.”

Full text can be found at PBS.org .

“Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated….

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. In such cases, violence is inflicted by persons heedless of the consequences to themselves as well as to others….

If, however, severe punishment can deter crime, then long-term imprisonment is severe enough to deter any rational person from committing a violent crime.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between l973 and l984, for example, lethal assaults against police were not significantly more, or less, frequent in abolitionist states than in death-penalty states. There is ‘no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment.’ (Bailey and Peterson, Criminology (1987))

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners; the vast majority (84%) were killed in death penalty jurisdictions. During the same period about 2% of all assaults on prison staff were committed by inmates in abolition jurisdictions. Evidently, the threat of the death penalty ‘does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.’ (Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982))

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.”

Click here for the full text from the ACLU website.

Retribution

A just society requires the taking of a life for a life.

When someone takes a life, the balance of justice is disturbed. Unless that balance is restored, society succumbs to a rule of violence. Only the taking of the murderer’s life restores the balance and allows society to show convincingly that murder is an intolerable crime which will be punished in kind.

Retribution has its basis in religious values, which have historically maintained that it is proper to take an “eye for an eye” and a life for a life.

Although the victim and the victim’s family cannot be restored to the status which preceded the murder, at least an execution brings closure to the murderer’s crime (and closure to the ordeal for the victim’s family) and ensures that the murderer will create no more victims.

For the most cruel and heinous crimes, the ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value society places on protecting lives.

Robert Macy, District Attorney of Oklahoma City, described his concept of the need for retribution in one case: “In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lie in some prison with three meals a day, clean sheets, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die.”

Retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.

The emotional impulse for revenge is not a sufficient justification for invoking a system of capital punishment, with all its accompanying problems and risks. Our laws and criminal justice system should lead us to higher principles that demonstrate a complete respect for life, even the life of a murderer. Encouraging our basest motives of revenge, which ends in another killing, extends the chain of violence. Allowing executions sanctions killing as a form of ‘pay-back.’

Many victims’ families denounce the use of the death penalty. Using an execution to try to right the wrong of their loss is an affront to them and only causes more pain. For example, Bud Welch’s daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his first reaction was to wish that those who committed this terrible crime be killed, he ultimately realized that such killing “is simply vengeance; and it was vengeance that killed Julie…. Vengeance is a strong and natural emotion. But it has no place in our justice system.”

The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of a murderer is a similarly disproportionate punishment, especially in light of the fact that the U.S. executes only a small percentage of those convicted of murder, and these defendants are typically not the worst offenders but merely the ones with the fewest resources to defend themselves.

Louis P. Pojman Author and Professor of Philosophy, U.S. Military Academy. Excerpt from “The Death Penalty: For and Against,” (Rowman & Littlefield Publishers, Inc., 1998)

“[Opponents of the capital punishment often put forth the following argument:] Perhaps the murderer deserves to die, but what authority does the state have to execute him or her? Both the Old and New Testament says, “’Vengeance is mine, I will repay,’ says the Lord” (Prov. 25:21 and Romans 12:19). You need special authority to justify taking the life of a human being.

The objector fails to note that the New Testament passage continues with a support of the right of the state to execute criminals in the name of God: “Let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists what God has appointed, and those who resist will incur judgment…. If you do wrong, be afraid, for [the authority] does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer” (Romans 13: 1-4). So, according to the Bible, the authority to punish, which presumably includes the death penalty, comes from God.

But we need not appeal to a religious justification for capital punishment. We can site the state’s role in dispensing justice. Just as the state has the authority (and duty) to act justly in allocating scarce resources, in meeting minimal needs of its (deserving) citizens, in defending its citizens from violence and crime, and in not waging unjust wars; so too does it have the authority, flowing from its mission to promote justice and the good of its people, to punish the criminal. If the criminal, as one who has forfeited a right to life, deserves to be executed, especially if it will likely deter would-be murderers, the state has a duty to execute those convicted of first-degree murder.”

National Council of Synagogues and the Bishops’ Committee for Ecumenical and Interreligious Affairs of the National Conference of Catholic Bishops Excerpts from “To End the Death Penalty: A Report of the National Jewish/Catholic Consultation” (December, 1999)

“Some would argue that the death penalty is needed as a means of retributive justice, to balance out the crime with the punishment. This reflects a natural concern of society, and especially of victims and their families. Yet we believe that we are called to seek a higher road even while punishing the guilty, for example through long and in some cases life-long incarceration, so that the healing of all can ultimately take place.

Some would argue that the death penalty will teach society at large the seriousness of crime. Yet we say that teaching people to respond to violence with violence will, again, only breed more violence.

The strongest argument of all [in favor of the death penalty] is the deep pain and grief of the families of victims, and their quite natural desire to see punishment meted out to those who have plunged them into such agony. Yet it is the clear teaching of our traditions that this pain and suffering cannot be healed simply through the retribution of capital punishment or by vengeance. It is a difficult and long process of healing which comes about through personal growth and God’s grace. We agree that much more must be done by the religious community and by society at large to solace and care for the grieving families of the victims of violent crime.

Recent statements of the Reform and Conservative movements in Judaism, and of the U.S. Catholic Conference sum up well the increasingly strong convictions shared by Jews and Catholics…:

‘Respect for all human life and opposition to the violence in our society are at the root of our long-standing opposition (as bishops) to the death penalty. We see the death penalty as perpetuating a cycle of violence and promoting a sense of vengeance in our culture. As we said in Confronting the Culture of Violence: ‘We cannot teach that killing is wrong by killing.’ 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.’1

We affirm that we came to these conclusions because of our shared understanding of the sanctity of human life. We have committed ourselves to work together, and each within our own communities, toward ending the death penalty.” Endnote 1. Statement of the Administrative Committee of the United States Catholic Conference, March 24, 1999.

The risk of executing the innocent precludes the use of the death penalty.

The death penalty alone imposes an irrevocable sentence. Once an inmate is executed, nothing can be done to make amends if a mistake has been made. There is considerable evidence that many mistakes have been made in sentencing people to death. Since 1973, over 180 people have been released from death row after evidence of their innocence emerged. During the same period of time, over 1,500 people have been executed. Thus, for every 8.3 people executed, we have found one person on death row who never should have been convicted. These statistics represent an intolerable risk of executing the innocent. If an automobile manufacturer operated with similar failure rates, it would be run out of business.

Our capital punishment system is unreliable. A study by Columbia University Law School found that two thirds of all capital trials contained serious errors. When the cases were retried, over 80% of the defendants were not sentenced to death and 7% were completely acquitted.

Many of the releases of innocent defendants from death row came about as a result of factors outside of the justice system. Recently, journalism students in Illinois were assigned to investigate the case of a man who was scheduled to be executed, after the system of appeals had rejected his legal claims. The students discovered that one witness had lied at the original trial, and they were able to find another man, who confessed to the crime on videotape and was later convicted of the murder. The innocent man who was released was very fortunate, but he was spared because of the informal efforts of concerned citizens, not because of the justice system.

In other cases, DNA testing has exonerated death row inmates. Here, too, the justice system had concluded that these defendants were guilty and deserving of the death penalty. DNA testing became available only in the early 1990s, due to advancements in science. If this testing had not been discovered until ten years later, many of these inmates would have been executed. And if DNA testing had been applied to earlier cases where inmates were executed in the 1970s and 80s, the odds are high that it would have proven that some of them were innocent as well.

Society takes many risks in which innocent lives can be lost. We build bridges, knowing that statistically some workers will be killed during construction; we take great precautions to reduce the number of unintended fatalities. But wrongful executions are a preventable risk. By substituting a sentence of life without parole, we meet society’s needs of punishment and protection without running the risk of an erroneous and irrevocable punishment.

There is no proof that any innocent person has actually been executed since increased safeguards and appeals were added to our death penalty system in the 1970s. Even if such executions have occurred, they are very rare. Imprisoning innocent people is also wrong, but we cannot empty the prisons because of that minimal risk. If improvements are needed in the system of representation, or in the use of scientific evidence such as DNA testing, then those reforms should be instituted. However, the need for reform is not a reason to abolish the death penalty.

Besides, many of the claims of innocence by those who have been released from death row are actually based on legal technicalities. Just because someone’s conviction is overturned years later and the prosecutor decides not to retry him, does not mean he is actually innocent.

If it can be shown that someone is innocent, surely a governor would grant clemency and spare the person. Hypothetical claims of innocence are usually just delaying tactics to put off the execution as long as possible. Given our thorough system of appeals through numerous state and federal courts, the execution of an innocent individual today is almost impossible. Even the theoretical execution of an innocent person can be justified because the death penalty saves lives by deterring other killings.

Gerald Kogan, Former Florida Supreme Court Chief Justice Excerpts from a speech given in Orlando, Florida, October 23, 1999 “[T]here is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, [as] prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed.

“And you can make these statements when you understand the dynamics of the criminal justice system, when you understand how the State makes deals with more culpable defendants in a capital case, offers them light sentences in exchange for their testimony against another participant or, in some cases, in fact, gives them immunity from prosecution so that they can secure their testimony; the use of jailhouse confessions, like people who say, ‘I was in the cell with so-and-so and they confessed to me,’ or using those particular confessions, the validity of which there has been great doubt. And yet, you see the uneven application of the death penalty where, in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty. These things begin to weigh very heavily upon you. And under our system, this is the system we have. And that is, we are human beings administering an imperfect system.”

“And how about those people who are still sitting on death row today, who may be factually innocent but cannot prove their particular case very simply because there is no DNA evidence in their case that can be used to exonerate them? Of course, in most cases, you’re not going to have that kind of DNA evidence, so there is no way and there is no hope for them to be saved from what may be one of the biggest mistakes that our society can make.”

The entire speech by Justice Kogan is available here.

Paul G. Cassell Associate Professor of Law, University of Utah, College of Law, and former law clerk to Chief Justice Warren E. Burger. Statement before the Committee on the Judiciary, United States House of Representatives, Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases (July 23, 1993)

“Given the fallibility of human judgments, the possibility exists that the use of capital punishment may result in the execution of an innocent person. The Senate Judiciary Committee has previously found this risk to be ‘minimal,’ a view shared by numerous scholars. As Justice Powell has noted commenting on the numerous state capital cases that have come before the Supreme Court, the ‘unprecedented safeguards’ already inherent in capital sentencing statutes ‘ensure a degree of care in the imposition of the sentence of death that can only be described as unique.’”

“Our present system of capital punishment limits the ultimate penalty to certain specifically-defined crimes and even then, permit the penalty of death only when the jury finds that the aggravating circumstances in the case outweigh all mitigating circumstances. The system further provides judicial review of capital cases. Finally, before capital sentences are carried out, the governor or other executive official will review the sentence to insure that it is a just one, a determination that undoubtedly considers the evidence of the condemned defendant’s guilt. Once all of those decisionmakers have agreed that a death sentence is appropriate, innocent lives would be lost from failure to impose the sentence.”

“Capital sentences, when carried out, save innocent lives by permanently incapacitating murderers. Some persons who commit capital homicide will slay other innocent persons if given the opportunity to do so. The death penalty is the most effective means of preventing such killers from repeating their crimes. The next most serious penalty, life imprisonment without possibility of parole, prevents murderers from committing some crimes but does not prevent them from murdering in prison.”

“The mistaken release of guilty murderers should be of far greater concern than the speculative and heretofore nonexistent risk of the mistaken execution of an innocent person.”

Full text can be found here.

Arbitrariness & Discrimination

The death penalty is applied unfairly and should not be used.

In practice, the death penalty does not single out the worst offenders. Rather, it selects an arbitrary group based on such irrational factors as the quality of the defense counsel, the county in which the crime was committed, or the race of the defendant or victim.

Almost all defendants facing the death penalty cannot afford their own attorney. Hence, they are dependent on the quality of the lawyers assigned by the state, many of whom lack experience in capital cases or are so underpaid that they fail to investigate the case properly. A poorly represented defendant is much more likely to be convicted and given a death sentence.

With respect to race, studies have repeatedly shown that a death sentence is far more likely where a white person is murdered than where a Black person is murdered. The death penalty is racially divisive because it appears to count white lives as more valuable than Black lives. Since the death penalty was reinstated in 1976, 296 Black defendants have been executed for the murder of a white victim, while only 31 white defendants have been executed for the murder of a Black victim. Such racial disparities have existed over the history of the death penalty and appear to be largely intractable.

It is arbitrary when someone in one county or state receives the death penalty, but someone who commits a comparable crime in another county or state is given a life sentence. Prosecutors have enormous discretion about when to seek the death penalty and when to settle for a plea bargain. Often those who can only afford a minimal defense are selected for the death penalty. Until race and other arbitrary factors, like economics and geography, can be eliminated as a determinant of who lives and who dies, the death penalty must not be used.

Discretion has always been an essential part of our system of justice. No one expects the prosecutor to pursue every possible offense or punishment, nor do we expect the same sentence to be imposed just because two crimes appear similar. Each crime is unique, both because the circumstances of each victim are different and because each defendant is different. The U.S. Supreme Court has held that a mandatory death penalty which applied to everyone convicted of first degree murder would be unconstitutional. Hence, we must give prosecutors and juries some discretion.

In fact, more white people are executed in this country than black people. And even if blacks are disproportionately represented on death row, proportionately blacks commit more murders than whites. Moreover, the Supreme Court has rejected the use of statistical studies which claim racial bias as the sole reason for overturning a death sentence.

Even if the death penalty punishes some while sparing others, it does not follow that everyone should be spared. The guilty should still be punished appropriately, even if some do escape proper punishment unfairly. The death penalty should apply to killers of black people as well as to killers of whites. High paid, skillful lawyers should not be able to get some defendants off on technicalities. The existence of some systemic problems is no reason to abandon the whole death penalty system.

Reverend Jesse L. Jackson, Sr. President and Chief Executive Officer, Rainbow/PUSH Coalition, Inc. Excerpt from “Legal Lynching: Racism, Injustice & the Death Penalty,” (Marlowe & Company, 1996)

“Who receives the death penalty has less to do with the violence of the crime than with the color of the criminal’s skin, or more often, the color of the victim’s skin. Murder — always tragic — seems to be a more heinous and despicable crime in some states than in others. Women who kill and who are killed are judged by different standards than are men who are murderers and victims.

The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups.

The majority of Americans who support the death penalty believe, or wish to believe, that legitimate factors such as the violence and cruelty with which the crime was committed, a defendant’s culpability or history of violence, and the number of victims involved determine who is sentenced to life in prison and who receives the ultimate punishment. The numbers, however, tell a different story. They confirm the terrible truth that bias and discrimination warp our nation’s judicial system at the very time it matters most — in matters of life and death. The factors that determine who will live and who will die — race, sex, and geography — are the very same ones that blind justice was meant to ignore. This prejudicial distribution should be a moral outrage to every American.”

Justice Lewis Powell United States Supreme Court Justice excerpts from McCleskey v. Kemp, 481 U.S. 279 (1987) (footnotes and citations omitted)

(Mr. McCleskey, a black man, was convicted and sentenced to death in 1978 for killing a white police officer while robbing a store. Mr. McCleskey appealed his conviction and death sentence, claiming racial discrimination in the application of Georgia’s death penalty. He presented statistical analysis showing a pattern of sentencing disparities based primarily on the race of the victim. The analysis indicated that black defendants who killed white victims had the greatest likelihood of receiving the death penalty. Writing the majority opinion for the Supreme Court, Justice Powell held that statistical studies on race by themselves were an insufficient basis for overturning the death penalty.)

“[T]he claim that [t]his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since [this] claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decision making. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not ‘plac[e] totally unrealistic conditions on its use.’ (Gregg v. Georgia)”

The entire decision can be found here.

Top 10 Pro & Con Arguments

Life without Parole

Retribution

Victims’ Families

Methods of Execution

Medical Professionals’ Participation

Federal Death Penalty

1. Legality

The United States is one of 55 countries globally with a legal death penalty, according to Amnesty International. As of Mar. 24, 2021, within the US, 27 states had a legal death penalty (though 3 of those states had a moratorium on the punishment’s use).

Proponents of the death penalty being legal argue that such a harsh penalty is needed for criminals who have committed the worst crimes, that the punishment deters crime, and that the US Supreme Court has upheld the death penalty as constitutional.

Opponents of the death penalty being legal argue that the punishment is cruel and unusual, and, thus, unconstitutional, that innocent people are put to death for crimes they did not commit, and that the penalty is disproportionately applied to people of color.

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Death Penalty: Arguments For and Against Essay

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Introduction

Arguments against death penalty, arguments for death penalty, death penalty policies around the world.

The area of the current research concerns the death penalty and whether it might be abolished in the future. Various experts have argued against the lethal sentence policies claiming that they are unethical, barbaric, and economically unfavorable. However, in the academic field, some authorities continue to justify this punishment method. The current research reviews various articles and websites concerning the lethal sentence controversies and establishes the correlation between the existing works. As a result, the main flaws within the present scholarship are the unresolved issue of whether death penalty policies are effective or not and whether there are any benefits to society from the lethal sentence. The authorities do not seem to find a consensus on this issue, but there is a prospect that this problem will be resolved in future works.

The first argument against the lethal sentence is a lack of deterrence among criminals. According to Amnesty International Australia (2019), there is no evidence that the prospect of death prevents potential perpetrators. Furthermore, some authorities state that the lethal sentence does not decline the number of crimes and is only used as an instrument of vengeance (Amnesty International, 1997). Another reason to cancel the death penalty is the unnecessary brutality of the process. Despite the introduction of less gruesome methods of killing, such as lethal injection, Deshwal (2017) claims that “sterilized and depersonalized methods of execution do not eliminate the brutality of the penalty” (para. 5). Finally, the majority of the population generally believes that lethal sentences are merely unethical and should be abolished (Jouet, 2020). Ultimately, most experts refer to the mentioned-above arguments to illustrate the obligation to cancel death penalties.

On the contrary, some authorities believe that the lethal sentence is necessary and is a useful tool to prevent potential crimes. The first argument supporting this perspective is retribution for the illegal activity. From the philosophical point of view, as mentioned by Immanuel Kant, the murderer should atone by giving up their own life (Flanders, 2013). Another reason for the lethal sentence is the probability that the perpetrator would kill again after prison. According to Radelet and Borg (2000), after the cancellation of most death penalties in America in 1972, about one percent of the criminals killed again. It might seem as an insignificant number, but ultimately the lethal sentence would have prevented it. As previously mentioned, the death penalty policy does not have evidence to deter people from criminal activity. However, public opinion frequently differs from the statistics gathered by experts. According to Seal (2017), throughout the twentieth-century people extensively considered that the death penalty is obligatory to prevent illegal activity. Therefore, some individuals would only feel safe and secure if the government practices the lethal sentence.

The attitude toward the death penalty varies depending on the regions of the world. In America, the lethal sentence for most crimes was canceled in 1972 by the Supreme Court (Nice, 1992). However, in multiple other countries, the death penalty policies still exist. For instance, while some regions ease restrictions and reduce the number of crimes that are punishable with the lethal sentence, China does the opposite (Lehmann, 2012). Up until the twenty-first century, the Chinese government has purposefully used the death penalty even for non-violent crimes, such as theft or bribes (Lehmann, 2012). Nevertheless, the overall number of countries that have abolished the lethal sentence is continually growing (Hood & Hoyle, 2009). Ultimately, the perspectives regarding the death penalty depend on the region, but more and more governments reject this type of punishment.

Summing up, the opinions about the death penalty vary vastly depending on the countries and the academic experts. Overall, this subject is extremely complicated since the effectiveness of death penalties in terms of criminal deterrence and prevention of potential crimes is almost impossible to prove, and, thus, various perspectives emerge. However, despite the complexity and sensitivity of the topic, most countries have discontinued this policy due to ethical and economical reasons.

Amnesty International. (1997). The death penalty: Criminality, justice and human rights . Refworld. Web.

Amnesty International Australia. (2019). Five reasons to abolish death penalty . Web.

Deshwal, S. (n.d.). Death penalty: Contemporary issues . Indian National Bar Association. Web.

Flanders, C. (2013). The case against the case against the death penalty. New Criminal Law Review: An International and Interdisciplinary Journal, 16 (4), 595-620.

Hood, R., & Hoyle, C. (2009). Abolishing the death penalty worldwide: The impact of a “new dynamic”. Crime and Justice, 38 (1), 1-63.

Jouet, M. (2020). Death penalty abolitionism from the enlightenment to modernity. American Journal of Comparative Law . Web.

Lehmann, E. (2012). The death penalty in a changing socialist state: Reflections on ‘modernity’ from the Mao Era to contemporary China. Honor Theses, 6 , 1-86.

Nice, C. D. (1992). The States and the death penalty. The Western Political Quarterly, 45 (4), 1037-1048.

Radelet, M. L., & Borg, M. J. (2000). The changing nature of death penalty debates. Annual Review of Sociology, 26 , 43-61.

Seal, L. (2017). Perceptions of safety, fear and social change in the public’s pro-death penalty discourse in mid twentieth-century Britain. Crime, Histoire & Sociétés / Crime, History & Societies, 21 (1), 1-24.

Capital Punishment Is Morally and Legally Wrong
Capital Punishment and the Death Penalty
Death Penalty: Every For and Against
Argumentative Paper on the Pros of the Death Penalty
Deterrence theory and scientific findings on the deterrence value of severe punishment
The Significance of Capital Punishment in the UAE
“Dead Man Walking” by Sister Helen Prejean
The Legality and the Processes of the Death Penalty
Criminal Sentencing and the Eighth Amendment
Reasons to Abolish the Death Penalty
Chicago (A-D)
Chicago (N-B)

IvyPanda. (2022, July 12). Death Penalty: Arguments For and Against. https://ivypanda.com/essays/death-penalty-arguments-for-and-against/

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1. IvyPanda . "Death Penalty: Arguments For and Against." July 12, 2022. https://ivypanda.com/essays/death-penalty-arguments-for-and-against/.

Bibliography

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The Death Penalty is Wrong. Every Single Time.

On Friday, March 4, the U.S. Supreme Court reinstated the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev. A federal jury originally sentenced Tsarnaev to death in 2015, a decision that was later overturned by a federal appeals court in 2020. In early 2014, in the aftermath of the Boston Marathon bombing, we expressed sympathy for the city of Boston and denounced the attacks, but remained “categorically opposed to the death penalty.” As the court said, “Just to be crystal clear … Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.” In 2022, our stance has not changed — the death penalty should not exist.

Consider that the Supreme Court’s verdict follows a wave of 13 federal executions carried out by the Trump administration in the span of six months, the first federal killings in 17 years; the 2021 execution of Oklahoma inmate John Marion Grant by lethal injection, during which Grant convulsed and vomited on his gurney as he lay dying; and the Biden administration’s reinstatement of the federal moratorium on the death penalty just last July.

For some, opposing the death penalty may be a matter of principle: Because each human life is special and important, ending it is impermissible in every instance. We are inclined to agree, but such moral absolutes are hard to reconcile with the harsh realities faced by people who have been hurt by acts of violence. It is not our place to argue moral right and wrong with the victims of the Boston bombing or the victims of violence anywhere.

While we can understand why some may support the death penalty, we remain unconvinced that the death penalty should be legally permissible. We don’t believe that the death penalty accomplishes either retribution or determent.

With regard to the former, each individual who has experienced violence has a different idea of what justice and healing look like . Some demand that those responsible pay with their lives, others choose to forgive. No one, however, should have their wounds continually reopened by the long process of appeals and reversals that capital punishment decisions often entail. Even when the perpetrator is executed, it is not as though the pain of losing a loved one will suddenly dissipate. In the end, the death penalty is an irrevocable punishment that is neither guaranteed to be worth the years of anguish spent waiting nor capable of healing trauma caused by violence.

With respect to determent, capital punishment may actually end up doing more harm than good. In cases of ideological violence such as the Boston Marathon bombing, execution can make a martyr of a perpetrator. Far from discouraging future acts of violence, the death penalty risks providing fodder for radicalization and provoking further retaliatory attacks. Not to mention, in the case of suicide attacks where the perpetrator lacks regard for their own life and safety, the death penalty fails immediately to be even a penalty.

Ultimately, we are left with a bleak picture. When confronted with tremendous losses caused by acts of extreme violence, it is understandable for us to seek some sort of action to take — actions that can emphasize our agency and counter the paralyzing feeling of powerlessness. But the death penalty is not this action.

This staff editorial solely represents the majority view of The Crimson Editorial Board. It is the product of discussions at regular Editorial Board meetings. In order to ensure the impartiality of our journalism, Crimson editors who choose to opine and vote at these meetings are not involved in the reporting of articles on similar topics.

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Archive Issues

Journal of Practical Ethics

A journal of philosophy, applied to the real world.

The Death Penalty Debate: Four Problems and New Philosophical Perspectives

Masaki Ichinose

The University of Tokyo

This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate.

I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I will then argue that we should not ignore the so-called “whom-question”, i.e. “To whom should we justify the system of punishment?” I identify three distinct chronological stages to address this problem, namely, “the Harm Stage”, “the Blame Stage”, and “the Danger Stage”.

I will also identify four problems arising from specific kinds of uncertainties present in current death penalty debates: (1) uncertainty in harm, (2) uncertainty in blame, (3) uncertainty in rights, and (4) uncertainty in causal consequences. In the course of examining these four problems, I will propose an ‘impossibilist’ position towards the death penalty, according to which the notion of the death penalty is inherently contradictory.

Finally, I will suggest that it may be possible to apply this philosophical perspective to the justice system more broadly, in particular to the maximalist approach to restorative justice.

1. To whom should punishment be justified?

What, exactly, are we doing when we justify a system of punishment? The process of justifying something is intrinsically connected with the process of persuading someone to accept it. When we justify a certain belief, our aim is to demonstrate reasonable grounds for people to believe it. Likewise, when we justify a system of taxation, we intend to demonstrate the necessity and fairness of the system to taxpayers.

What, then, are we justifying when we justify a system of punishment? To whom should we provide legitimate reasons for the system? It is easy to understand to whom we justify punishment when that punishment is administered by, for example, charging a fine. In this case, we persuade violators to pay the fine by bringing to their attention the harm that they have caused, harm which needs to be compensated. (Please note that I am only mentioning the primitive basis of the process of justification.) While we often generalise this process to include people in general or society as a whole, the process of justification would not work without convincing the people who are directly concerned (in this case, violators), at least theoretically, that this is a justified punishment, despite their subjective objections or psychological opposition. We could paraphrase this point per Scanlon’s ‘idea of a justification which it would be unreasonable to reject’ (1982, p.117). That is to say, in justifying the application of the system of punishment, we should satisfy the condition that each person concerned (especially the violator) is aware of having no grounds to reasonably reject the application of the system, even if they do in fact reject it from their personal, self-interested point of view.

In fact, if the violator is not theoretically persuaded at all in any sense—that is, if they cannot understand the justification as a justification—we must consider the possibility that they suffer some disorder or disability that affects their criminal responsibility.

We should also take into account the case of some extreme and fanatical terrorists. They might not understand the physical treatment inflicted on them in the name of punishment as a punishment at all. Rather, they might interpret their being physically harmed as an admirable result of their heroic behaviour. The notion of punishment is not easily applied to these cases, where the use of physical restraint is more like that applied to wild animals. Punishment can be successful only if those who are punished understand the event as punishment.

This line of argument entirely conforms to the traditional context in philosophy concerning the concept of a “person”, who is regarded as the moral and legal agent responsible for his or her actions, including crimes. John Locke, a 17th-century English philosopher, introduced and established this concept, basing it on ‘consciousness’. According to Locke, a person ‘is a thinking intelligent Being, that has reason and reflection, and can consider it self as it self, the same thinking thing in different times and places; which it does only by that consciousness’ (1975, Book 2, Chapter 27, Section 9). This suggests that moral or legal punishments for the person should be accompanied by consciousnesses (in a Lockean sense) of the agent. In other words, when punishment is legally imposed on someone, the person to be punished must be conscious of the punishment as a punishment; that is, the person should understand the event as a justified imposition of some harm. 1

However, there is a problem here, which arises in particular for the death penalty but not for other kinds of punishment. The question that I raise here is ‘to whom do we justify the death penalty?’ People might say it should be justified to society, as the death penalty is one of the social institutions to which we consent, whether explicitly or tacitly. This is true. However, if my claims above about justification are correct, the justification of the death penalty must involve the condemned convict coming to understand the justification at least at a theoretical level. Otherwise, to be executed would not be considered a punishment but rather something akin to the extermination of a dangerous animal. The question I want to focus on in particular is this: should this justification be provided before administering capital punishment or whilst administering capital punishment?

2. ‘Impossibilism’

Generally, in order for the justification of punishment to work, it is necessary for convicts to understand that this is a punishment before it is carried out and that they cannot reasonably reject the justification, regardless of any personal objection they may have. However, that is not sufficient, because if they do not understand at the moment of execution that something harmful being inflicted is a punishment, then its being inflicted would simply result in mere physical harm rather than an institutional response based on theoretical justification. The justification for punishment must be, at least theoretically, accepted both before and during its application. 2 This requirement can be achieved with regard to many types of punishment, such as fines or imprisonment. However, the situation is radically different in the case of the death penalty, for in this case, when it is carried out, the convict, by definition, disappears. During and (in the absence of an afterlife) after the punishment, the convict cannot understand the nature and justification of the punishment. Can we say then that this is a punishment? This is a question which deserves further thought.

On the one hand, the death penalty, once executed, logically implies the nonexistence of the person punished; therefore, by definition, that person will not be conscious of being punished at the moment of execution. However, punishment must be accompanied by the convict’s consciousness or understanding of the significance of the punishment, as far as we accept the traditional concept of the person as a moral and legal agent upon whom punishment could be imposed. It may be suggested that everything leading up to the execution—being on death row, entering the execution chamber, being strapped down—is a kind of punishment that the convict is conscious of and is qualitatively different from mere incarceration. However, those phases are factors merely concomitant with the death penalty. The core essence of being executed lies in being killed or dying. Therefore, if the phases of anticipation were to occur but finally the convict were not killed, the death penalty would not have been carried out. The death penalty logically results in the convict’s not being conscious of being executed, and yet, for it to be a punishment, the death penalty requires the convict to be conscious of being executed. We could notate this in the form of conjunction in the following way in order to make my point as clear as possible:

~ PCE & PCE

(PCE: ‘the person is conscious of being executed under the name of punishment’)

If this is correct, then we must conclude that the concept of the death penalty is a manifest contradiction in terms. In other words, the death penalty should be regarded as conceptually impossible, even before we take part in longstanding debates between retentionism and abolitionism. This purely philosophical view of the death penalty could be called ‘impossibilism’ (i.e. the death penalty is conceptually impossible), and could be classified as a third possible view on the death penalty, distinct from retentionism and abolitionism. A naïve objection against this impossibilist view might counter that the death penalty is actually carried out in some countries so that it is not impossible but obviously possible. The impossibilist answer to this objection is that, based on a coherent sense of what it means for a punishment to be justified, that execution in such countries is not the death penalty but rather unjustified lethal physical violence .

I am not entirely certain whether the ‘impossibilist’ view would truly make sense in the light of the contemporary debates on the death penalty. These debates take place between two camps as I referred to above:

Retentionism (the death penalty should be retained): generally argued with reference to victims’ feelings and the deterrence effects expected by execution.

Abolitionism (the death penalty should be abolished): generally argued through appeals to the cruelty of execution, the possibility of misjudgements in the trial etc.

The grounds mentioned by both camps are, theoretically speaking, applicable to punishment in general in addition to the death penalty specifically. I will mention those two camps later again in a more detailed way in order to make a contrast between standard debates and my own view. However, my argument above for ‘impossibilism’, does suggest that there is an uncertainty specific to the death penalty as opposed to other types of punishment. I believe that this uncertainty must be considered when we discuss the death penalty, at least from a philosophical perspective. Otherwise we may lose sight of what we are attempting to achieve.

A related idea to the ‘impossibilism’ of the death penalty may emerge, if we accept the fact that the death penalty is mainly imposed on those convicted of homicide. This idea is related to the understanding of death proposed by Epicurus, who provides the following argument (Diogenes Laertius 1925, p. 650-1):

Death, therefore, the most awful of evils, is nothing to us, seeing that, when we are, death is not come, and, when death is come, we are not. It is nothing, then, either to the living or to the dead, for with the living it is not and the dead exist no longer.

We can call this Epicurean view ‘the harmlessness theory of death’ (HTD). If we accept HTD, it follows, quite surprisingly, that there is no direct victim in the case of homicide insofar as we define ‘victim’ to be a person who suffers harm as a result of a crime. For according to HTD, people who have been killed and are now dead suffer nothing—neither benefits nor harms—because, as they do not exist, they cannot be victims. If this is true, there is no victim in the case of homicide, and it must be unreasonable to impose what is supposed to be the ultimate punishment 3 —that is, the death penalty—on those offenders who have killed others.

This argument might sound utterly absurd, particularly if it is extended beyond offenders and victims to people in general, as one merit of the death penalty seems to lie in reducing people’s fear of death by homicide. However, although this argument from HTD might sound bizarre and counterintuitive, we should accept it at the theoretical level, to the extent that we find HTD valid. 4 Clearly, this argument, which is based on the nonexistence of victims, could logically lead to another impossibilist argument concerning the death penalty.

There are many points to be more carefully examined regarding both types of ‘impossibilism’, which I will skip here. However, I must stop to ponder a natural reaction. My question above, ‘To whom do we justify?’, which introduced ‘impossibilism’, might sound eccentric, because, roughly speaking, theoretical arguments of justification are usually deployed in a generalised way and do not need to acknowledge who those arguments are directed at. Yet, I believe that this normal attitude towards justification is not always correct. Instead, our behaviour, when justifying something, focuses primarily on theoretically persuading those who are unwilling to accept the item being justified. If nobody refuses to accept it, then it is completely unnecessary to provide its justification. For instance, to use a common sense example, nobody doubts the existence of the earth. Therefore, nobody takes it to be necessary to justify the existence of the earth. Alternatively, a justification for keeping coal-fired power generation, the continued use of which is not universally accepted due to global warming, is deemed necessary. In other words, justification is not a procedure lacking a particular addressee, but an activity that addresses the particular person in a definite way, at least at first. In fact, it seems to me that the reason that current debates on the death penalty become deadlocked is that crucial distinctions are not appropriately made. I think that such a situation originates from not clearly asking to whom we are addressing our arguments, or whom we are discussing. As far as I know, there have been very few arguments within the death penalty debate that take into account the homicide victim, despite the victim’s unique status in the issue. This is one example where the debate can be accused of ignoring the ‘whom-question’, so I will clarify this issue by adopting a strategy in which this ‘whom-question’ is addressed.

3. Three chronological stages

Following my strategy, I will first introduce a distinction between three chronological stages in the death penalty. In order to make my argument as simple as possible, I will assume that the death penalty is imposed on those who have been convicted of homicide, although I acknowledge there are other crimes which could result in the death penalty. In that sense, the three stages of the death penalty correspond to the three distinct phases arising from homicide.

The first stage takes place at the time of killing; the fact that someone was killed must be highlighted. However, precisely what happened? If we accept the HTD, we should suppose that nothing harmful happened in the case of homicide. Although counterintuitive, let’s see where this argument leads. However, first, I will acknowledge that we cannot cover all contexts concerning the justification of the death penalty by discussing whether or not killing harms the killed victim. Even if we accept for argument’s sake that homicide does not harm the victim, that is only part of the issue. Other people, particularly the bereaved families of those killed, are seriously harmed by homicide. More generally, society as a whole is harmed, as the fear of homicide becomes more widespread in society.

Moreover, our basic premise, HTD, is controversial. Whether HTD is convincing remains an unanswered question. There is still a very real possibility that those who were killed do suffer harm in a straightforward sense, which conforms to most people’s strong intuition. In any event, we can call this first stage, the ‘Harm Stage’, because harm is what is most salient in this phase, either harm to the victims or others in society at large. If a justification for the death penalty is to take this Harm Stage seriously, the overwhelming focus must be on the direct victims themselves, who actually suffer the harm. This is the central core of the issue, as well as the starting point of all further problems.

The second stage appears after the killing. After a homicide, it is common to blame and to feel anger towards the perpetrator or perpetrators, and this can be described as a natural, moral, or emotional reaction. However, it is not proven that blaming or feeling angry is indeed natural, as it has not been proven that such feelings would arise irrespective of our cultural understanding of the social significance of killing. The phenomenon of blaming and the prevalence of anger when a homicide is committed could be a culture-laden phenomenon rather than a natural emotion. Nevertheless, many people actually do blame perpetrators or feel anger towards them for killing someone, and this is one of the basic ideas used to justify a system of ‘retributive justice’. The core of retributive justice is that punishment should be imposed on the offenders themselves (rather than other people, such as the offenders’ family). This retributive impulse seems to be the most fundamental basis of the system of punishment, even though we often also rely on some consequentialist justification favor punishment (e.g. preventing someone from repeating an offence). In addition, offenders are the recipients of blame or anger from society, which suggests that blaming or expressing anger has a crucial function in retributive justice. I will call this second phase the ‘Blame Stage’, which extends to the period of the execution. Actually, the act of blaming seems to delineate what needs to be resolved in this phase. Attempting to justify the death penalty by acknowledging this Blame Stage (or retributive justification) in terms of proportionality is the most common strategy. That is to say, lex talionis applies here—‘an eye for an eye’. This is the justification that not only considers people in general, including victims who blame perpetrators, but also attempts to persuade perpetrators that this is retribution resulting from their own harmful behaviours.

The final stage in the process concerning the death penalty appears after the execution; in this stage, what matters most is how beneficial the execution is to society. Any system in our society must be considered in the light of its cost-effectiveness. This extends even to cultural or artistic institutions, although at first glance they seem to be far from producing any practical effects. In this context, benefits are interpreted quite broadly; creating intellectual satisfaction, for example, is counted as a benefit. Clearly, this is a utilitarian standpoint. We can apply this view to the system of punishment, or the death penalty, if it is accepted. That is, the death penalty may be justified if its benefits to society are higher than its costs. What, then, are the costs, and what are the benefits? Obviously, we must consider basic expenses, such as the maintenance and labour costs of the institution keeping the prisoner on death row. However, in the case of the death penalty, there is a special cost to be considered, namely, the emotional reaction of people in society in response to killing humans, even when officially sanctioned as a punishment. Some feel that it is cruel to kill a person, regardless of the reason.

On the other hand, what is the expected benefit of the death penalty? The ‘deterrent effect’ is usually mentioned as a benefit that the death penalty can bring about in the future. In that case, what needs to be shown if we are to draw analogies with the previous two stages? When people try to justify the death penalty by mentioning its deterrent effect, they seem to be comparing a society without the death penalty to one with the death penalty. Then they argue that citizens in a society with the death penalty are at less risk of being killed or seriously victimised than those in a society without the death penalty. In other words, the death penalty could reduce the danger of being killed or seriously victimised in the future. Therefore, we could call this third phase the ‘Danger Stage’. In this stage, we focus on the danger that might affect people in the future, including future generations. This is a radically different circumstance from those of the previous two stages in that the Danger Stage targets people who have nothing to do with a particular homicide.

4. Analogy from natural disasters

The three chronological stages that I have presented in relation to the death penalty are found in other types of punishment as well. Initially, any punishment must stem from some level of harm (including harm to the law), and this is a sine qua non for the issue of punishment to arise. Blaming and its retributive reaction must follow that harm, and subsequently some social deterrent is expected to result. However, we should carefully distinguish between the death penalty and other forms of punishment. With other forms of punishment, direct victims undoubtedly exist, and those convicted of harming such victims are aware they are being punished. In addition, rehabilitating perpetrators in order for them to return to society—one aspect of the deterrent effect—can work in principle. However, this aspect of deterrence cannot apply to the death penalty because executed criminals cannot be aware of being punished by definition, and the notion of rehabilitation does not make sense by definition. Only this quite obvious observation can clarify that there is a crucial, intrinsic difference or distinction between the death penalty and other forms of punishment. Theories about the death penalty must seriously consider this difference; we cannot rely on theories that treat the death penalty on a par with other forms of punishment.

Moreover, the three chronological stages that have been introduced above are fundamentally different from each other. In reality, the subjects or people that we discuss and on whom we focus are different from stage to stage. In this respect, one of my points in this article is to underline the crucial need to discuss the issues of the death penalty by drawing a clear distinction between those stages. I am not claiming that only one of those stages is important. I am aware that each stage has its own significance; therefore, we should consider all three. However, we should be conscious of the distinctions when discussing the death penalty.

To make my point more understandable, I will suggest an analogy with natural disasters. Specifically, I will use as an analogy the biggest earthquake in Japan in the past millennium—the quake of 11 March 2011 (hereafter the 2011 quake). Of course, at first glance, earthquakes are substantially different from homicides. However, there is a close similarity between the 2011 quake and homicides, because although most of the harm that occurred was due to the earthquake and tsunami, in fact people were also harmed and killed during the 2011 quake at least partially due to human errors, such as the failure of the government’s policy on tsunamis and nuclear power plants. Thus, it is quite easy in the case of the 2011 quake to distinguish between three aspects, all of which are different from each other.

(1) We must recognise victims who were killed in the tsunami or suffered hardship at shelters. 5 This is the core as well as the starting point of all problems. What matters here is rescuing victims, and expressing our condolences.

(2) Then we will consider victims and people in general who hold the government and the nuclear power company responsible for political and technical mistakes. What usually matters here is the issue of responsibility and compensation.

(3) Finally, we can consider people’s interests in improving preventive measures taken to reduce damages by tsunami and nuclear-plant-related accidents in the future. What matters in this context is the reduction of danger in the future by learning from the 2011 quake.

Nobody will fail to notice that these three aspects are three completely different issues, which can be seen in exactly the same manner in the case of the death penalty. Aspects (1), (2), and (3) correspond respectively to the Harm Stage, the Blame Stage, and the Danger Stage. Undoubtedly, none of these three aspects should be ignored and they actually appear in a mutually intertwined manner: the more successful the preventive measures are, the fewer victims will be produced by tsunami and nuclear-plant accidents in the future. Those aspects affect each other. Likewise, we must consider each of the three stages regarding the death penalty.

5. Initial harm

The arguments thus far provide the basic standpoint that I want to propose concerning the debates on the death penalty. I want to investigate the issue of the death penalty by sharply distinguishing between these three stages and by simultaneously considering them all equally. By following this strategy, I will demonstrate that there are intrinsic uncertainties, and four problems resulting from those uncertainties, in the system of the death penalty. In so doing I will raise a novel objection to the contemporary debate over the death penalty.

Roughly speaking, as I have previously mentioned, the death penalty debate continues to involve the two opposing views of abolitionism and retentionism (or perhaps, in the case of abolitionist countries, revivalism). It seems that the main arguments to support or justify each of the two traditional views (which I have briefly described in section 2 above) have already been exhausted. What matters in this context is whether the death penalty can be justified, and then whether—if it is justifiable—it should be justified in terms of retributivism or utilitarianism. That is the standard way of the debate on the death penalty. For example, when the retributive standpoint is used to justify the death penalty, the notion of proportionality as an element of fairness or social justice might be relevant, apart from the issue of whether proportionality should be measured cardinally or ordinally (see von Hirsch 1993, pp. 6-19). In other words, if one person has killed another, then that person too ought to be killed—that is, executed—in order to achieve fairness. However, as other scholars such as Tonry (1994) have argued, it is rather problematic to apply the notion of proportionality to the practice of punishment because it seems that there is no objective measure of offence, culpability, or responsibility. Rather, the notion of parsimony 6 is often mentioned in these contexts as a more practical and fairer principle than the notion of proportionality.

However, according to my argument above, such debates are inadequate if they are simply applied to the case of the death penalty. Proportionality between which two things is being discussed? Most likely, what is considered here is the proportionality between harm by homicide (where the measured value of offence might be the maximum) and harm by execution. However, I want to reconfirm the essential point. What specifically is the harm of homicide? Whom are we talking about when we discuss the harm of homicide? As I previously argued, citing Epicurus and his HTD, there is a metaphysical doubt about whether we should regard death as harmful. If a person simply disappears when he or she dies and death is completely harmless as HTD claims, then it seems that the retributive justification for the death penalty in terms of proportionality must be nonsense, for nothing at all happens that should trigger the process of crime and punishment. Of course, following HTD, the execution should be similarly regarded as nonsensical. However, if that is the case, the entire institutional procedure, from the perpetrator’s arrest to his or her execution, must be considered a tremendous waste of time, labour, and money.

Some may think that these kinds of arguments are merely empty philosophical abstractions. That may be. However, it is not the case that there is nothing plausible to be considered in these arguments. Consider the issue of euthanasia. Why do people sometimes wish to be euthanised? It is because people can be relieved of a painful situation by dying. That is to say, people wishing to be euthanised take death to be painless, i.e. harmless, in the same manner as HTD. This idea embedded in the case of euthanasia is so understandable that the issue of euthanasia is one of the most popular topics in ethics; however, if so, Epicurus’s HTD should not be taken as nonsensical, for HTD holds in the same way as the idea embedded in the case of euthanasia that when we die, we have neither pain nor any other feeling. What I intend to highlight here is that we must be acutely aware that there is a fundamental problem concerning the notion of harm by homicide, if we want to be philosophically sincere and consistent 7 .

In other words, I assert that the contemporary debate over the death penalty tends to lack proper consideration for the Harm Stage in which victims themselves essentially matter, although that stage must be the very starting point of all issues. We must understand this pivotal role of the Harm Stage before intelligently discussing the death penalty. Of course, in practice, we can discuss the death penalty in a significant and refined manner without investigating the Harm Stage. For example, according to Goldman, one of the plausible positions regarding the justification for punishment in general is a position that combines both retributivism and utilitarianism. Mentioning John Rawls and H. L. A. Hart, Goldman writes (1995, p. 31):

Some philosophers have thought that objections to these two theories of punishment could be overcome by making both retributive and utilitarian criteria necessary for the justification of punishment. Utilitarian criteria could be used to justify the institution, and retributive to justify specific acts within it.

Goldman argues, however, that this mixed position could result in a paradox regarding how severe the punishment to be imposed on the guilty should be, even though this position avoids punishing the innocent (ibid., p.36):

While the mixed theory can avoid punishment of the innocent, it is doubtful that it can avoid excessive punishment of the guilty if it is to have sufficient effect to make the social cost worthwhile.

This argument is useful in providing a moral and legal warning to society not to punish offenders more severely than they deserve, even if that punishment is more effective in deterring future crimes. I frankly admit that Goldman’s suggestion goes to the essence of the concept of justice. However, I must also say that if his argument is applied to the death penalty, then it has not yet touched the fundamental question that forms the basis of the whole issue: whose harm should we discuss? Is it appropriate not to discuss the Harm Stage? Alternatively, I am raising the following question: who is the victim of homicide? At the very least, I think we should admit that this very question is the crucial one constituting the first problem on the death penalty, the Uncertainty of Harm.

6. Feeling of being victimised

Next, I will examine another kind of uncertainty that is specific to the Blame Stage; the idea of retribution matters here. As far as the Japanese context for the death penalty is concerned, according to statistical surveys of public opinion, people tend to strongly support the death penalty in the case of particularly violent homicides in which they are probably feeling particularly victimised. If the death penalty were abolished, it seems that the abolition would be extremely unfair to victims of homicide, as the rights of victims (i.e. rights of life, liberty, property, and so on) would be denied by being killed, whereas those of perpetrators would be excessively protected. Obviously, the notion of retributive proportionality or equilibrium is the basis for this argument. To put it another way, this logic of retribution aims at justifying the death penalty in terms of its achieving equilibrium between the violated rights of victims and the deprived rights of perpetrators in the name of punishment. Is this logic perfectly acceptable? Emotionally speaking, I want to say yes. We Japanese might even say that perpetrators should gallantly and bravely kill themselves to take responsibility for their actions, as we have a history of the samurai who were expected to conduct hara-kiri when they did something shameful. However, theoretically speaking, we cannot accept this logic immediately, because there are too many doubtful points. Those doubts as a whole constitute the second problem concerning the death penalty.

First, we must ask, as well as in the previous section, on the issue of feeling victimised, whom are we discussing? Whose feelings and whose rights matter? Direct victims in the case of homicide do not exist by definition. Then a question arises: why can substitutes (prosecutors and others) or the bereaved family ask for the death penalty based on their feelings rather than the direct victim’s feeling? How are they qualified to ask for such a stringent punishment when they were not the ones killed? The crucial point to be noted here is that the bereaved family is not identical with the direct victim. Second, even if it is admitted that the notion of the victim’s emotional harm are relevant to sentencing (and at least in the sense of emotional harm the bereaved family’s suffering I would agree that this makes them certainly the principal victims even if not the direct victim), it must be asked: can we justify an institution based on a feeling? This question is a part of the traditional debate concerning the moral sense theory. We have repeatedly asked whether social institutions can be based on moral sense or human feeling, when such sense or feeling cannot help but be arbitrary because those, after all, are subjective. The question is still unanswered. Third, if the feelings of being victimised justify the death penalty, then could an accidental killing or involuntary manslaughter be included in crimes that deserve the death penalty? Actually, the feelings of the bereaved family in the case of accidental killing could be qualitatively the same as in the case of voluntary homicide. However, even countries which adopt the death penalty do not usually prescribe that execution is warranted for accidental killing. Fourth, I wonder whether the bereaved family who feel victimised always desire the execution of the killer. It could be that they consider resuming their daily lives more important than advocating the execution of the murderer who killed their family member. As a matter of practical fact, executions of perpetrators need have nothing to do with supporting bereaved families. Fifth, if we accept the logic in which the death penalty is justified by the bereaved family’s feeling of being victimised, how should we deal with cases where the person who was killed was alone in the world, with no family? If there is no bereaved family, then no one feels victimised. Is the death penalty unwarranted in this case? In any case, as these questions suggest, we should be aware that retributive justification based upon the feeling of being victimised is not as acceptable as we initially expected. Once again, there is uncertainty here. Uncertainty of blame leads to the second problem concerning the death penalty.

7. Violation and forfeiture

Of course, the retributive justification for the death penalty does not have to depend upon the feeling of being victimised alone, even if the primitive basis for it might lie in human emotion. The theoretical terminology of human rights themselves (rather than emotional feeling based on the notion of rights) could be used as justification: if a person violates another’s rights (to property, freedom, a healthy life, etc.), then that person must forfeit his or her own rights in proportion to the violated rights. This can be regarded as a formulation of the system of punishment established in the modern era that is theoretically based upon the social contract theory. The next remark of Goldman confirms this point (1995, p.33):

If we are asked which rights are forfeited in violating the rights of others, it is plausible to answer just those rights that one violates (or an equivalent set). One continues to enjoy rights only as long as one respects those rights in others: violation constitutes forfeiture . . . Since deprivation of those particular rights violated is often impracticable, we are justified in depriving a wrongdoer of some equivalent set, or in inflicting harm equivalent to that which would be suffered in losing those same rights.

However, the situation is not so simple, particularly in connection with the death penalty. In order to clarify this point, we have to reflect, albeit briefly, on how the concept of human rights has been historically established. I will trace the origin of the concept of human rights by referring to Fagan’s overall explanation. According to Fagan (2016, Section 2):

Human rights rest upon moral universalism and the belief in the existence of a truly universal moral community comprising all human beings . . . The origins of moral universalism within Europe are typically associated with the writings of Aristotle and the Stoics.

Followed by the remark:

Aristotle unambiguously expounds an argument in support of the existence of a natural moral order. This natural order ought to provide the basis for all truly rational systems of justice . . . The Stoics thereby posited the existence of a universal moral community effected through our shared relationship with god. The belief in the existence of a universal moral community was maintained in Europe by Christianity over the ensuing centuries.

This classical idea was linked during the 17th and 18th centuries to the concept of ‘natural law’ including the notion of ‘natural rights’ that each human being possesses independently of society or policy. ‘The quintessential exponent of this position was John Locke . . . Locke argued that natural rights flowed from natural law. Natural law originated from God’ (ibid.). Fagan continues (ibid.):

Analyses of the historical predecessors of the contemporary theory of human rights typically accord a high degree of importance to Locke’s contribution. Certainly, Locke provided the precedent of establishing legitimate political authority upon a rights foundation. This is an undeniably essential component of human rights.

Although, of course, we should take post-Lockean improvement including Kantian ideas into account to fully understand contemporary concepts of human rights, we cannot deny that Locke’s philosophy ought to be considered first.

As is well known, Locke’s argument focuses on property rights. He put forth the idea that property rights were based on our labour. Thus, his theory is called ‘the labour theory of property rights’. Let me quote the famous passage I have in mind (Locke 1960, Second Treatise, Section 27):

Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Works of his Hands, we may say, are properly his.

This idea could cover any kind of human rights such as those for living a healthy life, liberty, and property, because human rights are supposed to be owned by us. For example, H. L.A. Hart once argued that legal rights are nothing but legal powers to require others to meet correlative obligations, and then pointed out that; ‘we also speak of the person who has the correlative right as possessing it or even owning it’ (Hart 1982, p.185). If this is the case, we can make property rights representative of all human rights.

However, if we follow Locke’s theory (and many countries, including Japan, still do), then it logically follows that what we cannot gain by our labour by definition cannot be objects of human rights. How does Locke’s idea apply to our life itself (rather than simply living a healthy life)? Are we able to acquire our life itself by our labour? No, we cannot. We can realise a healthy life by making an effort to be moderate, but we cannot create our lives. We are creatures or animals; therefore, our lives are not something that we ourselves made by our labour. Locke uses the concept of power (as Hart does) when he discusses various aspects of property rights. Among those, we should pay particular attention to the following (Locke 1960, Second Treatise, Section 23):

For a Man, not having the Power of his own life, cannot, by Compact, or his own Consent, enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he pleases.

Locke also wri tes (1960, Section 24):

No Man can, by agreement, pass over to another that which he hath not in himself, a Power over his own life.

Obviously, Locke assumes that we have no property rights over our own lives or bodies themselves, or more precisely, no property rights in controlling and destroying our own lives as a whole; therefore, we cannot alienate those rights to others. We cannot alienate or forfeit what we do not have. If this is the case and we presuppose the formulation of the system of punishment introduced above in terms of violation and forfeiture, what would result? The answer is clear. Our lives themselves are conceptually beyond the terminology of human rights, and thus, if the death penalty is defined as a punishment requiring the forfeiture of the perpetrator’s right to life, the death penalty should be regarded as conceptually contradictory or impossible. We cannot lose tails, as we do not have tails. Likewise, we cannot own our lives (i.e. we have no property rights in our life itself), so we cannot lose our lives, at least in such a sense as forfeiture of human rights. This is the third route to an ‘impossibilist’ view of the death penalty. This argument depends heavily on Locke’s original theory. Nevertheless, as long as we have to consider Locke’s classical view seriously in order to discuss the relation between punishment and human rights, we must be aware that we could be involved in theoretical uncertainty in justifying the death penalty through the notion of human rights in a retributivist flavour, as the argument thus far suggests. This is the very puzzle that I want to propose as the third problem concerning the death penalty debates.

Moreover, we must acknowledge that retributive ideas in the Blame Stage usually include a kind of evaluation of the psychological state of the agent’s behaviour at the time of the crime as a matter of legal fact. In other words, rationality, freedom, or mens rea are usually needed for agents to be judged guilty. However, from a strictly philosophical perspective, we should say that it is far from easy in principle to confirm those states in the past. Indeed, this psychological trend seems to cause controversy in court proceedings, as seen, for example, in the American context known as ‘battered-woman syndrome’. If a woman who has been routinely battered by her partner suddenly fights back and kills her partner, American courts often find her not guilty. People wonder whether such an evaluation concerning battered women could be correctly made without arbitrariness. Additionally, philosophical debates on free will and the development of the brain sciences must be considered. Some philosophers assert that we have no free will because our personality and actions are intrinsically governed by external factors, such as our environments or biological conditions, which are definitely beyond our control. This philosophical standpoint is often called ‘hard incompatibilism’ (see Strawson 2008). In this respect, my analogy to a natural disaster could be seen as appropriate, as our actions might be taken to be just natural phenomena at the end of the day. 8 Furthermore, brain sciences often provide shocking data to suggest that our will may be controlled by brain phenomena occurring prior to our consciousness, as shown by Benjamin Libet. In view of such contemporary arguments, we have little choice but to say that we cannot be perfectly certain whether a given perpetrator who committed homicide is truly guilty, as long as we adopt the present standard for judging the psychological states of offenders in court. To sum up, the third problem for the death penalty is the difficulty in knowing whether someone has property in their life itself as well as uncertainty about the mental state of the accused, this is the Uncertainty of Rights Violation.

8. The deterrent effect

Finally, I will examine some problems in the Danger Stage. What matters in this context is the utilitarian justification for the death penalty; I will focus on what is called the ‘deterrent effect’. Firstly, I would like to say that the death penalty undoubtedly has some deterrent effect. This is obvious if we imagine a society where violators of any laws, including minor infractions such as a parking ticket or public urination, must be sentenced to death. I believe that the number of all crimes would dramatically reduce in that society, although it would constitute a horrible dystopia. The argument for the deterrent effect of the death penalty probably arises from the same line of ‘common sense’ thinking. For example, Pojman says, ‘there is some non-statistical evidence based on common sense that gives credence to the hypothesis that the threat of the death penalty deters and that it does so better than long prison sentences’ (Pojman 1998, pp. 38-39). Specifically, this deterrent effect presupposes the utility calculus that a human being conducts, whether consciously or unconsciously, in terms of ‘weighing the subjective severity of perceived censure and the subjective probability of perceived censure against the magnitude of the desire to commit the offence and the subjective probability of fulfilling this desire by offending’ (Beyleveld 1979, p. 219). Therefore, if we presuppose the basic similarity of human conditions, it may be plausible to state the following about the deterrent effect of punishment: ‘this can be known a priori on the basis of an analysis of human action’ (ibid., p. 215). However, in fact, the death penalty in many countries is restricted to especially heinous crimes, such as consecutive homicides (although some countries apply the death penalty to a wider range of crimes), which suggests that we must conduct empirical studies, case by case, if we want to confirm the deterrent effect of the death penalty. Therefore, the question to be asked regarding the deterrent effect is not whether the death penalty is actually effective, but rather how effective it is in restricted categories of crimes. What matters is the degree.

There are many statistical surveys concerning this issue. In particular, an economic investigation by Ehrlich is often mentioned as a typical example. After examining detailed statistical data and taking into account various factors, such as race, heredity, education, and cultural patterns, Ehrlich suggest s (1975, p. 414):

An additional execution per year over the period in question [i.e., 1935-1969] may have resulted, on average, in 7 or 8 fewer murders.

Of course, this estimate includes too many factors and presumptions to be perfectly correct. Ehrlich himself is aware of this and thus says (ibid.):

It should be emphasized that the expected tradeoffs computed in the preceding illustration mainly serve a methodological purpose since their validity is conditional upon that of the entire set of assumptions underlying the econometric investigation … however … the tradeoffs between executions and murders implied by these elasticities are not negligible, especially when evaluated at relatively low levels of executions and relatively high level[s] of murder.

Ehrlich’s study drew considerable criticism, most of which pointed out deficiencies in his statistical methodology. Therefore, at this moment, we should say that we are able to infer nothing definite from Ehrlich’s study, although we must value the study as pioneering work.

Van den Haag proposes an interesting argument based upon uncertainty specific to the deterrent effect of the death penalty. He assumes two cases, namely, case (1), in which the death penalty exists, and case (2), in which the death penalty does not exist. In each case there is risk or uncertainty. On the one hand, in case (1), if there is no deterrent effect, the life of a murderer is lost in vain, whereas if there is a deterrent effect, the lives of some murderers and innocent victims will be saved in the future. On the other hand, in case (2), if there is no deterrent effect, the life of a convicted murderer is saved, whereas if there is a deterrent effect, the lives of some innocent victims will be lost in the future (Van den Haag 1995, pp. 133-134). Conway and Pojman explain this argument using the following table, ‘The Best Bet Argument’, which I have modified slightly, having DP stand for the death penalty, and DE the deterrent effect:

save: murderers and innocent

victims in the future

lose: convicted murderer

save: nothing affected

lose: convicted murderer

save: convicted murderer

lose: innocent victims in the

future

save: convicted murderer

lose: nothing affected

Following this table, Conway assumes (after Van den Haag’s suggestion that the life of a convicted murderer is not valued more highly than that of the unknown victims) numerical values about each case (each numerical number stands for not a number of people but a hypothetical value for a person to be saved or killed) :

a murderer saved +5

a murderer executed -5

an innocent saved +10

an innocent murdered -10

Moreover, he assumes that for each execution, only two innocent lives are spared (i.e. he assumes the deterrent effect to be almost the minimum). Then, consequently, executing convicted murderers turns out to be a good bet (Conway 1995, pp. 265-266; Pojman 1998, pp. 40-41).

9. Negative causation and where to give priority

Van den Haag’s ‘Best Bet Argument’ sounds quite interesting. However, Conway has already proposed a fundamental challenge to this argument: it mistakenly regards the actual death of convicted murderers as being on a par with the possible death of innocent victims in the future (Conway 1995, pp. 269-270). This is confusing or possibly a rhetorical sleight of hand. I think that Conway’s reaction to Van den Haag’s argument is a reasonable one.

As I approach my conclusion, I will propose two problems with Van den Haag’s argument. First, I want to acknowledge that any arguments, including Van den Haag’s, supporting the death penalty in terms of its deterrent effect seem to presuppose a causal relationship between the existence of the death penalty and people not killing others. For example, Pojman writes, ‘the repeated announcement and regular exercise of capital punishment may have deep causal influence’ (1998, p. 48). However, epistemologically speaking, that presupposition is extremely hard to confirm, because the effect of this causal relationship is not a positive, but rather a negative event, which is the event of not killing others. This has something to do with the philosophical problem of how to understand negative properties. By negative properties we mean that, for example, my room is not full of seawater; my room does not consist of paper; my room is not melting us, etc. Such descriptions by negative properties can be made almost endlessly. In other words, one identical event described by a positive property (e.g., this room is well lit) can be re-described in infinite ways in terms of negative properties. Take the example that I am now at my computer in Tokyo, writing a paper. This event can also be described as ‘I am not eating’, ‘I am not sleeping’, ‘I am not killing others’ (!), etc. The positive event, ‘I am writing a paper now’, can be understood through a causal relationship. The event was most likely caused by my intention to do so, which was caused by my sense of duty as a professor, etc. How, then, could we understand the negative description of my action, ‘I am not killing others’? Was this caused by the existence of the death penalty in Japan?

Perhaps I was completely unaware of the existence of the death penalty in Japan when I wrote a paper without killing others. Could the death penalty be its cause? Could the negative event ‘I am not killing others’ be an effect of the death penalty? It is hard to say so.

This problem is the same as the problem of ‘causation by absence’ or ‘omission-involving causation’. Generally, causation by absence is usually examined in the form of answering a question about whether nothingness can cause something. For example, David Lewis discusses a question about how a void (understood as being entirely empty or nothing at all, differing from a vacuum) is regarded as a cause of something (Lewis 2004). He says, ‘If you were cast into a void, it would cause you to die in just a few minutes. It would suck the air from your lungs. It would boil your blood. It would drain the warmth from your body. And it would inflate enclosures in your body until they burst’ (ibid., p.277). However, the problem is that the void is nothing. ‘When the void sucks away the air, it does not exert an attractive force on the air’ (ibid.). Furthermore, another, perhaps harder problem would arise. We can say, ‘If I defended you from being cast into a void, you would not die’. Namely, my omission to defend you would cause you to die. However, should only my omission matter? What of your brother’s omission to defend you? Or the Prime Minister of the UK’s omission to defend you? Are not all of those qualified to be the cause of your death, as least as long as we adopt a common-sense counterfactual analysis of causation? As this argument suggests, in the context of the current debate on this problem, the most troublesome phase is that ‘too many’ absences can be supposed to cause a particular effect. I quote Menzies, who says (2004, p.145):

I am writing this essay at my computer. If, however, there were nerve gas in the air, or I were attacked with flamethrowers, or struck by a meteor shower, I would not be writing the essay. But it is counterintuitive to say that the absence of nerve gas, flamethrower attack, and meteor strike are causes of my writing the essay.

This example takes the issue of absence as a cause, but simultaneously his example refers to the case of effect as absence (not writing the essay). As this shows, the current debate on the problem of causation by absence could extend to the case of effect as absence. In any case, what matters is a possibility that ‘too many’ absences can cause something, and something can cause ‘too many’ absences (Menzies calls this problem ‘the problem of profligate causation’ (ibid., pp.142-145). Then the deterrent effect of the death penalty is definitely classified as a case of absence as effect rather than cause. In other words, the absence of homicide (as effect) matters, whereas in this case execution (as cause) is presupposed to exist. It seems that the current debate on causation by absence is highly likely to contribute to discussing the problem of the deterrent effect.

Of course, someone may counter my argument by saying that what matters in this context is a statistical correlation between the number of executions and the number of homicides, which could be confirmed in an empirical way. I admit that the statistical correlation plays a crucial role here, even though we must simultaneously acknowledge that what is called ‘randomized controlled trial’, the most reliable, statistical methodology to confirm causal relations, is unfeasible due to the nature of the problem. Actually, this kind of correlation is too rough to predict the causal relationship between those, although the causation really matters. Causes of a reduction or increase in the number of homicides can be interpreted or estimated in various ways, considering confounding factors, such as education, economic situation, urban planning, and so on. Therefore, in principle, there always remains the possibility that the apparent correlation between the death penalty and the reduction of homicides is merely accidental. For example, there may be another, common cause, that brings about both people’s tendency to support the death penalty and the reduction of homicides 9 . We should recognise that there is intrinsic uncertainty here. These difficulties concerning causal relations give rise to a fourth problem related to the death penalty debates – the Uncertainty of Causal Consequences.

Incidentally, let me now return to my distinction of the three stages regarding the death penalty. Obviously, the issue of the deterrent effect belongs primarily to the Danger Stage. Yet it is vital to consider the Harm Stage. How can the deterrent effect affect the Harm Stage? I must say that the retentionist’s argument, in terms of the deterrent effect of the death penalty, completely dismisses this essential point. We need only recall the analogy of the 2011 quake in Japan. ‘Retentionism’ based upon the deterrent effect corresponds to aspect (3), where the improvement of the preventive system matters. This is important, of course, but cannot be a priority. Priority lies in the issues of how to deal with the actual harm that the victims have already suffered (specifically referring to the bereaved family or others in the case of homicide and the death penalty). Without consideration of how to cope with the harm, even if the theory seriously considers the innocent victims in the future, the retentionists’ theory can hardly be persuasive.

It is true that the retentionists’ theory based on the deterrent effect appropriately considers the person harmed in the process of punishment. For example, Walker considers such a phase in the process of punishment as one of the possible objections against retentionism based on the deterrent effect by saying: ‘if the benefit excludes the person harmed this too is nowadays regarded by many people as morally unacceptable’ (Walker 1980, p. 65). However, as the context clearly shows, by ‘the person harmed’ he means the person punished. He does not mention the initial harm suffered by victims. This problem is concerned with my previous claim; that is, we have to consider the ‘whom-question’ when we discuss the justification of punishment. Whom are we discussing? Whose benefit do we consider? In the face of victims before our eyes, can we emphasise only the improvement of preventive systems for the future? Evidently, actual victims are the first to be helped, although obviously it is not at all bad to simultaneously consider the preventive system in the future. It is necessary for us to respect basic human rights and the human dignity of perpetrators and innocent people in the future; however, that respect must be in conjunction with our first taking care of actual victims. We ought not to get our priorities wrong.

10. Prospects

I have indicated that the debates on the death penalty are inevitably surrounded by four problems over specific kinds of uncertainties: uncertainty concerning the victim of homicide, uncertainty in justifying the death penalty from the feeling of being victimised, uncertainty in justifying the death penalty on the basis of human rights, and uncertainty over negative causation. In the course of examining these problems, I have proposed the option of developing an ‘impossibilist’ position about the death penalty, which I am convinced, deserves further investigation. However, being surrounded by theoretical problems and uncertainties might be more or less true of any social institution. My aim is only to suggest how the death penalty should be understood as involving uncertainties from a philosophical perspective. Most likely, if there is something practical that I can suggest based on my argument, then what we might call a ‘Harm-Centred System’ may be introduced as a relatively promising option instead of, or in tandem with, the death penalty. What I mean by this is a system in which we establish as a priority redressing actual harm with regard to legal justice, where ‘actual harm’ only implies what the bereaved family suffer from, as the direct victims have already disappeared in the case of homicide. In other words, I think that something akin to the maximalist approach to restorative justice 10 or some hybrid of the traditional justice system and the restorative justice system should be seriously considered, although we cannot expect perfect solutions exempt from all of the above four problems. It is certainly worth considering whether some element of restorative justice can play a significant role in the best theory of punishment.

In any case, my argument is at most a philosophical attempt to address problems. How to apply it to the practice of the legal system is a question to be tackled in a future project.

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1. Strangely, few Locke scholars have seriously tried to understand the Lockean meaning of punishment, which is developed in his Second Treatise ,(Locke 1960), in the light of his theory of personal identity based upon ‘consciousness’, which is discussed in his Essay Concerning Human Understanding . Taking into account the fact that ‘person’ appears as the key word in both works of Locke, we must bridge the gap between his two works by rethinking the universal significance of ‘person’ in his arguments. There were, however, some controversies concerning how Locke evaluates the death penalty. See Calvert (1993) and Simmons (1994).

2. There is an additional question about whether justification is needed after the execution when the convict is no longer around, in addition to ‘before’ and ‘during’. According to my understanding of justification, the process of justification must begin with making each person concerned understand what there is no reason to reject, but that is just a starting, necessary point. Justification must go beyond the initial phase to acquiring general consent from society. In this sense, justification seems to be needed even ‘after’ the execution. Actually, if there is no need for justification after the execution, that sounds less like punishment based on a system of justice than merely physical disposal.

3. Is it true that the death penalty is the ultimate punishment? Can we not suppose that the death penalty is less harmful than a life sentence or very lengthy incarceration? However, this view regarding the death penalty as less harmful than a lifelong sentence could lead to a paradox. If this order of severity as punishment is valid, it may be possible to reduce the lifelong sentence (due to an amnesty, some consideration on the prisoner’s rehabilitation, or something like that) to the death penalty. If this is the case, prisoners given the lifelong sentence will not make an effort at all to rehabilitate themselves, due to fear of the sentence being reduced to the death penalty. In addition, if a person is likely to be sentenced to death, the person might try to commit a more heinous crime, perhaps even in the court in order to be given a more severe sentence, i.e. a life sentence in prison. That is a paradox drawn from human nature.

4. On the current debates on ‘HTD’ of Epicurus, see Fischer (1993). Of course, there are lots of objections against the Epicurean view. The most typical objection is that death deprives people of their chance to enjoy life, and therefore death is harmful. However, it seems to me that “whom-question” must be raised again here. To whom is the deprivation of this chance harmful? In any case, the metaphysics of death is a popular topic in contemporary philosophy, which should involve not only metaphysical issues but also ethical and epistemological problems.

5. In fact, the hardships suffered by those forced to flee to shelters constituted the main problem resulting from the nuclear power plants accident. In general, radiation exposure is the most well-known problemarising from nuclear power plant accidents, but it is not always the case. In particular in the case of the Fukushima nuclear power plant accident in Japan, the overestimation of the danger of radiation exposure, and evacuation activities resulting from that overestimation, caused the biggest and the most serious problems including many of the deaths. We always have to take the risk-tradeoff into account. Radiation exposure is just one risk, and is not the only risk to be considered. See Ichinose (2016).

6. The notion of parsimony was newly offered to avoid a fundamental drawback of the standard retributive system, whether based on cardinal or ordinal proportionality: the standard system tends to inflict excessive, cruel punishment, as its criterion of measuring wrongness is not exempt from being arbitrary. In contrast, the newly offered system could hold inflicted punishment ‘as minimally as possible, consistent with the vague limits of cardinal desert’ (Walen 2015) in terms of introducing an idea of parsimony. The notion of parsimony could make the retributive system of punishment more reasonable and humane while retaining the idea of retribution.

7. Roger Crisp kindly pointed out that it is worth considering an institutional justification according to which punishment wouldn’t have to be tailored to a particular case. In this view, it is sufficient that death is generally bad for both victims and perpetrators. I do not deny the practical persuasiveness of this view. However, from a more philosophical point of view, we should propose a question ‘how can we know that death is generally bad for victims of homicide?’ Following HTD, which is certainly one possible philosophical view, death is not bad at all, regardless of whether we talk about general issues or particular cases, as an agent to whom something is bad or not disappears by dying by definition. Of course, as long as we exclusively focus upon harm which the bereaved family or the society in general suffer, the institutional justification could make good sense, although in that case the issue of direct victims killed would remain untouched.

8. Additionally, my analogy with natural disasters, particularly the case of the 2011 quake, could be re-confirmed to be appropriate in the sense of presenting a similar kind of uncertainty to the case of the death penalty. The danger of constant exposure to low doses of radiation for long periods involves some uncertainty, as far as we now know. Fortunately, however, the dose of radiation to which the people of Fukushima were exposed as a result of the 2011 quake, internally and externally, was low enough for us to be certain, based upon past epidemiological research, that no health problems will arise in the future. Regarding radiation exposure, everything depends upon the level of dose. The smaller the dose, the less dangerous it is.

9. On negative causation and the possibility of common cause, see Ichinose (2013). In particular, my argument on negative causation concerning the death penalty rests on my argument of Ichinose (2013).

10. According to Bazemore and Walgrave, ‘restorative justice is every action that is primarily oriented towards doing justice by repairing the harm that has been caused by a crime (Bazemore and Walgrave 1999 (2), p.48). Restorative justice, that is to say, is a justice system that mainly aims at restoring or repairing the harm of offences rather than punishing offenders as the retributive justice system does. Initially, restorative justice has been carried out by holding ‘a face-to-face meeting between the parties with a stake in the particular offense’ (ibid.) like victim, offenders, or victimised communities. However, this type of justice system works only in a complementary way to the traditional system of retributive justice. Then, the maximalist approach to restorative justice was proposed, which seeks to develop ‘restorative justice as a fully-fledged alternative’(Bazemore and Walgrave 1999 (1). Introduction. P.8) to retributive justice. This approach ‘will need to include the use of coercion and a formalization of both procedures and the relationship between communities and society’ (ibid., p.9.)

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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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The Death Penalty - your questions answered

Does the death penalty stop crime? Does it give victims justice? Is there a humane way to execute? Get your facts straight about the death penalty with Amnesty’s top 10 FAQs on capital punishment.

1. Why does Amnesty International oppose the death penalty?

The death penalty violates the most fundamental human right – the right to life. It is the ultimate cruel, inhuman and degrading punishment .

The death penalty is discriminatory. It is often used against the most vulnerable in society, including the poor, ethnic and religious minorities, and people with mental disabilities. Some governments use it to silence their opponents. Where justice systems are flawed and unfair trials rife, the risk of executing an innocent person is ever present.

When the death penalty is carried out, it is final. Mistakes that are made cannot be unmade. An innocent person may be released from prison for a crime they did not commit, but an execution can never be reversed .

2. Don’t victims of violent crime and their families have a right to justice?

They do. Those who have lost loved ones in terrible crimes have a right to see the person responsible held to account in a fair trial without recourse to the death penalty. In opposing the death penalty, we are not trying to minimize or condone crime. But as many families who have lost loved ones have said, the death penalty cannot genuinely relieve their suffering. It just extends that suffering to the family of the condemned person.

“Revenge is not the answer. The answer lies in reducing violence, not causing more death’ -Marie Deans, whose mother-in-law was murdered in 1972.

3. If you kill someone else, don’t you deserve to die, too – “an eye for an eye”?

No. Executing someone because they’ve taken someone’s life is revenge, not justice.

An execution – or the threat of one –inflicts terrible physical and psychological cruelty. Any society which executes offenders is committing the same violence it condemns .

4. Doesn’t the death penalty prevent crime?

Not according to the research. There is no credible evidence that the death penalty deters crime more effectively than a prison term. In fact, crime figures from countries which have banned the death penalty have not risen. In some cases they have actually gone down . In Canada, the murder rate in 2008 was less than half that in 1976 when the death penalty was abolished there.

5. What about capital punishment for terrorists?

Governments often resort to the death penalty in the aftermath of violent attacks, to demonstrate they are doing something to “protect” national security. But the threat of execution is unlikely to stop men and women prepared to die for their beliefs – for example, suicide bombers. Executions are just as likely to create martyrs whose memory becomes a rallying point for their organizations.

People accused of “terrorism” are especially likely to be sentenced to death after unfair trials . Many are condemned on the basis of “confessions” extracted through torture . In some cases, special or military courts set up through counter-terrorism laws have sentenced civilians to death, undermining international standards.

‘The death penalty is a cheap way for politically inclined people to pretend to their fearful constituencies that something is being done to combat crime.” Jan van Rooyen, South African law professor

6. Isn’t it better to execute someone than to lock them up forever?

Every day, men, women, even children, await execution on death row. Whatever their crime, whether they are guilty or innocent, their lives are claimed by a system of justice that values retribution over rehabilitation. As long as a prisoner remains alive, he or she can hope for rehabilitation, or to be exonerated if they are later found to be innocent .

7. Is there a humane and painless way to execute a person?

Any form of execution is inhumane. The lethal injection is often touted as somehow more humane because, on the surface at least, it appears less grotesque and barbaric than other forms of execution such as beheading, electrocution, gassing and hanging.

But the search for a “humane” way to kill people should be seen for what it really is – an attempt to make executions more palatable to the public in whose name they are being carried out, and to make the governments that execute appear less like killers themselves.

8. What business is it of Amnesty’s if different societies want to use the death penalty?

Human rights – including the most basic right to life – are universal and endorsed by the vast majority of countries in the world. Our call to end the death penalty is consistent with the mercy, compassion and forgiveness that all major world religions emphasize. To date, 140 countries have abolished the death penalty in law or in practice, demonstrating that the desire to end capital punishment is shared by cultures and societies in almost every region in the world.

9. What if public opinion is in favour of the death penalty?

Strong public support for the death penalty often goes hand in hand with a lack of reliable information about it – most often the mistaken belief that it will reduce crime. Many governments are quick to promote this erroneous belief even though there is no evidence to support it. Crucial factors that underlie how the death penalty is applied are often not understood. These include the risk of executing an innocent person, the unfairness of trials, and the discriminatory nature of the death penalty – all of which contribute to a fully informed view of capital punishment.

We believe governments need to be open about this information, while promoting respect for human rights through public education programmes. Only then can there be meaningful debate on the death penalty.

Still the decision to execute someone cannot be decided by public opinion. Governments must lead the way.

10. Is the battle to abolish the death penalty being won?

Yes. Global executions fell by almost one-third last year to the lowest figure in at least a decade.

Following a change to its anti-narcotics laws, executions in Iran – a country where the use of the death penalty is rife – fell by a staggering 50%. Iraq, Pakistan and Somalia also showed a significant reduction in the number they carried out. As a result, execution figures fell globally from at least 993 in 2017, to at least 690 in 2018.

The statistics, from Amnesty’s 2018 global review of the death penalty , (PDF, 6MB) assess known executions worldwide except in China, where figures thought to be in their thousands remain classified as a state secret.

Learn more about Amnesty International Australia’s campaigns to end the death penalty and how you can help save lives today.

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The Case Against the Death Penalty

The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.

The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:

The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place . People of color are far more likely to be executed than white people, especially if thevictim is white

The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates.

Innocent people are too often sentenced to death. Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed.

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES

In 1972, the Supreme Court declared that under then-existing laws "the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." ( Furman v. Georgia , 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so "harsh, freakish, and arbitrary" as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that "the punishment of death does not invariably violate the Constitution." The Court ruled that the new death penalty statutes contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." ( Gregg v. Georgia , 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder.

Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976 .

ACLU OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court's 1976 ruling in Gregg v. Georgia , et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Capital punishment is cruel and unusual . It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death.

Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of equal protection . It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.

The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective . Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.

Capital punishment wastes limited resources . It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society's control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.

Opposing the death penalty does not indicate a lack of sympathy for murder victims . On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to "guided discretion." Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution.

A society that respects life does not deliberately kill human beings . An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment's severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions .

The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year , this is still only about one percent of all homicides known to the police . Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137 , reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.

Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 ( Woodson v. North Carolina , 428 U.S. 280).

A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.

Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others.

Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs.

Capital punishment doesn't solve our society's crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

Capital punishment has been a useless weapon in the so-called "war on drugs." The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers.

If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because "a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. "

In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions . Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states : California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it.

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions . Evidently, the threat of the death penalty "does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states." Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell , who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row.

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court's ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989)

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction . But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial Bias in Death Sentencing

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman . Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that "the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist "legacy of slavery." Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black .

Our nation's death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one's conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987)

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black . More striking is the racial comparison of victims . Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim.

Between 1976 and 2005 , 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men.

So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.”

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims." (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was "a constitutionally significant risk of racial bias...." (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was "best presented to the legislative bodies," subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded : "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process..."

Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires.

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person . Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color . Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims. [1]

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse . Since 1900, only 51 women have been executed in the United States (15 of them black).

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet "approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.") Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman , "One searches our chronicles in vain for the execution of any member of the affluent strata in this society"(408 US 238).

Failure of Safeguards

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination."(Gross and Mauro, Death and Discrimination 1989)

Justice John Marshall Harlan, writing for the Court in Furman , noted "… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court "do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce."

Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge's instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. "Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law."

Even if the jury's sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilty plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, and the governor's final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997 . The House judged the current system to be "a haphazard maze of unfair practices."

In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual "constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime." (International Commission of Jurists, Administration of the Death Penalty in the United States 1996)

In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me." Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed.

Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed.

In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man. [2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench. [3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it. [4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person. [5]

Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared:

In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty.
In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed.
In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer.
In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler's explanation of the child's cause of death and the physician who performed the autopsy admitted his work had not been thorough.
In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs' death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state's witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution.
In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury's recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian's behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian's conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges.
In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants' innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges.
In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, "One of you two is going to hang for this." Looking at Brandley, the officer said, "Since you're the nigger, you're elected." In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley's aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991)

This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant's previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.

CAPITAL PUNISHMENT IS BARBARIC

Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.

Two states, Idaho and Utah, still authorize the firing squad . The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows:

"At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

"The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied.

"At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans' body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes." Afterwards, officials were embarrassed by what one observer called the "barbaric ritual." The prison spokesman remarked, "This was supposed to be a very clean manner of administering death."

The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a "cruel and unusual punishment." Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens:

"When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

"At this point Don's body started convulsing violently.... His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

"After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

"Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

“Don Harding took ten minutes and thirty one seconds to die." ( Gomez v. U.S. District Court , 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection , first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is "substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." ( Chaney v. Heckler , 718 F.2d 1174, 1983).

Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:

"The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death."

Botched Lethal Injections

Nor does execution by lethal injection always proceed smoothly as planned. In 1985 "the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser." In 1988, during the execution of Raymond Landry, "a tube attached to a needle inside the inmate's right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses."

Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break.

Lethal Injection Protocol Issues

Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart. [6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology. [7] Some states have replaced the three-drug cocktail with a single substance, [8] while others have replaced thiopental in the three-drug sequence with another anesthetic. [9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process. [10]

Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment, [11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution. [12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure. [13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection. [14]

Although similar suits are pending in other states, [15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used. [16]

Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions [17] and European Union restrictions on the exportation of drugs that may be used to kill. [18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school. [19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.” [20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed. [21]

Witnessing the Execution

Most people who have observed an execution are horrified and disgusted. "I was ashamed," writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. "I was an intruder, the only member of the public who had trespassed on [the condemned man's] private moment of anguish. In my face he could see the horror of his own death."

Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber:

"If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The 'last mile' seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. 'No more. I don't want to do this anymore.'" 1996)

Recently, Allen Ault, former executioner for the State of Georgia, wrote , “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.”

For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. "I received more than seven hundred applications for the position, many of them offering cut-rate prices." (Life and Death in Sing Sing 1928)

Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960)

Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: "The death penalty cannot be useful, because of the example of barbarity it gives men." Beccaria's words still ring true – even if the death penalty were a "useful" deterrent, it would still be an "example of barbarity." No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."(Boston Globe, August 16, 1976)

Death Row Syndrome

Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years. [22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement [23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon. [24]

In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior. [25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community. [26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them.

Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association. [27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” [28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. [29]

Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil. [30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. [31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.” [32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court. [33]

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions.

Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, "For there to be 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 his mercy for months. Such a monster is not encountered in private life." (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – "making the punishment fit the crime." If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.

If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Murder Victims Families Oppose the Death Penalty

Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, "As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder." (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981)

Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written:

"I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, 'Please, God. Please don't take his life too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief."(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989)

Across the nation, many who have survived the murder of a loved one have joined Murder Victims' Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently.

Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James' killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."

Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out "You can't fight murder with murder . . .(l)ife in prison would have been fine. I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. "The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.") A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., "Capital Losses" 1982)

The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost.

In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence." In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. 59 Florida, with one of the nation's most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence." (David von Drehle, "Capital Punishment in Paralysis," Miami Herald, July 10, 1988)

A 1993 study of the costs of North Carolina's capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution.

In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, "My frustration is more about the fact that the death penalty does not serve any useful purpose and it's very expensive." Don Heller, a Republican and former prosecutor, wrote "I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility." Heller emphasized that he is not "soft on crime," but that "life without parole protects public safety better than a death sentence." Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. "Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety." [34]

From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. "Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent." The only way to make the death penalty more "cost effective" than imprisonment is to weaken due process and curtail appellate review, which are the defendant's (and society's) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice : In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned .

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty "resource centers" charged with providing counsel on appeal in the federal courts. (Carol Castenada, "Death Penalty Centers Losing Support Funds," USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory.

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty . A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41% . Only a minority of the American public would favor the death penalty if offered such alternatives.

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that "the facts clearly show that the death penalty is regarded in Europe as something of an anachronism…." 1962)

Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to "progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment." By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.

Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an "inhumane" punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it .

International Law

A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. [35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties. [36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. [37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights.

Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime. [38]

The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives. [39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor.

In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows .

Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment. [42]

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty.

The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012.

[1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008 , 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf .

[2] Liebman et. al, Los Tocayos Carlos , 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012).

[3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man , Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/ .

[4] See id.

[5] See id. ; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed , PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html .

[6] A Three-Drug Cocktail , WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.html ; see also Victoria Gill, The Search for a Humane Way to Kill , BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961 .

[7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122 ; John Schwartz, Death Penalty Drug Raises Legal Questions , N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all .

[8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol , Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/ ; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty , Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.html ; David Beasley, Georgia Delays Execution Amid Drug Protocol Change , Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717 ; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution , Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.html ; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate , WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/ ; Idaho Switches Execution Protocol to Single-Drug Lethal Injection , Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/ .

[9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns , NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concerns ; Steve Eder, Virginia Adds New Drug for Lethal Injections , WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/ .

[10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol , Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html .

[11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution , N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all .

[12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure , USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met--executionsART_ST_U.htm ; Court Gives Arizona Warning About Execution Protocol , Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.html . Notably, however, the panel did not halt Arizona’s scheduled executions. Id.

[13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution , Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723 .

[14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug , Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/ .

[15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol , KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/ .

[16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids , Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocol ; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails , Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/ .

[17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low , Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-low ; John Schwartz, Seeking Execution Drug, States Cut Legal Corners , N.Y. Times, Apr. 13, 2011,

http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all ; Kiefer, supra note 7.

[18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016 ; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections , BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578 .

[19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed , Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420 ; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing , Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htm l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug , USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc ; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler , California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888 ; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug , California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.html .

[20] Pelofsky, supra note 14.

[21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs , Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.html .

[22] See Elizabeth Rapaport , A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S. , Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf .

[23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0 .

[24] See Harrison and Tamony, supra note 25.

[25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row .

[26] See id.

[27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution , 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdf .

[28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari).

[29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases , 14 J.L. & Pol’y 735, 738-39 (2006).

[30] Soering v. UK , App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf .

[31] See David Wallace-Wells, What is Death Row Syndrome? , Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.html ; Smith supra note 30.

[32] Smith supra note 30. (quoting Soering , 11 Eur. H. R. Rep. at 475-76).

[33] Id. at 239.

[34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year , L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620 .

[35] Figures on the Death Penalty , Amnesty International, http://www.amnesty.org/en/death-penalty/numbers .

[36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [ hereinafter Second Optional Protocol].

[37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions , World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html ; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty , World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.html ; Second Optional Protocol, supra note 21.

[38] Desert, Second Optional Protocol: Frequently Asked Questions , supra note 22.

[39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf .

[40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf .

[41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventions .

[42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf .

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Article Contents

Introduction, i. theorizing the evolution of capital punishment and human rights, ii. the seeds of the renaissance and enlightenment, iii. from the american enlightenment to furman, iv. from the french revolution to abolition, v. the modern transatlantic divergence: “a human rights violation” versus “a broken system”.

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Death Penalty Abolitionism from the Enlightenment to Modernity

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Mugambi Jouet, Death Penalty Abolitionism from the Enlightenment to Modernity, The American Journal of Comparative Law , Volume 71, Issue 1, Spring 2023, Pages 46–97, https://doi.org/10.1093/ajcl/avad011

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The modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively. The movement does not emphasize that killing prisoners is inhumane per se. Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs. By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity. This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions. This Article demonstrates that, in reality, the significant transatlantic divergence on abolitionism is a relatively recent development. By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms. Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions. It was not until the 1970s and 1980s that a major divergence materialized. As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, abolitionists largely abandoned humanistic claims in favor of practical ones. Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe. These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law. While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment. But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.

As America stands increasingly isolated in retaining the death penalty, 1 two Supreme Court Justices made a clarion call for abolition. In a case upholding lethal injection procedures, Stephen Breyer and Ruth Bader Ginsburg went beyond the pleadings in a dissent encouraging litigators to bring a test case for outright abolition. Their landmark opinion marshaled a host of reasons, including recurrent due process violations, racial discrimination, and exonerations of innocents. 2 The dissent, republished in a book entitled Against the Death Penalty , was essentially an abolitionist manifesto. 3 What it omitted in its twenty-two pages and five appendices is therefore striking. The dissent nowhere suggests that killing prisoners is cruel or inhumane per se. Rather, it focuses exclusively on administrative, procedural, and utilitarian problems. The landmark Breyer–Ginsburg opinion embodies modern American abolitionism. Its approach reflects the now-popular notion that the death penalty system is irremediably “broken.” 4 It is fundamentally a practical argument—executing people “does not work.”

By contrast, European authorities recognize the death penalty as an inherent violation of human rights and human dignity in all cases and under all circumstances. 5 This humanistic approach denies the relevance of practical problems, because killing prisoners is unjustifiable. The prisoner’s right to life has become inalienable. 6

The divergence is not absolute, as certain Americans argue that executing prisoners is intrinsically immoral, 7 despite the U.S. debate’s focus on practical concerns. 8 It may well be that most American abolitionists oppose capital punishment on moral grounds, but choose to stress consequentialist objections due to actual or perceived constraints, such as the greater receptiveness of U.S. judges, legislators, and public opinion to problems like innocence and discrimination. 9 Nevertheless, a significant divergence in framing abolitionism exists in America and Europe nowadays.

The stakes in framing the issue are critical. Although death sentences and executions have dropped in twenty-first century America amid declining public support, 10 the United States remains among the leading executioners worldwide alongside dictatorial regimes. 11 The profound divergence in framing abolitionism in Europe and America is often assumed to reflect distinct sensibilities: Europeans appear disposed toward humanistic concerns about killing, whereas Americans focus on practical problems because they have fewer moral reservations about executing murderers. Put otherwise, a consequentialist approach is assumed to be a fundamental trait of American culture, whereas European culture embraces deontological arguments about human rights and dignity. This reputation is partly a stereotype and is substantially false in the death penalty context, as European and American abolitionism long had more in common than is generally understood.

This Article documents how the transatlantic divergence is relatively recent. 12 For much of history, abolitionists in Europe and America converged in employing a polyvalent discourse encompassing humanistic and practical objections to capital punishment. Yet humanistic approaches toward criminal justice fell out of favor in America around the 1970s and 1980s. America then not only chose to retain the death penalty when other Western democracies cemented abolition. 13 America’s prison population also exploded, leading to the highest incarceration rate worldwide. 14 This harsher climate led U.S. abolitionism to focus narrowly on administrative, procedural, and utilitarian objections to executions. In the same period, European authorities increasingly recognized the death penalty as a human rights violation. They consequently refused to facilitate executions in America, such as by barring the extradition of detainees who might face capital punishment. 15 These circumstances fostered the misconception that humanistic objections to the death penalty are largely foreign to America and fundamentally “European” in nature.

In other words, abolitionism has historically had a humanistic component that is now commonly eclipsed in America. This may reflect diverse dimensions of American exceptionalism, the notion that America has objectively become an “exception” compared to other countries, especially Western democracies, due to singular historical and societal circumstances. 16 Extensive scholarship has focused on how, starting in the 1970s, the rise of mass incarceration and resurgence of the death penalty in the United States marked the social normalization of extraordinary harshness. 17 This profound divergence tends to overshadow the fact that America was not always an outlier.

The Article examines sources overlooked by criminal justice scholars to demonstrate how generations of American abolitionists denounced the death penalty’s inhumanity, including influential figures like Benjamin Rush, Ralph Waldo Emerson, Henry David Thoreau, Frederick Douglass, Sojourner Truth, Susan B. Anthony, Lydia Maria Child, Walt Whitman, Clarence Darrow, and Martin Luther King. 18 The Article further compares the historical evolution of abolitionism in America and France to illuminate processes of convergence and divergence. Buoyed by “sister revolutions” born of Enlightenment ideas, 19 America and France offer instructive comparisons as nations where reformers earnestly challenged the death penalty by the late eighteenth century. Given the rabid use of the guillotine during the French Revolution, it may seem hard to believe that it spurred a fervent abolitionist movement, yet it did. 20 Drawing on neglected French materials, some translated here for the first time, the Article shows that French abolitionists long held similar views to their American counterparts, as illustrated by Voltaire, Condorcet, Lafayette, Victor Hugo, Albert Camus, and Robert Badinter.

The humanistic rhetoric of past abolitionists, whether in Europe or America, foreshadowed modern conceptions of human rights and dignity. These findings call into question leading theories concluding that human rights are an invention of modernity 21 or that executions were not considered a human rights issue before a shift in Western Europe in the late twentieth century. 22 However, these theories shed light on how human rights have intensified in modernity. In particular, Franklin Zimring has insightfully documented the divergence in framing abolition as a human rights issue in Europe, compared to a practical one in America. 23 This Article’s findings suggest that the divergence that Zimring pinpointed is the present point in a longer evolution under which abolitionism largely converged for generations.

We will see that humanistic reservations about executions emerged in the Renaissance, as the writings of Thomas More, Montaigne, and Erasmus demonstrate. This normative evolution shaped Enlightenment philosophy, including Cesare Beccaria’s crucial call to abolish the death penalty in 1764, 24 which inspired reformers on both sides of the Atlantic. 25 Even though this historical evolution has not been linear, 26 it partly confirms Émile Durkheim’s sociological theory on the long-term expansion of prisoners’ rights. 27 Durkheim hypothesized that punishments gradually milden as societies evolve from absolute monarchy toward democracy. 28 Growing empathy toward prisoners is tied to an expanding norm of “human dignity,” 29 namely the intrinsic worth of human life at an abstract level. 30 As we will see, Victor Hugo, the French writer and legislator, presented a similar theory half a century earlier. 31 After centuries of incremental evolution, including backlashes and regressions, these humanistic norms have become the foundation of abolitionism in Europe. America may have taken the same path but for diverse contingencies, from social shifts toward the end of the twentieth century to the Supreme Court’s refusal to categorically abolish capital punishment under evolving standards of decency. 32

This thesis does not exclude the relevance of other factors, such as institutional differences 33 or the well-documented history of racial discrimination in the U.S. death penalty system. 34 Rather, the Article presents an original perspective on an evolution comprising far more key elements than is widely assumed.

This Part situates the Article’s thesis in contrast to leading theories on the history of the death penalty and human rights. We will notably explore how a glaring modern divergence has obscured a past convergence.

Our starting point is a pivotal book by Franklin Zimring, The Contradictions of American Capital Punishment (2003), which examined abolitionism on the opposite sides of the Atlantic. Zimring’s magnum opus stands out for offering insight into both American and European law. While European abolitionists frame the death penalty as a human rights violation, their American counterparts focus on its inutility and unfair implementation. 35 Zimring argues that this divergence reflects a recent paradigm shift in Western Europe, which did not conceive capital punishment as a human rights issue before the end of the twentieth century. 36 Until then, it was merely a matter of penal policy, rather than a “moral” or “political” question regarding “the proper limits of government power.” 37 According to Zimring, it was only after European countries had achieved abolition at the domestic level that they reframed the death penalty as a human rights issue around the 1970s and 1980s under the aegis of the Council of Europe—the most influential international body on the continent alongside the European Union. 38

Zimring emphasizes that abolitionism was generally not a reaction to the atrocities of World War II, as Allied victors executed war criminals. 39 Nor was it part of the international human rights movement born in the war’s immediate aftermath. Zimring instead identifies a shift with Protocol No. 6 to the European Convention on Human Rights. This 1983 treaty provided for the death penalty’s abolition except in wartime. 40 The reframing of abolition as an international human rights issue entailed a universalist mission under which the Council and individual European states came to support abolition throughout the continent and worldwide. 41 They consequently refused to cooperate with foreign countries seeking to apply the death penalty, including the United States, such as by denying extraditions or requests for evidence. 42 International human rights groups likewise played a role in this transformation, especially Amnesty International. 43 By contrast, whether the death penalty violates human rights “is almost never debated in the United States.” 44

In sum, Zimring theorizes that a normative shift occurred relatively recently in the 1970s and 1980s in Western Europe. 45 Despite recognizing that the Enlightenment philosopher Cesare Beccaria presented in 1764 “the first detailed and influential” call for abolition, 46 Zimring argues that the claims of Beccaria and other premodern abolitionists were distinct in nature from modern human rights claims. Stressing that “the European focus on the political nature of capital punishment has a very short history,” 47 Zimring underlines the implications of his theory: “[O]ne can be astonished that the political and human rights dimensions of the death penalty were repressed for so very long even by those who were seeking to stop executions.” 48

Another leading theory is relevant to my thesis. Samuel Moyn has argued that the human rights movement suddenly emerged in the 1970s and had practically no antecedents. 49 He denies that it was a reaction to the Holocaust and other atrocities perpetrated during World War II, as “no international rights movement emerged at the time.” 50 This is hard to reconcile with the adoption in 1948 of the Universal Declaration of Human Rights and the Convention on Genocide. Moyn equally dismisses the idea that human rights have earlier roots in Enlightenment philosophy. 51 He disputes that the American Revolution and French Revolution sowed the seeds of modern human rights, positing that their declarations of rights were narrowly circumscribed to the nation-state. 52 To Moyn, the modern human rights movement instead aims to transcend the nation-state with binding international law. Moyn thus refers to the “startling breakthrough” 53 or “true breakthrough” 54 of human rights in the 1970s, with the “breakthrough year” being 1977 when Amnesty won the Nobel Peace Prize. 55 His theory of recently and suddenly born human rights has proved controversial. 56

Even though Moyn does not discuss the death penalty or criminal justice, his theory is relevant to the history of abolitionism. If human rights as a whole did not emerge before the 1970s, capital punishment could not have been a human rights issue prior to that time. In this regard, a synergy exists between Moyn’s theory and Zimring’s theory about a recent paradigm shift on capital punishment in Europe.

This Article presents the distinct hypothesis that the death penalty’s framing as a human rights issue did not suddenly emerge in Europe in the twentieth century’s final decades. Rather, for much of history, abolitionists in both Europe and America recurrently depicted executions as the equivalent of human rights abuses. But that is not all. Abolitionists simultaneously stressed administrative, procedural, and utilitarian objections. That is because abolitionists generally employed a polyvalent discourse. Their objections sometimes encompassed moral claims akin to modern human rights arguments, sometimes practical concerns with how the penalty was applied, and oftentimes both.

How could this be? After all, a tension exists between these two framings. If the death penalty is a human rights violation, problems with its implementation become irrelevant. Because human rights are inalienable, capital punishment must then be abolished. As Zimring observes, “the debate begins and ends” with this premise about human rights. 57 As this premise lacks weight in America, including in abolitionist rhetoric, the U.S. debate instead centers on administrative, procedural, and utilitarian matters. 58

Yet the tension between these two framings is greater nowadays than in the past. That may be because human rights norms have strengthened in Europe since approximately the 1970s, the breakthrough period that both Moyn and Zimring thoughtfully describe. This enabled European abolitionists to place less weight on practical objections. But this does not signify that human rights claims were essentially absent in the past. They instead carried less weight. In societies where humanistic norms are less established, abolitionists are likely to pair human rights claims with practical objections to capital punishment as part of a polyvalent rhetoric. Once a society is prepared to fully approach the death penalty as a human rights issue, however, abolitionists may solely focus on human rights claims. Until that point, social circumstances and strategic considerations may disincentivize abolitionists from over-relying on humanistic rhetoric.

This Article suggests that the transatlantic divergence that Zimring documented is the present point of a long-term historical process. Past generations of abolitionists in America and Europe tended to converge toward a rhetoric encompassing both humanistic and practical objections to capital punishment. 59 Around the 1970s, shifts on each side of the Atlantic led to the divergence at the heart of Zimring’s theory. 60 Humanistic claims declined in America, where abolitionism increasingly focused on the unfair application and ineffectiveness of capital punishment. 61 This was partly a path dependence resulting from the Supreme Court’s landmark decisions in Furman v. Georgia (1972) and Gregg v. Georgia (1976), where most Justices refused to frame the death penalty’s constitutionality as a human rights or normative question, instead focusing on administrative, procedural, and utilitarian issues. While Furman effectively abolished the death penalty in a divisive 5–4 vote invalidating capital sentencing laws nationwide, Gregg swiftly reinstituted it four years later in a 7–2 decision licensing new statutes. 62 Coupled with retribution’s resurgence as a respectable value in  America, 63 these circumstances helped shape a form of abolitionism that avoids humanistic principles and narrowly centers on practical problems: discrimination, innocence, cost, lack of deterrence, etc. Conversely, humanistic claims enjoyed a breakthrough in Europe in the 1970s and 1980s, where they supplanted practical objections to capital punishment. 64 Figure 1 conceptualizes this process of convergence and divergence.

Historical Convergence and Divergence of Abolitionist Discourse.

Human rights abolitionist claims are not the fruit of a relatively recent paradigm shift in Europe. One can find their roots in the Enlightenment, if not earlier in the Renaissance. Outside Europe, they also came to play a significant role in the United States once it became the first modern democracy to emerge from the Enlightenment. That is because erstwhile claims about the death penalty’s immorality are analogous, at times identical, to the modern human rights position, which I define as the idea that killing prisoners is fundamentally wrong and inhumane. 65 Since the eighteenth century, American and European abolitionists have frequently argued that executions are cruel, callous, barbarous, degrading or otherwise inhumane. 66 Their convictions are analogous to the modern position of the Council of Europe and European Union: “The death penalty is an affront to human dignity. It constitutes cruel, inhuman and degrading treatment and is contrary to the right to life. The death penalty has no established deterrent effect and it makes judicial errors irreversible.” 67

The last quoted sentence is likewise relevant in showing that it is possible to stake a staunch human rights position—and add a line about how the death penalty is ineffective and error-prone. Even in the age of human rights, European authorities employ a fairly polyvalent discourse. Still, European abolitionism has strongly gravitated toward a humanistic rationale. 68 However, the growing weight of human rights does not mean that they had no influence or did not exist in the past.

In particular, Moyn’s theory that human rights are a modern invention is partly rooted in the conflation of “human rights” with “international human rights.” It leads him to conclude that human rights did not exist before breakthroughs in international law in the 1970s. 69 This disregards how human rights can emerge in either the national or international sphere. Moyn further discounts the fact that a symbiotic relationship exists between each sphere, as capital punishment’s abolition in Europe demonstrates. Abolition started at the national level in a few jurisdictions in the eighteenth and nineteenth centuries, namely Tuscany (1786), 70 San Marino (1848), Portugal (1867), and the Netherlands (1870). 71 Abolition gradually expanded throughout the twentieth century, as illustrated by West Germany (1949), the United Kingdom (1965), and France (1981). 72 This ultimately favored the adoption of the Council of Europe’s abolitionist treaties in 1983 and 2002. 73 Both of these national and international developments favored abolition in remaining countries on the continent, especially former Soviet bloc states. 74 Abolition in international law therefore mostly stems from earlier shifts in national law. 75

Zimring has invited scholars to further explore the intriguing historical evolution in framing abolitionism, especially whether human rights “were important motivations beneath the surface of death penalty debates long before they emerged in the aftermath of abolition” in Europe. 76 That is indeed a dimension of my thesis, which further suggests that abolitionism largely converged in America and Europe until approximately the 1970s, when the divergence that Zimring describes materialized. We will see how it is the present point of a long-term historical process.

This Part will describe the gradual emergence of abolitionism in the Renaissance and Enlightenment. In these epochs one can find roots of the modern human rights discourse that capital punishment is immoral and of the practical discourse that it is ineffective or unfairly implemented. Today, the former position has become the ground for abolition in Europe, whereas the latter characterizes American abolitionism. This divergence is largely a modern development. Past reformers recurrently denounced both moral and practical problems with the death penalty.

As early as the Renaissance, philosophers began drawing closer to the idea that human worth is inalienable and cannot be forfeited by committing a crime. 77 While Beccaria is arguably the first prominent abolitionist, this Part documents how earlier thinkers who did not call for outright abolition (e.g., Thomas More, Erasmus, Montaigne, Montesquieu, etc.) expressed concerns about the cruelty of executions and sought to limit them to a narrower range of crimes. This ultimately paved the way for full abolition on human rights grounds in Europe—the fruit of a long-term historical process encompassing “a reduced range of capital offenses and eligible offenders,” a “decline in the frequency of executions,” and “the appearance of sharp divisions in public attitudes towards the penalty’s propriety.” 78 The gradual elimination of the death penalty is itself part of a wider evolution that began with the denunciation, limitation, and abolition of torture, mutilation, and other corporal punishments. 79 Durkheim suggested that as societies evolved away from absolute monarchy toward democracy, ruthless punishments would become acts of “lese humanity,” a reformulation of lese majesty. 80 His theory on the gradual mildening of punishments helps us conceptualize this long-term evolution. 81

A. Beccaria’s Momentous Abolitionist Discourse

The Enlightenment engendered a reformative spirit in criminal justice. Cesare Beccaria, a Milanese philosopher, was the main catalyst for this paradigm shift. His masterpiece, On Crimes and Punishments (1764), was the first influential call to abolish the death penalty. Its argumentation was polyvalent, conciliating humanistic and utilitarian rationales. Depicting the death penalty as state murder, “a public assassination,” 82 he indignantly asked: “By what alleged right can men slaughter their fellows?” 83 Beccaria combined these normative objections with practical concerns: “Capital punishment is not useful because of the example of cruelty it gives to men.” 84 He equally stressed its lack of deterrent value and discrimination against the indigent. 85 “Who made these laws? Rich and powerful men who have never deigned visit the squalid huts of the poor . . . let us attack injustice at its source,” Beccaria proclaimed. 86 The following statement encapsulates his multifaceted discourse: “If I can demonstrate that capital punishment is neither useful nor necessary . . . I shall have vindicated the cause of humanity.” 87

Beccaria planted seeds of the modern abolitionist discourse on each side of the Atlantic. His practical objections about the inutility and inequity of capital punishment have become a staple of American abolitionism. His denunciation of its inhumanity is at the root of the human rights rationale in modern Europe.

Beccaria was not a full abolitionist, as he supported executions for treason posing a risk of security to the state. 88 His views may appear callous by modern standards, insofar as his alternative to death was lifelong forced labor. 89 Nevertheless, he favored milder and more humane sentences overall. 90

Yet a normative evolution was already underway before On Crimes and Punishments . Although Beccaria (1738–1794) is justly recognized as the trailblazer of modern criminal justice, his ideas did not arise ex nihilo , as his reliance on Montesquieu (1689–1755) demonstrates. Beccaria was keen on “follow[ing] the shining footsteps of this great man.” 91 In fact, humanistic sensibilities toward punishment were already palpable in the views of diverse Renaissance philosophers two centuries before Montesquieu.

B. Beccaria’s Predecessors

We begin our overview of this historical evolution with Thomas More (1478–1535), the English statesman and thinker, given his substantive arguments and rhetorical approach. In his Utopia (1516), More depicted a fictional world where capital punishment was largely phased out for heinous crimes, and replaced with forced labor offering hope for rehabilitation. 92

A key passage of More’s tale portrays an obtuse royal counselor astonished that thieves proliferate in Britain despite being routinely executed. A traveler who returned from an imaginary utopia rebukes him: “[N]o need to wonder: this way of punishing thieves goes beyond the call of justice, and is not in any case for the public good. The penalty is too harsh in itself [and] isn’t an effective deterrent.” 93 Although Utopia is at times ambiguous, 94 it suggests that a fair society should address root causes of crime, such as poverty, rather than inflict harsh punishments. 95 Crime is a symptom of wider ills. This focus on social and institutional mechanisms fostering crime, as opposed to essentialism about human nature or evildoers, was innovative in More’s epoch. 96 It ultimately evolved into a premise of modern human rights norms: people who commit heinous crimes are not inherently evil and should not face dehumanizing punishments. Naturally, one should be wary of anachronisms. A modern reader would be quick to find More’s outlook antiquated and rife with contradictions, such as his participation in the burning of heretics. 97 More would himself fall victim to the death penalty: Henry VIII had him beheaded for insubordination. Nevertheless, Utopia remains a significant text in the history of Western civilization.

Utopia demonstrates that polyvalent rhetoric urging the abolition or limitation of capital punishment has distant roots. As a Renaissance humanist, Thomas More was trained in classical rhetoric encompassing the honestas and utilitas principles, namely honor and utility. Rhetoricians commonly argued that a particular course of action would be either dishonorable or ineffective. Their strongest position would lie in establishing both. 98 To More, “honor and expediency point in the same direction . . . . The English policy for dealing with theft is both immoral and self-defeating.” 99 This helps us understand why skillful rhetoricians in the Renaissance and Enlightenment would not merely contend that the death penalty was inhumane or ineffective in a particular case or in general. They would argue both polyvalently.

The perspective of another leading voice of the Renaissance demonstrates the emergence of humanistic sensibilities foreshadowing modern human rights claims against capital punishment. Montaigne (1533–1592) expressed his revulsion of executions as a magistrate: “[W]hen occasions have summoned me to sentencing criminals, I have tended to fall short of justice . . . . horror of the first murder makes me fear a second, and hatred of the first cruelty makes me hate any imitation of it.” 100 Montaigne drew on Antiquity to offer ethos to his humane vision of justice: “They say that Aristotle was reproached for having been too merciful to a wicked man. ‘In truth,’ he said, ‘I was merciful to the man, not to the wickedness.’” 101 Montaigne pinpointed a conception of justice that has become prevalent in modernity: the distinction between the crime and the criminal or, better yet, the crime and the individual, who should not be essentialized as a “criminal.” The notion that people should not be reduced to their worse act is omnipresent in modern human rights, bolstering the norm that punishment should never degrade the offender whose dignity is inalienable. 102

Elsewhere in his Essays , Montaigne adopts a more utilitarian approach suggesting that incapacitation and deterrence justify the death penalty: “[Offenders] are condemned so that they may not do the same wrong again, or so that others may avoid the example of their wrongdoing.” 103 His moral sensibilities nonetheless leaned toward mercy. He thus found corporal punishments inhumane:  “[E]ven in justice, all that goes beyond plain death seems to me pure cruelty . . . .” 104 Montaigne’s words troubled Roman censors—defenders of the status quo—who flagged this passage of the Essays . 105 Another section of the Essays calls for limiting the scope of capital punishment, for example by replacing it with public shaming for dishonorable offenses like desertion. 106 In passing, Montaigne then refers to freedom of conscience and “the opinion of those who condemn capital punishment for heretics and unbelievers.” 107 That line may be interpreted as merely restating others’ views without endorsement, perhaps for self-protection. Roman censors flagged this veiled suggestion, too. 108

Ultimately, Montaigne embodies the emerging paradigm shift toward more humanistic sensibilities. He proclaimed: “I sympathize very tenderly with the afflictions of others” 109 and “I cruelly hate cruelty, both by nature and by judgment, as the extreme of all vices.” 110 Montaigne tellingly added: “Even the executions of the law, however reasonable they may be, I cannot witness with a steady gaze.” 111

Erasmus (c. 1469–1536), perhaps the most influential figure of the Renaissance, similarly expressed sensibilities suggesting that a normative evolution was underway before the Enlightenment. While he did not go as far as Montaigne, the Dutch philosopher expressed reticence toward executions, even as he recognized their necessity for deterrence and incapacitation. “To persuade men not to break the law, you must first use reasoned arguments, then, as a deterrent, the fear of divine vengeance against criminals, and in addition threats of punishment,” he observed in The Education of a Christian Prince (1516). “If these are ineffective, you must resort to punishment, but of a comparatively light kind, more to cure the disease than to kill the patient.” 112 Should this fail, Erasmus endorsed the death penalty to preserve social order, likening the criminal to “a limb” that must be “cut” from the body to protect its health. Despite this gruesome analogy, Erasmus insisted that rulers should do so “reluctantly” and “try all other remedies before resorting to capital punishment.” 113 The man known as “the Prince of the Humanists” was urging relatively limited use of the death penalty based on both humanistic and practical concerns two centuries prior to Beccaria.

C. Beccaria’s Successors

Reformers struggled against the status quo, as the death penalty tended to be socially accepted throughout the Renaissance and Enlightenment. 114 In the landmark Encyclopédie by Diderot and D’Alembert, a vast repository of mid-eighteenth–century knowledge, one finds the following passage: “It is doubtless that real sorcerers deserve death, and that even those who are only so by imagination must not be regarded as innocent . . . .” The article adds that it would be preferable to leave sorcerers unpunished, lest one admit their supernatural powers and reinforce superstition. Society should instead treat them as “madmen.” 115 More prosaically, the entry on “criminal law” states that “the law of death against an assassin is very just” in fostering public safety, although it would usually be excessive for theft. 116 Another entry posits that corporal punishments or torture may be legitimate because “there are a large number of cases where hope for reform [of the culprit] is lacking, and where the sentence could be extended until the final torment.” 117 Yet the Encyclopédie had diverse contributors and lacked a uniform position on criminal punishment, 118 as illustrated by entries stating that “[t]he best jurisconsults have even regarded lex talionis as a barbaric law, contrary to natural law” 119 or that corporal punishments are “barbarous” and “cruel.” 120 For our purposes, the Encyclopédie assumes the justification of some executions, which is revealing since it represented the views of leading thinkers.

The growing tide against capital punishment is more palpable in the Supplement to the Encyclopédie published in 1776 under Jean-Baptiste Robinet’s stewardship. 121 In the “assassination” entry, an anonymous author describes the use of capital punishment in diverse societies, before seeking another way as “a friend of humanity.” Other societies have preferred to banish, ostracize, dispossess, or fine murderers while “respecting their lives,” the author observes approvingly, adding that they feared offending God by killing wrongdoers. 122 Besides contending that the death penalty is inhumane vengeance, the Supplement foreshadows the right to life in modern human rights law. 123 Indeed, the anonymous philosopher disputes that a murderer forfeits “all rights he may have on his own life.” This humanistic claim is supplemented by a utilitarian one: even if the murderer could forfeit this right to life, “it would still remain to be seen whether the interest of society would be served” by executing him. 124

Insofar as the Supplement espoused abolition and distanced itself from the initial Encyclopédie , the anonymity of its “assassination” entry is intriguing. But it does not permit us to conclude that its author was Diderot, the most prominent philosopher associated with the Encyclopédie , despite speculation to this effect. 125 Although Beccaria’s On Crimes and Punishments enthused Diderot, just as fellow encyclopédistes , he deemed executions necessary unless lifelong forced labor proved a better deterrent. 126 Diderot’s reasoning did not reflect empathy. Rather, he exposed contradictions in the sensibilities of Beccaria, who had denounced the cruelty of executions before lauding the cruelty of lifelong forced labor as an alternative: “I observe that [Beccaria] abandons, with reason, his principle of mildness and humanity toward the criminal.” 127 Diderot equally signaled support for retribution in contending that it is “natural that the laws have ordered the murder of the murderer.” 128 His perspective was largely rooted in Rousseau’s view that the social contract empowers the state to execute wrongdoers. 129

In The Social Contract (1762), Rousseau nonetheless expressed ambivalence about the death penalty. 130 At the outset he argued that it may be necessary to preserve order. To avoid becoming “the victim of an assassin,” the Swiss philosopher wrote, “one consents to die if one becomes an assassin.” 131 Conversely, Beccaria framed capital punishment as “a war of the nation against a citizen” who never granted the state the power to someday take his life. 132 But it would be a mistake to reduce the divergence between Beccaria and Rousseau to one between an abolitionist and a retentionist. Both converged in expressing moral reservations about the death penalty and calling for its limitation. Indeed, in the aforesaid passage Rousseau hastened to add that “frequent harsh punishments are a sign of weakness or laziness in the government. There is not a single wicked man who could not be made good for something. One only has the right to put to death, even as an example, someone who cannot be preserved without danger.” 133 Rousseau thus conciliated humanistic and utilitarian arguments in a polyvalent analysis: the death penalty is inhumane, except if incapacitation is impossible.

The Encyclopédie also captures the weight of Montesquieu’s influence by reprising his justification of execution as “a punishment founded on reason, and drawn from the very source of good and evil,” which is “the remedy, as it were, of a sick society.” 134 This passage should not eclipse how Montesquieu helped steer a paradigm shift. Montesquieu was not an abolitionist but he emphatically called for milder punishments, thereby inspiring Beccaria and other reformers. 135 In The Spirit of the Laws , Montesquieu proclaimed that  “[t]he severity of punishments is fitter for despotic governments, whose principle is terror, than for a monarchy or republic, whose spring is honour and virtue.” 136 Montesquieu proposed a norm that has become a foundation of modern justice—“proportion in punishments.” 137 “It is a great abuse among us to condemn to the same punishment a person that only robs on the highway and another who robs and murders,” he underscored. 138

Furthermore, Montesquieu’s humanistic sensibilities led him to encourage rulers to spare wrongdoers’ lives: “So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame, and endear them to their subjects, that it is generally happy for them to have an opportunity at displaying it; which in this part of the world is seldom wanting.” 139 Providing diverse historical examples, he cautioned against executions: “The Emperor Maurice made a resolution never to spill the blood of his subjects . . . . Isaac Angelus took an oath that no one should be put to death during his reign.” 140

Montesquieu equally denounced the inhumanity and inutility of torture, demanding its abolition: “So many men of learning and genius have written against the custom of torturing criminals, that after them I dare not presume to meddle with the subject. I was going to say that it might suit despotic states . . . but Nature cries out aloud, and asserts her rights.” 141

The Spirit of the Laws is a prefiguration of Beccaria’s polyvalent abolitionist rhetoric. “Mankind must not be governed with too much severity,” Montesquieu explained, adding that wrongdoing “proceed[s] from the impunity of criminals, and not from the moderation of punishments.” 142 In the same passage he offers thoughts on deterrence. 143 While Montesquieu does not urge abolishing capital punishment, unlike torture, he finds it inhumane to execute wrongdoers in many instances, just as it is ineffective.

Once Beccaria made his plea for abolition in 1764, he caught the eye of another beacon of the Enlightenment. Voltaire crafted a lengthy commentary to the French translation of On Crimes and Punishments. Hoping that Beccaria’s treatise “might soften the barbarities that linger in the jurisprudence of so many nations,” 144 Voltaire began by evoking the predicament of an indigent woman condemned to die for abandoning her newborn. “[D]oes the death of the child justify the death of the mother?” Voltaire protested that “where charity is lacking, the law is always cruel.” “True jurisprudence aims to prevent the crimes,” not to repress them harshly. 145

Employing a polyvalent rhetoric, Voltaire called for a paradigm shift to end cruel punishments, while marshaling administrative, procedural, and utilitarian concerns. In particular, he proposed humane norms to reframe criminal law: vengeful retribution is an illegitimate justification for punishment; 146 the sentence must be proportional to culpability; 147 youth is a mitigating circumstance; 148 and when the law is ambiguous “the judge should pass the mildest punishment without any hesitation, because he is a man,” 149 which in modern language means “because he is human.” Voltaire’s vision encompassed procedural fairness, too, as he stressed that the accused should have a chance to defend themselves, including with counsel, and that exonerated innocents should receive reparations. 150 Like Beccaria, 151 Voltaire recommended lifelong forced labor as an alternative to death, given its greater utility to the state. 152 This utilitarian approach equally led Voltaire to suggest that executions may be counterproductive, as “a severe law sometimes produces crimes,” 153 or useless, because in countries implementing alternatives “[c]rimes did not increase as a consequence of this humane approach.” 154 For analogous reasons, Voltaire excoriated torture and corporal punishments. 155

Voltaire’s commentary did not express categorical opposition to capital punishment, leaving doubt about his ultimate conclusion, but denounced its cruelty and called for radically limiting its use:  “[H]umanity, which is stronger than the law, should spare the life of those for whom the law itself has ordained death.” 156

A decade after his commentary on Beccaria’s treatise, Voltaire took a more overtly abolitionist position. He organized a competition offering a monetary prize for the best draft legislation on criminal law, procedure, and evidence. 157 The philosopher accompanied the competition announcement with more reflections on humane and utilitarian justice, including “proportional” punishments that would blend “mildness” and “swiftness” for the benefit of “liberty and humanity.” 158 Disapproving the adage of an eye for an eye, he noted that executing a murderer will never bring a victim back. 159 Voltaire urged competitors to consider Beccaria’s abolitionist plea and assess “whether it is indeed reasonable that magistrates commit homicide to teach men to hate homicide.” 160 In Voltaire’s eyes incapacitation might be the lone justification for an execution if no alternative is available, thereby taking the life of a “rabid dog” to “save the life of the greater number.” 161 Still, Voltaire ended his pamphlet by urging rulers to treat criminals in the same way as Louis XVI, then the King of France, treated military deserters—by sparing their lives and enabling them to make amends. 162 The law should not search for “pretexts to spill blood.” 163

Overall, the prior sources show that a polyvalent abolitionist discourse had emerged by the late eighteenth century. Beccaria is the main archetype of this rhetoric. We saw that his humanistic sensibilities and calls for reform reflected a broader normative shift that had already emerged several generations earlier in the Renaissance and Enlightenment, as the writings of Erasmus, Thomas More, Montaigne, and Montesquieu demonstrate. This discourse did not merely comprise concerns about the death penalty’s ineffectiveness and unfair implementation. Philosophers equally marshaled moral and political objections to its inhumanity, cruelty, and impropriety—arguments akin to modern human rights abolitionism. Even though they did not demand outright abolition, Beccaria’s predecessors contributed to the abolitionist movement’s rise by demanding restrictions on capital punishment. In calling for abolition, Beccaria in turn influenced Voltaire, possibly the Supplement to the Encyclopédie , 164 just as he would influence America’s Founding Fathers, 165 French revolutionaries, 166 and beyond.

But how did this evolution in philosophical thought translate into concrete legal change? In 1765, Leopold II—then the Grand Duke of Tuscany and subsequently the Holy Roman Emperor—began applying Beccaria’s theory and granting clemency to all those sentenced to death in Tuscany. As Tuscany abolished capital punishment in 1786, Leopold declared: “It is with the greatest satisfaction for our paternal sentiments that we noticed that the mildening of punishments, combined with a fine attention in punishing crimes . . . had considerably diminished the lesser ones and made rare those of an odious nature.” 167 In 1787, his brother Joseph II abolished the death penalty in Austria save for treason. 168 Recalling how the path to abolition is not linear, Tuscany later reintroduced capital punishment but seldom applied it 169 before Italy joined the abolitionist camp in 1947. 170 Yet Beccaria’s ideas would resound far beyond Italy.

This Part examines the evolution of American abolitionism from the Enlightenment to Furman v. Georgia , the landmark 1972 Supreme Court decision that temporarily abolished capital punishment. 171 We will see how generations of American reformers followed in Beccaria’s footsteps by presenting a multifaceted critique of capital punishment’s immorality, inequity, and inutility. While humanistic claims are associated with modern European abolitionism, they actually played a significant role in the United States until the post- Furman era. This historical evidence further demonstrates that framing the death penalty as a violation of human rights and dignity is not a modern development. 172 Rather, the main modern transformation lies in how these norms have become the official basis for abolition in Europe, following a long battle by abolitionists. 173

Before its breakthrough in modern Europe, abolitionism initially made headway in the first democracy born of Enlightenment ideas: the United States. Its foundation enabled the concrete application of Enlightenment principles, although it would be a mistake to imagine American reformers unimaginatively implementing European philosophers’ views. The American Enlightenment was a period of vibrant intellectual life and innovation transcending European thought. 174 It encompassed a tendency toward “mildness” and “sentimental humanism” in criminal punishment. 175 The first “proto-prisons” aiming to rehabilitate offenders thus emerged in America in the 1780s and 1790s. 176 In this period “the propriety of capital punishment for any crime, even murder, was a bitterly contested issue,” as Stuart Banner describes. 177 This partly reflected the influence of Beccaria, whom the Founding Fathers and contemporary Americans widely read. 178

“[R]ising political figures, such as James Madison and the future governor of New York DeWitt Clinton, favored abandoning capital punishment altogether. Others, such as Thomas Jefferson and Benjamin Franklin, advocated eliminating the death penalty for all crimes other than murder,” Banner notes. 179 The Founding Father Benjamin Rush, a leading abolitionist, framed his position in both normative and practical terms, stressing “[h]umanity and reason.” 180 The focus on the root social causes of crime, prefigured centuries earlier in Thomas More’s Utopia , 181 gained traction during the American Enlightenment. The notion that wrongdoers were not inherently evil buoyed Rush and fellow abolitionists, who demanded that laws punish both more humanely and effectively. 182

In the final decades of the eighteenth century, reformers in diverse American states therefore sought to limit the death penalty. By 1798, five states had abolished it for all crimes besides murder. 183 Even if they did not demand full abolition, reformers commonly found broad use of capital punishment “barbaric” or “sanguinary.” 184 The humanistic outlook of those who urged downright abolition is inferable from accusations portraying them as naively “sentimental” and “soft,” if not “feminine,” for empathizing with criminals. 185 Empathy was not strictly limited to abolitionist circles. As in contemporary France, 186 the automatic death penalty for certain crimes periodically led American juries to acquit defendants out of sympathy. 187 As Banner explains, “much of the motivation for the invention of the prison arose from the growing distaste for executing burglars, robbers, rapists, and the like.” 188

In 1847, this gradual humanistic and utilitarian evolution led Michigan to abolish capital punishment, where it has never been reintroduced. 189 Few executions were documented in this region beforehand. 190 A legislative committee had recommended abolition, insisting that “no man hath the power to destroy life but by commission from God.” It added that executions slow the legal process, are irreversible, and could kill innocents. 191

Sojourner Truth and fellow Michigan abolitionists subsequently militated against attempts to reestablish capital punishment. Truth, a former slave who became a key figure of movements for the emancipation of black people and women, had settled in Michigan. In 1881, she appeared before its legislature and said a movement to reintroduce the death penalty “shocked me worse than slavery.” Deeming any execution state murder, she proclaimed: “When a man kills another in cold blood, and you hang him, then you murder in cold blood also . . . . I am against it!” According to Truth, executions outrage principles of Christian compassion. 192 Furthermore, in 1891, Thomas M. Cooley, a prominent Michigan judge and academic, specified that “the fundamental objection” expressed against capital punishment was normative, namely “the sacredness of life” and the bad example of a government that kills “without fear or horror.” 193 The situation of Michigan illustrates how nineteenth-century American abolitionists did not merely present practical or utilitarian objections to capital punishment, as many insisted on its inhumanity in terms foreshadowing the right to life in modern conceptions of human rights and dignity.

Wisconsin abolished capital punishment in 1853. 194 A journalist who observed the legislative hearings reported that the debate had a moral dimension. He personally deplored the “barbarities” of capital punishment, calling instead for “brotherhood” and “love.” 195 Administrative problems also spurred reform, including alleged ethnic bias, followed by a botched hanging, in the prominent case of John McCaffary, an Irish immigrant. 196 Administrative troubles likewise proved influential when Maine abolished capital punishment in 1887. In the run-up to reform, the execution of a black man, Clifton Harris, led to public outcry over discrimination. Evidence additionally suggested his innocence. Analogous problems surrounded the execution of Louis F.H. Wagner, a Prussian immigrant who vowed his innocence. Multiple botched hangings compounded these worries. 197 Certain Maine abolitionists nonetheless blended practical concerns with normative ones, such as Tobias Purrington who labeled executions useless “vengeance.” 198

Hence, reformers employed a polyvalent rhetoric in the three states leading American abolitionism in the nineteenth century: Michigan, Wisconsin, and Maine. Abolitionists did not oppose capital punishment solely because of administrative, procedural, and utilitarian concerns. Much like European contemporaries, 199 they also condemned its immorality, cruelty, and inhumanity. 200 This humanistic dimension reflected a wider context, as the norm of “sympathy” played a key role in nineteenth-century U.S. reform movements, from abolishing slavery and capital punishment to uplifting the working class. 201 A survey of America’s intellectual debate in this period supports this conclusion.

Ralph Waldo Emerson was an abolitionist. He associated capital punishment with retrograde institutions such as monarchy and feudalism. 202 In 1867, Emerson optimistically proclaimed that “this country and this age belong to the most liberal persuasion.” His conception of progress comprised “the abolition of capital punishment, and of imprisonment for debt; the improvement of prisons,” among other ambitious reforms. 203 In another lecture, Emerson backed the abolition of the death penalty and of “legal cruelties in the penal code,” but lamented that politicians lacked the moral character and vision to achieve idealistic social changes. 204 Even though the Transcendentalist movement hardly focused on capital punishment, it usually sympathized with abolition, in the image of Emerson. 205

Henry David Thoreau, Emerson’s peer, shared this sensibility. Thoreau famously denounced the hanging of John Brown, the anti-slavery rebel, but this plea does not tell us his views on executions in general. 206 More revealingly, Thoreau signed an 1849 petition protesting an execution in moral terms, casting it as “a crime in which we would under no circumstances participate, which we would prevent if possible and in the guilt of which we will not by the seeming assent of silence, suffer ourselves to be implicated.” 207 The condemned was a black man, and this likewise appeared to motivate Thoreau’s position, given his concerns about racial injustice. 208 His interest in the issue may have arisen at a young age, as he participated in a debate on abolition as a Harvard student. 209 “[T]he gallows bear an ill name, and I think deservedly,” he wrote later in life, expressing concern about the hanging of “many an innocent man.” “The days of the gallows are numbered,” he weighed, before alluding to “morbidly curious persons” who watch executions. 210

Frederick Douglass, arguably the foremost African-American leader of the nineteenth century, identified the death penalty as a violation of “human rights.” 211 Speaking on behalf of a group of abolitionists in Rochester, New York, Douglass evoked the right to life in modern European abolitionism by declaring: “[L]ife is the great primary and most precious and comprehensive of all human rights—that whether it be coupled with virtue, honor, or happiness, or with sin, disgrace and misery [it may not be] voluntarily destroyed [by] Government.” Douglass expressed a religious conviction akin to the idea of inalienable human dignity, calling life “a right derived solely and directly from God,” to wit the most “inviolable of all his gifts.” 212 Tellingly, Douglass did not focus these resolutions on the death penalty’s racist application but on humanistic grounds.

Douglass was not alone in defending a twofold abolitionism—of slavery and capital punishment. Although not all opponents of slavery held this sentiment, anti-slavery newspapers commonly depicted enslaving and executing human beings as brutal tyranny. 213 Other leading figures defended this dual abolitionism, including Wendell Phillips, 214 William Lloyd Garrison, Henry Wadsworth Longfellow, and Lydia Maria Child, who considered hangings anti-republican and unchristian. 215 Philipps notably applauded Michigan’s abolition and felt that doing so nationwide would honor “civilization and Christianity.” 216 As for Child, among the most influential women thinkers of her age, she expressed widely circulated thoughts on the gallows and the harsh predicament of the poor. 217 To Child, capital punishment was “savage,” “barbarous,” “ignominious,” a “legalized murder, in cold blood,” inflicting “cruelty” for hollow “vengeance.” 218 She witnessed the “disappointed rage” of a New York crowd that “felt cheated of a [public] hanging,” because the condemned had committed suicide in his cell. 219 Again evoking the right to life in modern human rights abolitionism, Child stressed: “To me, human life seems so sacred a thing, that its violent termination always fills me with horror . . . whether done contrary to law and custom, or according to law and custom.” 220 However, Child’s fundamentally humanistic, religious, and political opposition to capital punishment did not preclude her from expressing administrative and utilitarian concerns. She thus decried “the danger of convicting the innocent” based on “precarious” evidence. 221 She excoriated arbitrariness, since juries spared the lives of many offenders. Child added that executions foster crime by teaching violence and—implicitly channeling Beccaria and European abolitionism—underlined that “testimony from all parts of the world is invariable and conclusive, that crime diminishes in proportion to the mildness of the laws.” 222

Several leaders of the contemporary women’s rights movement likewise stood against capital punishment. 223 Susan B. Anthony joined Frederick Douglass at the aforesaid Rochester anti-death penalty meeting in 1858. 224 The suffragist Ida Husted Harper, whom Anthony entrusted as her biographer, described the position of Anthony and her peers regarding this hanging for homicide: “It was not that they doubted the [defendant’s] guilt . . . they were opposed to the principle of what they termed judicial murder.” 225 Elizabeth Cady Stanton, who led the National Woman Suffrage Association from 1869 to 1890, found executions dehumanizing. “It makes me shudder to think of the cruelties that are inflicted upon criminals in the name of justice,” she deplored, labeling capital punishment “a relic of barbarism” and the gallows an instrument of “torture.” 226

A magisterial study by John Cyril Barton offers other innumerable examples of nineteenth-century American authors decrying the death penalty’s cruelty and immorality. Their stance reflected “the Enlightenment ideal of a less severe, more proportional government” and “a republican disdain for the so-called ‘right’ of a state to take its citizens’ lives.” Embodying this reformative spirit, works of literature called for limiting capital punishment or abolishing it altogether. 227 In 1834, an essay under the pen name Humanity proclaimed, “I am opposed to all executions, for crime, and especially to those which are made public.” 228 Barton explains that this statement “was far from radical for the period,” as “[i]nfluential legislators and politicians, as well as prominent reformers, ministers, and writers, made such declarations.” 229

Humanity’s essay prefaced a book that was among the favorites of Nathaniel Hawthorne. 230 According to Barton, evidence suggests that Hawthorne supported capital punishment, despite reservations. 231 But multiple other writers matched Humanity in repudiating this practice. For instance, John Neal, whose popular novel Logan (1822) featured hanging scenes, like many contemporary novels, 232 expressed abolitionist convictions. Neal did not believe “in the wisdom of strangulation, for men, women, and children, however much they might seem to deserve it,” adding that “the worst men have most need of repentance, and that they who are unfit to live, are more unfit to die.” 233

Walt Whitman, another prominent voice of the age, denounced the cruelty, inutility, and inequity of capital punishment. 234 Despite urging empathy for crime victims, he was accused of naïve womanliness for being sentimental toward convicts. Co-opting these charges, he affirmed that sympathy reflected true religion. 235 When Whitman claimed “we forget that [the criminal] is still a duplicate of the humanity that stays in us all,” 236 his rhetoric embodied Durkheim’s aforesaid theory of penal mildness: “What concerns man concerns us all; because we are all men. The feelings protecting human dignity thus are personally dear to us.” 237 Whitman contended that, “to a person of large mind, principles are regarded in their application to the widest humanity.” Decrying the gallows—“Monstrous!”—he impugned partisans of “legal strangulation.” 238

A co-founder of the Brooklyn Association for the Abolition of the Death Penalty, Whitman reasoned that all citizens in a democracy are responsible for an execution by their government. 239 A contemporary Universalist pastor similarly qualified executions as state murders perpetrated in citizens’ name. Certain U.S. abolitionists associated capital punishment with omnipotent European monarchies that callously eliminated their citizens. 240 A generation earlier, Benjamin Rush had proclaimed that “[c]apital punishments are the natural offspring of monarchical governments,” whereas republican governments “appreciate human life” and are capable of being “merciful.” “An execution in a republic is like a human sacrifice in a religion,” Rush stressed. 241 From this angle, a sphere of individual rights protects citizens from their government. This rationale is analogous to the modern principle that, irrespective of their wrongdoing, prisoners possess inalienable human rights, including the right to life. 242

The U.S. social debate would continue to evolve as the country marched toward modernity. By the late nineteenth century, abolitionists stopped insisting on certain religious claims, such as “the Sixth Commandment (‘Thou shall not kill’) and God’s prohibition on Cain’s execution for fratricide.” They instead leaned toward “theories of biological or environmental determinism informed by new scientific and sociological approaches to criminal behavior,” including statistical data. 243

Overall, nineteenth-century American death penalty debates prove both distant and familiar. Certain facets appear dated, like the weight of phrenology, a pseudoscience imputing criminality to the shape of people’s skulls. 244 At the same time, many statements for or against the death penalty in this epoch could have been written today, such as those urging mercy or retribution. 245 While we should be wary of anachronisms, we should simultaneously avoid the fallacious assumption that modern controversies are entirely new. Besides, even obsolete aspects of the nineteenth-century debate have modern analogues. Phrenology stands repudiated, yet the science of the mind remains prominent in modern capital trials, as the role of psychiatric experts demonstrates. 246 Biblical verses are not as omnipresent as they were yesteryear, 247 but religious faith remains a factor in shaping attitudes toward the death penalty in a nation that remains highly devout, particularly in the South, the “Death Belt.” 248

As America entered the twentieth century, Clarence Darrow issued a clarion call, revealing a continuity with nineteenth-century abolitionism. One of the most prominent lawyers in U.S. history, Darrow published a novel titled an Eye for an Eye (1905) casting executions as premeditated murders. 249 In a public debate a few decades later, Darrow labeled execution a “horrible” punishment and stressed: “I would hate to live in a state that I didn’t think was better than a murderer.” 250 The renowned orator deployed a polyvalent rhetoric in condemning the death penalty: “I am against it because I believe it is inhuman, because I believe that as the hearts of men have softened they have gradually gotten rid of brutal punishment, . . . because I believe that it has no effect whatever to stop murder.” 251 Darrow’s position again confirms that American abolitionists embraced arguments akin to modern human rights norms centering on the immorality of capital punishment: “If a State wishes that its citizens respect human life, then the State should stop killing;” 252 “Every human being that believes in capital punishment loves killing, and the only reason they believe in capital punishment is because they get a kick out of it;” 253 “In the end, this question is simply one of the humane feelings against the brutal feelings.” 254 Darrow’s statements further evoke how the death penalty inherently presents normative questions, even though they are often repressed in the modern American psyche given the emphasis on practical problems surrounding capital punishment. 255

Fellow reformers maintained a multifaceted discourse, as illustrated by how a sociopolitical magazine in Darrow’s time cited data on executions’ lack of deterrence. For good measure, it added that executions are “anachronistic” and that abolition would benefit “humanity.” 256

Meanwhile race crystallized as a significant dimension of America’s death penalty debate, 257 as it stymied the public’s capacity to identify with countless prisoners at a human level. This was powerfully captured in Richard Wright’s 1940 novel, Native Son , when whites dehumanize the antihero Bigger Thomas, an indigent black man charged with murder and rape: “All in all, he seems a beast utterly untouched by the softening influences of modern civilization . . . . [Experience] with such depraved types of Negroes has shown that only the death penalty, inflicted in a public and dramatic manner, has any influence upon their peculiar mentality.” 258

A few decades later, another influential American voice condemned the inhumanity, racism, and ineffectiveness of state killing. “Since the purpose of jailing a criminal is that of reformation rather than retribution . . . it is highly inconsistent to take the life of a criminal,” Martin Luther King, Jr. argued. “Capital punishment is against the best judgment of modern criminology and, above all, against the highest expression of love in the nature of God.” 259 On another occasion, King protested Alabama’s discriminatory execution of a black juvenile for allegedly raping a white woman. King then appealed to “human dignity” and suggested that the juvenile’s potential innocence should not obscure fundamental moral objections to capital punishment. 260

In practice, however, the stances of Darrow, King, and fellow abolitionists seldom reflected majority opinion, which impeded reform. Abolition nonetheless advanced under the Progressive movement in the late nineteenth and early twentieth centuries. Ten states passed it between 1897 and 1917, although eight reintroduced capital punishment by the end of the 1930s. 261 The number of abolitionist states would stagnate, reaching a dozen by 1972. 262 And the number of state executions gradually plummeted from 1,523 in the 1930s to 192 in the 1960s. 263 This might have been due less to a societal rejection of capital punishment than to the U.S. Supreme Court’s growing willingness to regulate its administration. 264 Still, polls showed declining support. 265 By 1972, a polyvalent abolitionist discourse had entered the Democratic Party Platform, which underlined the death penalty’s cruelty, inequity, and uselessness: “We believe that the quality of justice will be enhanced by: . . . Abolishing capital punishment, recognized as an ineffective deterrent to crime, unequally applied and cruel and excessive punishment.” 266 The California Supreme Court also adopted a multifaceted reasoning in its landmark decision abolishing capital punishment under the state constitution, concluding “it is incompatible with the dignity of an enlightened society to attempt to justify the taking of life for purposes of vengeance.” 267

Finally, or so it seemed, the U.S. Supreme Court abolished the death penalty in Furman v. Georgia (1972). 268 Furman was a testament to the advocacy of Anthony Amsterdam, the foremost American abolitionist in the 1960s and 1970s. Known as one of the most outstanding lawyers in U.S. history, Amsterdam headed the anti-death penalty unit at the NAACP LDF (National Association for the Advancement of Colored People Legal Defense Fund). 269 Justice Byron White would recall Amsterdam’s performance in Furman as the best oral argument he had ever witnessed. 270

The historical evolution of American abolitionism until that point was reflected in the briefs that Amsterdam filed in the Furman litigation. As discussed in detail elsewhere, 271 the leading brief was the one in Aikens v. California , a mostly forgotten companion case that became moot, leaving Furman as the main case standing before the Court. 272 While Amsterdam had marshaled numerous administrative claims against the death penalty, especially in prior legal challenges, 273 the Aikens brief emphasized that “the principal arguments urged to support its abolition have always been humanistic , and concerned with fundamental human decency.” 274 Aikens - Furman was fundamentally a challenge to “evolving standards of decency,” the benchmark to interpret the Eighth Amendment. 275

When the Supreme Court delivered its historic Furman decision, experts thought that America had firmly entered the abolitionist camp. 276 Instead, the Justices soon reauthorized executions in Gregg v. Georgia (1976). 277 Today, America is the only retentionist Western democracy. European law has notably concluded that any execution is a human rights violation. We will later return to Furman and how the American debate evolved in its aftermath. 278

At this stage, our examination of the American landscape from the late eighteenth century to the 1970s demonstrates that generations of abolitionists blended a humanistic and practical discourse. One can find in this period a prefiguration of modern American abolitionism’s focus on administrative, procedural, and utilitarian problems. By the same token, our survey documents how past American reformers regularly denounced the cruelty and inhumanity of the death penalty—killing prisoners is wrong per se—in language evoking human rights claims that have cemented abolition in modern Europe. The striking reticence of modern American reformers to use a humanistic discourse has obscured the past; and may have contributed to cultural essentialism assuming that such humanistic sensibilities are fundamentally “European” and not “American.” Moreover, the past American landscape shows that human rights objections were not suddenly born around the 1970s in Western Europe. 279 Rather, the emergence of modern democracy in the United States saw the continuation of a normative evolution in criminal punishment since the Renaissance and the Enlightenment. We will now see that, up until Furman , Europe charted a path toward abolition that was closer to the American experience than is commonly believed.

This Part pivots toward Europe to assess how its abolitionist movement evolved since the Enlightenment. While an overview of all European nations is beyond this Article’s scope, France offers instructive points of comparison to America. Enlightenment ideals shaped both nations, culminating in revolutions in the same period. 280 Despite the emergence of vibrant abolitionist movements in each country in the eighteenth century, they subsequently became laggards in abolitionism. In 1981, France became the last Western European democracy to abandon capital punishment, just as retentionist America was increasingly isolated among peer countries. 281 Comparing both nations therefore illuminates how abolitionists defended their cause in the face of adversity. We will later see that several key dynamics in France were analogous to the evolution of abolitionism in neighboring countries. 282 France thus offers a window into abolitionism in Europe until the adoption of international treaties buttressing abolition in the final decades of the twentieth century. 283

To numerous scholars, “the French Revolution and the fall of the Bastille came to symbolize the meanings of modern history.” 284 Before France’s revolution degenerated into the Terror and some 17,000 death sentences, 285 it matched the American Revolution in embodying Enlightenment reformism. Like their American peers, 286 French revolutionaries widely read Beccaria, whose precepts influenced their Declaration of the Rights of Man and the Citizen (1789). 287

A commission on penal reform subsequently presented its conclusions to the National Assembly in 1791. Le Pelletier de Saint-Fargeau, who headed the commission, proposed to replace capital punishment with imprisonment. Unlike past abolitionists’ calls for lifelong forced labor, he envisioned a form of rehabilitation under which sentences could vary between twelve and twenty-four years. Before imprisonment, however, wrongdoers would be exhibited on a plaza for public shaming and deterrence. Exhibiting the spirit of the day, the commission nonetheless proposed to retain executions for political crimes. 288

The vote failed, despite the exhortations of Adrien Duport. An architect of the Declaration of Rights’ bar on excessive punishments, Duport invoked Montesquieu and Beccaria when contending that cruel punishments encourage crime. 289 He equally proposed reframing the penal code with an article banning any sentence violating “the respect for the dignity of the human species.” 290 Still, the National Assembly reduced the number of capital crimes, abolished torture, and prohibited perpetual punishments in the name of rehabilitation. 291

Robespierre would come to incarnate the glaring contradictions between the French Revolution’s ideals and its carnage. Ironically, Robespierre deemed himself an opponent of capital punishment. He fervently urged its abolition, calling it a useless atrocity violating the “dignity” of humankind. 292 Meanwhile, Robespierre masterminded the execution of countless counterrevolutionaries. This contradiction partly stems from how Robespierre supported abolition—except for treason. Robespierre thus predictably demanded the beheading of Louis XVI, declaring that the king “must die so that the nation lives.” 293 Condorcet, another prominent revolutionary and abolitionist, was more consistent in his convictions as he opposed the monarch’s execution: “The punishment for conspirators is death. But this punishment is against my values. I will never vote it.” 294

The Terror came to an end with Thermidor, the fall and beheading of Robespierre on July 28, 1794. This facilitated additional abolitionist proposals, leading to a compromise on October 26, 1795. Legislators voted abolition but stipulated that it would come into force once peace returned, namely at an indeterminate future date. 295 This meant voting retention. The recurrent legislative debate nonetheless demonstrated that the death penalty’s propriety preoccupied numerous French revolutionaries.

The fate of abolitionism was subsequently tied to the near-century of instability following the French Revolution, as the nation saw a succession of political systems: the Directory (1795–1799), Napoleon’s various regimes (1799–1814, 1815), diverse monarchies (1814–1815, 1815–1848), the Second Republic (1848–1852), and the Second Empire (1852–1870). Abolitionism generally regressed under the most authoritarian systems, when the number of capital crimes grew. 296 The Napoleonic penal code even reintroduced corporal punishments in 1810, especially for parricides who would have their fists cut off before being executed. This practice was eliminated in 1832, along with branding. 297 French reformers kept demanding the limitation or abolition of capital punishment. For instance, the Société de morale chrétienne organized in 1826 a competition rewarding the most convincing abolitionist argument. Charles Lucas, a prominent jurist, won by declaiming the inherent injustice of an execution. 298

The advent of the July Monarchy (1830–1848) under Louis-Phillippe, the so-called Citizen King, enabled a reduction in capital punishment’s scope. 299 During the July Revolution (July 27–29, 1830) that gave rise to this constitutional monarchy, reformers proposed abolishing the death penalty to herald a new age. Among them stood the Marquis de Lafayette, who decades earlier had fought alongside American revolutionaries as a protégé of George Washington, before becoming a French revolutionary. France’s ensuing political turmoil led him to flee and be imprisoned in Austria for five years. 300 Lafayette regretted that the French Revolution failed to abolish capital punishment and his experiences made him mindful that criminal punishments could serve to repress dissidents: “[S]ince our political storms I feel an insurmountable horror for the death penalty.” Besides underlining the risk of executing innocents, Lafayette cast abolition as a “grand act of humanity.” 301 Other influential voices then espoused abolitionism, such as Alphonse de Lamartine, a famous poet and legislator, who decried capital punishment as sanguinary, useless, and illegitimate vengeance. The Société de morale chrétienne collected 18,000 signatures for an abolitionist petition. King Louis-Philippe lauded public enthusiasm for the cause, declaring in 1830: “Regarding the abolition of the death penalty, I am disposed to it due to a conviction that I have held my entire life. Your wish is mine, and I will put all my efforts into its realization.” 302 In reality, it would never be abolished in his reign of nearly two decades. Louis-Philippe’s words may appear hypocritical, but they reveal a chronic normative debate about the death penalty’s inhumanity.

Victor Hugo would come to personify abolitionism. In 1829, he published The Last Day of a Condemned Man , an avant-garde first-person narrative aiming to have readers identify with someone sentenced to death. It is unclear whether the narrator is guilty or innocent, or even what he is accused of. The novella is sophisticated, but its message is straightforward: any execution is inherently cruel and inhumane. 303 Hugo’s sensibilities paralleled those of nineteenth-century American intellectuals who demanded abolition. 304

Hugo was not merely a celebrated author, as he was a legislator under the July Monarchy and the ensuing Second Republic. 305 While he urged abolition before the National Assembly, 306 his indefatigable calls for penal reform extended beyond capital punishment. In 1847, Hugo presented a detailed perspective evoking Durkheim’s subsequent theory on the gradual mildening of punishments with the evolution from absolute monarchy to democracy. 307 Indeed, Hugo described a historical shift from premodern justice centered on repression and deterrence toward the humanization and rehabilitation of prisoners. Citing Montesquieu, Beccaria, and other thinkers, Hugo described how the prisoner has incrementally become “a creature worthy of attention even in his abasement.” He proclaimed a right “that no sentence can take away: the right one can never lose, the right to become better.” “Yes, the condemned is a man . . . . even when one no longer respects the man, one must still respect his humanity,” Hugo added. 308 His reasoning closely mirrored modern conceptions of inviolable dignity rooted in empathy toward prisoners at an abstract human level. 309

Multiple renowned French intellectuals and legislators shared Hugo’s abolitionism. Lamartine proposed inaugurating the Second Republic with capital punishment’s abolition in the name of the “inviolability of human life.” 310 The relationship between abolition and sociopolitical transformation is likewise manifest in the declaration of the socialist leader Louis Blanc, who supported abolition to offer “humanity this joyous gift with the advent of democracy.” 311 Victor Schœlcher, the leading figure behind the abolition of slavery under the Second Republic, embraced abolitionism too. Like many other French reformers, he blended normative, utilitarian, and administrative objections, including the bad example of a government that kills in vengeance, the risk of executing innocents, lack of deterrent value, and how murderers are underprivileged citizens whose education the government had utterly neglected. 312

The Second Republic eventually rejected abolition by a 498–216 vote, although it eliminated executions for political crimes. 313 The abolitionists’ defeat was undeniable and subsequent events further undermined their cause. After Napoleon III toppled the Second Republic, France reverted to authoritarianism from 1852 to 1870. Relative political stability would return with the Third Republic (1870–1940), which the historian François Furet identified as the actual end of the French Revolution and belated victory of its ideals following a near century of upheavals, backlashes, and regressions. 314 Scholars generally regard the Third Republic as a period of incremental liberalism, equality, and human rights in France. 315 As abolition slowly progressed in diverse parts of nineteenth-century Europe, French legislators made another push for it but failed by a 353–150 vote in 1894. 316

In this century abolitionism ultimately enjoyed less success in France than America, where greater political stability favored reform and the rule of law. Decentralization under federalism notably enabled abolition to prevail in Michigan and Wisconsin in 1847 and 1853, respectively. 317 Despite these divergences, we have documented a striking convergence in both nations’ abolitionist discourse from the Enlightenment to the nineteenth century.

The relative convergence persisted as France entered modernity. The return of democracy following a quasi-century of post-revolutionary political instability led executions to decline, partly due to frequent executive clemencies. 318 Famous French statesmen would demand abolition under the Third Republic, including Jean Jaurès, Léon Gambetta, Jules Ferry, Aristide Briand, and Georges Clemenceau. 319 Humanistic sensibilities continued to influence abolitionism, as illustrated by the stance of the socialist legislator Victor Dejeante in 1894: “It is in the name of humanity that we tell you: abolish the death penalty, scratch it from your legislation, make disappear this relic of barbarism.” 320 Jaurès, a towering figure in the history of social democracy, would declare that it was unchristian to tell prisoners “that they are just scum and that they only deserve to have their lives taken.” 321

While the two world wars did not favor abolitionism in France, the number of executions dropped in the 1950s. In theory, the death penalty’s scope expanded with the creation of new capital crimes like armed robbery. But France executed no one for this and the penalty was declining, as in Europe. 322

The paradigm shift materialized when Parliament passed abolition in 1981 and when France subsequently insisted that any execution is a human rights violation. 323 But the shift was more in the fact that this became the official discourse in Europe. As we saw, abolitionists in France, America, and beyond had long condemned the death penalty’s inhumanity. As Zimring correctly hypothesized, human rights norms “were important motivations beneath the surface of death penalty debates long before they emerged in the aftermath of abolition.” 324

In France at least, this paradigm shift did not occur despite an “absence of high levels of intellectual discussion on questions about capital punishment policy,” 325 but partly because of this very intellectual debate. We saw that thinkers in France began expressing humanistic concerns about the death penalty centuries earlier, in the image of Montaigne, Montesquieu, Voltaire, French revolutionaries, Victor Hugo, and numerous other reformers.

The breakthrough toward abolition in postwar France marked the continuation of this longstanding intellectual and public debate. Illustratively, in 1952, the abolitionist movie Nous sommes tous des assassins ( Are We All Murderers? ) enjoyed relative success. Directed by André Cayatte, this drama highlighted the cruelty of the execution process. 326

In 1957, Albert Camus joined the fray in publishing Reflections on the Guillotine , an abolitionist manifesto. 327 His two most prominent novels, The Stranger 328 and The Plague , 329 had previously depicted the inhumanity of capital punishment. Reprising an account from The Stranger , 330 Camus began his manifesto by describing the reaction of his dismayed father who vomited upon returning from a public execution. 331 Throughout Reflections on the Guillotine , Camus’s rhetoric is highly normative and humanistic in condemning capital punishment: “that ritual act is horrible,” 332 “primitive,” 333 a “vile death” akin to “torture,” 334 a “crude surgery,” 335 “the most premeditated of murders” committed by “a monster” 336 “from a barbarous period” 337 for “revenge.” 338 The death penalty’s uselessness is also a recurrent theme, as Camus is another archetype of polyvalent abolitionist rhetoric. He thus insisted on executions’ lack of deterrent value 339 and the risk of executing the innocent, interestingly citing a potential wrongful conviction in a U.S. capital case. 340 This reference, much like American reformers’ numerous citations to Reflections on the Guillotine in subsequent decades, exemplifies the transatlantic convergence in abolitionism in this epoch. 341 Last but not least, Camus advanced that the death penalty deprives human beings of their “dignity,” 342 which has become the official basis for human rights abolitionism in Europe. 343

As intellectuals like Camus sought to put abolition on the political agenda, capital punishment gained public attention due to high-profile murder cases. 344 In 1965, the father of a murdered child founded a pro-death-penalty organization that diverse public figures embraced. 345 The killing of a prison guard and nurse in 1971 further galvanized death-penalty supporters. In 1976, the murder of a little boy received highly emotional news coverage in France, 346 evoking the inflammatory reporting tied to the exceptional harshness of modern American criminal justice. 347 That year the execution of Christian Ranucci for killing a young girl led to a vigorous social debate given his potential innocence and false confession. 348 Gilles Perrault, the author of a 1978 book on the case— Le pull-over rouge ( The Red Sweater ), 349 adapted into a movie the following year 350 —testified before Parliament. 351 In addition to innocence, the hearing addressed the morality of executions when a Catholic bishop testified in favor of abolition, despite acknowledging divisions within the Church. “[A] man cannot be reduced to the act he committed at a given time,” Monsignor Fauchet pleaded, approving the ongoing “cultural” evolution away from executions. 352

All this media coverage enhanced the public profile of a defense counsel—Robert Badinter—who would eventually become the most prominent French abolitionist. Badinter embarked on this path in his forties, partly by happenstance, when he was asked to assist the defense in a capital case. 353 He ultimately represented several capital defendants and regularly spoke for abolition in the media. 354 While Camus might have become the movement’s most emblematic figure as France headed toward abolition, he died in 1960 at forty-six in a car accident. Badinter became the face of the cause.

In this period, intellectuals, journalists, and politicians grew increasingly concerned about a climate of vengeful justice. Death threats fell on Badinter, whose Paris apartment was bombed in 1976. Undeterred, the following year Badinter convinced jurors to spare the life of Patrick Henry, who was widely reviled for murdering the aforementioned little boy. 355 Badinter’s summation arguments denounced the immorality of the death penalty: “Justice, is that the pain of the parents of Philippe Bertrand, combined with the pain of Patrick Henry’s parents, if you let him be guillotined? The death of a twenty-three-year-old man to respond to the death of a seven-year-old child, that is not justice.” 356 Badinter warned the jurors that no appellate reversal or executive clemency would follow—they would be responsible for Henry’s death:

You can kill him or not. If you vote death, know he will be cut in half. Then time will pass. There will be other atrocious crimes, because they have always existed. And, then, one day, in ten years, in fifteen years, the death penalty will be abolished in France . . . . And you will be alone with your vote. You will tell your children that you sentenced to death a child killer, and you will see their look in their eyes. 357

French abolitionists kept insisting that any execution is inhumane. In 1979, Jean Bloch-Michel challenged Pierre Bouzat, the dean of the Rennes law school, who had defended the death penalty if used appropriately, such as without torturous acts. Bloch-Michel was unconvinced: “Torture is unacceptable. The death penalty is acceptable. Why?” 358

Certain French abolitionists underlined practical problems surrounding the penalty’s application. This led to a vigorous reaction from Jean Laplanche, a writer and psychoanalyst, who published a widely publicized article deeming France’s death-penalty debate “dehumanizing,” given its utilitarian dimensions. In Laplanche’s view, society was weighing the worth of offenders and victims to see which murderers deserved to die—instead of valuing every person’s life. 359

In a subsequent debate with Robert Badinter and Michel Foucault, Laplanche deplored an alleged tacit agreement to only refer to utilitarian arguments. 360 Badinter, by then a major public figure, responded that it was legitimate for him and fellow defense counsel to present utilitarian claims at trial if they were effective. He added that failing to rebut prosecutors’ claims of deterrence would be a poor strategy. 361 Badinter’s answer reminds us how abolitionists, from France to America, had long found a polyvalent rhetoric the best strategy, even if they were morally opposed to executions per se.

Abolition finally arrived in 1981. The presidential election of François Mitterrand, a Socialist, proved decisive in interrupting a series of conservative or centrist governments. 362 Mitterrand had promised abolition if he were elected. 363 Epitomizing a spectacular paradigm shift, he made Badinter—an anti-death-penalty lawyer—the Minister of Justice.

In a solemn speech, Badinter appeared before the National Assembly to demand abolition on behalf of Mitterrand’s government. 364 After invoking past abolitionists, from French Revolutionaries to Victor Hugo, Jean Jaurès, and Albert Camus, Badinter signaled that France was a laggard in Western Europe in retaining capital punishment. 365 He sought to refute the arguments of retentionists, who repeatedly interrupted him to trade barbs. Badinter notably emphasized executions’ lack of deterrent value and the risk of executing innocents, citing the Ranucci case. 366 Again evoking the transatlantic abolitionist dialogue, Badinter drew a comparison between the discriminatory application of capital punishment in America, where it heavily targeted black people, and in France, where immigrants and Muslims disproportionately were executed. 367

Moreover, Badinter’s multidimensional discourse stressed the death penalty’s fundamental inhumanity, stating four times that abolition is a “moral choice.” 368 He urged legislators to “refuse a justice that kills,” a “justice of angst and death,” an “anti-justice” that would be “fear triumphing over reason and humanity.” 369 Executions are characteristic of “dictatorships,” where “contempt for human rights” reigns. 370 Few people possessed as much credibility to draw this parallel between authoritarianism and state killing. Under the Nazi occupation of France, Badinter’s father and other family members were deported to death camps pursuant to anti-Semitic laws. 371

A few weeks after Badinter’s speech, Parliament voted overwhelmingly for abolition. This was partly because Mitterrand’s Socialist Party held numerous seats, but also because of a wider evolution. Tellingly, legislators who voted for abolition encompassed certain conservative leaders, including Jacques Chirac, who was elected President in 1995, and François Fillon, who became Prime Minister in 2007. 372 France now embraces the official European position that all executions violate human rights. 373 This paradigm shift did not occur suddenly. It was the fruit of a gradual evolution traceable at least to the Renaissance and Enlightenment. France was but one stage in a wider historical evolution that would culminate in European law forbidding the death penalty as inherently inhumane.

While a discussion of abolitionism’s evolution in all European countries is outside this Article’s scope, key dimensions of France’s path are analogous to those in neighboring nations, especially the gradual shift from polyvalent abolitionism toward human rights. For example, studies suggest that reformers in Germany, Portugal, and the United Kingdom historically presented both utilitarian and humanistic arguments to limit or abolish the death penalty. 374 Today, these nations have gravitated toward the position that any execution is an inherent human rights violation. 375 Although the dates of abolition varied for each country—Portugal (1867), West Germany (1949), and the United Kingdom (1965) 376 —abolitionism tended to evolve in the same direction. This does not deny national variations. In Germany, one may thus identify a “Holocaust atonement effect” 377 shaping dignity’s development as a legal norm following World War II, 378 including in the abolitionist debate, which recurrently addressed the Third Reich’s killings. 379 Nevertheless, Germany’s debate over the propriety of capital punishment did not begin then. It was already intense in the age of Bismarck. 380 More to the point, the German-speaking world had an influential Enlightenment figure akin to Beccaria, Joseph von Sonnenfels (1733–1817), an Austrian who advocated more humane sentences and restrictions on capital punishment. 381

Overall, scholarship indicates that the path toward abolition has been an incremental, long-term evolution, 382 thereby corroborating our case study of France. The main exceptions include former Soviet bloc countries that abolished capital punishment soon after the collapse of the U.S.S.R., partly in order to enter the Council of Europe. 383 The consolidation of Europe as an execution-free zone, as well as the decision of European nations and international bodies to support abolitionism internationally, would contribute to a sharp divide with the United States.

Until the last decades of the twentieth century, abolitionism in America and France, if not the rest of Europe, converged more than it diverged. Since the Enlightenment abolitionists had polyvalently marshaled humanistic and practical objections to the death penalty. Yet social shifts in modern America led humanistic approaches to decline under a dramatically harsher social climate. Executions resurged in the 1980s after the Supreme Court emphatically reauthorized capital punishment in Gregg v. Georgia (1976), after effectively abolishing it in Furman v. Georgia (1972). In these cases, the only Justices who focused primarily on the death penalty’s inhumanity and substantive cruelty were William Brennan and Thurgood Marshall, both of whom voted for categorical abolition. The remaining Justices concentrated on administrative, procedural, and utilitarian issues. 384 This fostered a path dependence under which practical issues would dominate the U.S. death penalty debate in subsequent decades, 385 eclipsing humanistic concerns. 386 Moreover, the rise of mass incarceration in this epoch essentially signified mercy for no one. 387 In capital cases and beyond, humanistic principles have scant influence in modern America, which now has practically the highest incarceration rate worldwide. 388 Under these circumstances, U.S. abolitionists plausibly found humanistic arguments less promising. Another possibility is that the normative shift toward draconian punishments affected social reformers, including in the “progressive” camp, by leading them to become less humanistic in outlook. This may have resulted in the emergence of the non-humanist abolitionist, if not the anti-humanist one who morally supports the death penalty but deems it unworkable.

Again, this trend is relative, not absolute. 389 Certain American abolitionists suggest that executions are fundamentally wrong. In doing so, they employ a polyvalent rhetoric blending humanistic and practical reasons. 390 Still, the modern emphasis on practicality is remarkable by U.S. historical standards and international ones.

By contrast, as abolitionism triumphed in Europe categorical humanistic objections came to trump practical ones. This led to the divergence that Franklin Zimring brilliantly captured, 391 which is best understood as the present point of a long-term evolution whose earlier periods have been overlooked. The shift in Europe is not that human rights norms suddenly emerged around the 1970s, as Zimring and Samuel Moyn argue, 392 but that they became the official basis for abolition. This was the fruit of a gradual normative evolution partly precipitated by generations of abolitionists denouncing the inhumanity, cruelty, barbarity or immorality of executions. In 1983, the Council of Europe issued an optional protocol abolishing the death penalty except in wartime. 393 A protocol abolishing it in all circumstances followed in 2002. 394 The second treaty is more explicit about its humanistic rationale, as its preamble underlines “the right to life” and “the inherent dignity of all human beings.” 395 The European Union has taken an identical position. 396

A premise behind human rights rooted in dignity is that they are inalienable. 397 One cannot forfeit them by committing a crime or for any other reason. The focus is not on the worth of an individual offender’s life but on the worth of all human beings at an abstract level. 398 Human dignity has evolved toward universality and is not based on individual merit. 399 European law thus essentially recognizes respect for human rights and dignity as a duty imposed on government . Irrespective of whether a murderer is despicable, the government should never lower itself to their level by killing an incapacitated person. Conversely, American law holds that people can forfeit their life by committing murder and discounting their duty toward others. The value of their life is tied to individual merit. 400 While America recognizes certain inalienable rights, 401 Europe is more inclined toward this approach, helping shape distinct forms of abolitionism.

To his credit, the divergence in framing that Zimring identified has strengthened since his book’s publication in 2003. In Al-Saadoon (2010), the European Court of Human Rights (ECtHR) held that the death penalty inherently violates the right to life and right not to face inhuman or degrading punishments under the European Convention on Human Rights. Hence, it categorically barred extraditing anyone who might be executed. 402 Previously, in Soering (1989), the ECtHR had focused on administrative problems in forbidding the extradition of a detainee who could have been executed in America. Sidestepping the inhumanity of the death penalty itself, Soering found the endemic delays before U.S. executions a form of mental torture—the “death row phenomenon”—since prisoners live for years under threat of being killed. As Judge Jan De Meyer deplored in a concurrence, Soering ’s reasoning meant that extradition would have been appropriate but for the death row phenomenon. 403 Now Europe has essentially abandoned Soering in favor of an unconditional humanistic abolitionism.

Soering nonetheless was the chief European source that U.S. Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg cited in their landmark 2015 dissent urging another test case to abolish capital punishment. 404 Breyer and Ginsburg made no reference to human rights or dignity in their lengthy opinion, even when indicating that Europe no longer executes anyone. 405 Despite listing every conceivable practical objection to the death penalty, they never suggest that executions are intrinsically cruel or inhumane. 406 Republished as a book, 407 the dissent was effectively a manifesto of modern American abolitionism.

In 2020, Breyer and Ginsburg reiterated their position as they dissented against the federal government’s first execution in seventeen years. Their stance again focused solely on problems surrounding the death penalty’s implementation. 408

“A broken system” has become the quintessential American abolitionist argument. It is exclusively practical: the term “broken” implies that the death penalty “does not work.” Popularized by studies documenting the colossal reversible error rate in U.S. capital cases, 409 the phrase is ubiquitous nowadays. 410 It signifies that the system is rife with due process violations, abysmal court-appointed lawyers, exonerations of innocents, endemic racial and class bias, and exorbitant financial costs. Evidence of these problems is damning, prompting numerous U.S. experts to disavow capital punishment. 411

Yet, in terms of rhetoric, the “broken system” paradigm may prove too much by conceding two points. First, the death penalty’s inhumanity, cruelty or immorality is irrelevant. This may be the case for empiricists who assess reversal data and other quantitative matters. But the modern abolitionist movement generally concedes this point, too. In fact, the “broken system” expression suggests that killing prisoners would be appropriate if the system were not broken. Second, the expression implies that the death penalty worked well before being “broken.” If so, why would it be categorically irreparable? The death penalty has actually never been proven to be a deterrent, has always risked executing innocents, and has always applied arbitrarily, discriminatorily or disproportionately to vulnerable groups. Miscarriages of justice were not born with modernity. 412 By the standards that U.S. abolitionists stress today, the death penalty has never “worked” in America or Europe. It is therefore not “broken.”

Whether practical or humanistic claims are more effective in winning abolition is beyond this Article’s scope. We have instead examined processes of convergence and divergence in abolitionism since the Enlightenment. If history is a guide, it suggests that American abolitionists can employ a rhetoric encompassing both categories of arguments, which are not inherently incompatible.

To borrow Montaigne’s words, “a general duty of humanity” 413 emerged in the Renaissance before progressing in the Enlightenment and onward. Following in Beccaria’s footsteps, generations of abolitionists in Europe and America repeatedly denounced the cruelty of capital punishment in reasoning analogous to modern conceptions of human rights and dignity. This evidence bolsters Durkheim’s theory that an expanding norm of “human dignity,” tied to the development  of liberal democracy, gradually mildened punishments. 414

This Article has documented how the “moral” or “political” objection to executions, which is at the heart of human rights abolitionism nowadays, 415 can be found in the positions of generations of abolitionists in both Europe and America. The overwhelming focus on administrative, procedural, and utilitarian objections to capital punishment in modern America has obscured how past U.S. abolitionists commonly employed a humanistic rhetoric, just like their European counterparts. History cautions against cultural essentialism assuming that such sensibilities are foreign to America. It was in modern times that a harsher America began focusing overwhelmingly on practical questions, whereas human rights became the official ground for abolition in Europe.

Institutional factors may also have shaped divergent abolitionisms. Supreme Court litigation appears the only foreseeable avenue for abolition in America, as the peculiarities of its federal system currently preclude nationwide legislative abolition. 416 Because European governments are far less decentralized, they have not faced this obstacle. Legislative debate may be more conducive to normative or polyvalent arguments than litigation. After all, precedents restrict the claims abolitionists may present in court; and the post- Furman jurisprudence has oriented them toward procedural ones. Elsewhere in the West it was mainly parliaments that passed abolition 417 in fora potentially more amenable to humanistic discourse. 418

However, one should not overstate this difference. America has twenty-three states without the death penalty and in most of them it was legislators who passed abolition. 419 And, unlike in past times, humanistic arguments carry limited weight in state legislative debates nowadays. 420 Naturally, this trend may change someday, such as if more abolitionists match the stance of Gavin Newsom, the Governor of California, who partly defended his 2019 moratorium on capital punishment on this ground: “[T]he intentional killing of another person is wrong and, as Governor, I will not oversee the execution of any individual.” 421 So far this humanistic position remains atypical of how twenty-first-century American politicians, judges, journalists, and abolitionist groups approach capital punishment. 422

As modern America debates penal reform, humanistic principles have perhaps made the most headway in juvenile justice. 423 The Supreme Court notably referred to international human rights standards when abolishing the juvenile death penalty 424 and restricting the scope of life without parole for juveniles. 425 It is too early to tell whether these developments herald a genuine development of human rights, as this jurisprudence could be interpreted as creating a rigid age carve-out for constitutional protections. By contrast, dignity is a universal norm that cannot be forfeited by entering adulthood. 426 Dignity has thus significantly contributed to Europe’s abolition of both capital punishment and life without parole 427 for everyone, not merely minors. The vigorous backlash against the Supreme Court’s few references to international human rights standards in capital cases has hindered the efforts of Americans amenable to this path. 428

The United States’ persistent racial divide might remain another impediment to abolition. American reformers have long fought on several fronts with, on one hand, the abolition of capital punishment, and, on the other, challenging systemic racism. These efforts have been intertwined to an extent given the death penalty’s racist history. 429 Although capital punishment in Europe served to repress the downtrodden poor, as Victor Hugo and fellow reformers insisted, 430 an American-style racial caste system did not exist throughout Europe. This dual struggle has created formidable obstacles for American abolitionists. 431 Nevertheless, the rhetoric of Frederick Douglass, Sojourner Truth, Martin Luther King, and Thurgood Marshall suggests that past generations of American abolitionists managed to conciliate a defense of universal humanistic principles and racial equality. 432

Today, European authorities have added their voices to the generations of abolitionists who have urged the end of capital punishment in the United States. Europeans do not only refuse to facilitate executions by extraditing detainees. 433 Following a campaign by Reprieve, a British human rights group, Europe barred the export of drugs used for lethal injection in America. 434 This helped precipitate the U.S. Supreme Court case in which Justices Breyer and Ginsburg issued their call for abolition. 435 In fact, Europe aspires to spearhead global abolition. While such an international legal and diplomatic campaign appears unprecedented, 436 its moral foundation evokes the positions of abolitionists on both sides of the Atlantic since the Enlightenment, in the image of the petition that Henry David Thoreau and his peers signed in 1849: “[An execution is] a crime in which we would under no circumstances participate, which we would prevent if possible and in the guilt of which we will not by the seeming assent of silence, suffer ourselves to be implicated.” 437

I am grateful to Glen M. Johnson, Joshua Kleinfeld, Frédéric Mégret, Sherod Thaxton, Franklin Zimring, and the anonymous peer reviewers for their helpful suggestions on this project.

Abolitionist and Retentionist Countries as of July 2018 , Amnesty Int’l (Oct. 23, 2018), www.amnesty.org/download/Documents/ACT5066652017ENGLISH.pdf .

Glossip v. Gross, 576 U.S. 863, 908–48 (2015) (Breyer, J., dissenting). See also Barr v. Lee, No. 20A8, slip. op. at 2 (U.S. July 14, 2020) (per curiam) (Breyer, J., dissenting) (reiterating this position in case concerning the federal death penalty’s resumption following a seventeen-year hiatus).

Stephen Breyer, Against the Death Penalty (John Bessler ed., 2016).

See infra note 409 and accompanying text.

See, e.g. , Council of Europe & European Union, Press Release, Joint Declaration by the EU High Representative for Foreign Affairs and Security Policy and the Secretary General of the Council of Europe on the European and World Day Against the Death Penalty (Oct. 9, 2018), www.consilium.europa.eu/en/press/press-releases/2018/10/09/joint-declaration-by-the-eu-high-representative-for-foreign-affairs-and-security-policy-and-the-secretary-general-of-the-council-of-europe-on-the-european-and-world-day-against-the-death-penalty [hereinafter Joint Declaration on the Death Penalty].

See generally Al-Saadoon v. United Kingdom, 2010-II Eur. Ct. H.R. 61,  ¶¶ 115–23 (2010) (holding that capital punishment inherently violates the European Convention on Human Rights). Regarding this case, see infra note 402 and accompanying text.

See, e.g. , Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993); Bryan Stevenson, Just Mercy: A Story of Justice and Redemption 290 (2014); Editorial, Every Execution Is Inhumane , L.A. Times , Mar. 16, 2018, at 12; The Case Against the Death Penalty , Am. Civ. Liberties Union , www.aclu.org/other/case-against-death-penalty (last visited July 22, 2020) (“[T]he state should not give itself the right to kill human beings . . . .”).

See Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment 248 (2016) (discussing “the failure of a human rights approach to capital punishment” in America); About the Death Penalty , Nat’l Coalition to Abolish the Death Penalty, www.ncadp.org/pages/about (last visited July 25, 2020) (presenting exclusively practical rationales for abolition).

Carol S. Steiker & Jordan M. Steiker, No More Tinkering: The American Law Institute and the Death Penalty Provisions of the Model Penal Code , 89 Tex. L. Rev . 353, 364–65 (2010) (noting the relative social success of consequentialist objections to capital punishment). See also Sarah Beth Kaufman, American Roulette: The Social Logic of Death Penalty Sentencing Trials 72 (2020) (describing how elite anti-death-penalty lawyers fundamentally oppose executions but must operate within the field’s constraints).

Brandon L. Garrett, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice (2017); Death Penalty Info. Ctr., The Death Penalty in 2019 (2019).

Amnesty Int’l, Death Sentences and Executions 2018, at 4–5 (2019), www.amnesty.org/download/Documents/ACT5098702019ENGLISH.PDF .

Parts of the Article build on Mugambi Jouet, Les droits de l’homme en France et aux États-Unis: La dialectique des convergences et des divergences (June 19, 2019) (unpublished Ph.D. dissertation, Université Paris 1 Panthéon-Sorbonne) (on file with author).

See generally David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010).

While the United States had the world’s highest incarceration rate for years, it recently dropped from first place following a relative decline in its prison population. El Salvador, Rwanda, Turkmenistan, and Cuba now have higher incarceration rates than the United States, whose rate remains extremely high by international standards. See Prison Population Rate , World Prison Brief, www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All (last visited Feb. 20, 2023).

See infra Part V.

Mugambi Jouet , Exceptional America: What Divides Americans from the World and from Each Other 20–26 (2017) ( discussing the history of “American exceptionalism” as a concept). Western democracies are commonly understood to encompass the United States, Canada, Australia, New Zealand, and European nations, except for Russia and states aligned with Russia. That being noted, the “West” is a political construct, not a geographic one. The intricate history of the Western world, including its malleable definition and boundaries, is outside this Article’s scope. See generally Uses of the West (Gunther Hellmann & Benjamin Herborth eds., 2017); Germany and “The West”: The History of a Modern Concept (Riccardo Bavaj & Martina Steber eds., 2015).

See generally Jouet , supra note 16, ch. 7.

See infra Part III.

See Susan Dunn, Sister Revolutions: French Lightning, American Light (1999).

See infra Part IV.

Samuel Moyn, The Last Utopia: Human Rights in History (2010).

Franklin E. Zimring, The Contradictions of American Capital Punishment 24–31 (2003).

See infra Part I.

Cesare Beccaria, On Crimes and Punishments 48–52 (David Young trans., Hackett 1986).

See infra Part II.

Mugambi Jouet, Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence , 109 J. Crim. L. & Criminology 703, 750–65 (2019).

Émile Durkheim, Deux lois de l’évolution pénale , 4 Année sociologique 65 (1900).

Id. at 65, 74–77, 87, 91–95.

See generally Paul Cassia, Dignité(s) 30–33, 39–51, 55–56 (2016); George Kateb, Human Dignity ix (2011); Xavier Bioy, Le concept de dignité , in La dignité saisie par les juges en Europe 13, 23–34 (Laurence Burgorgue-Larsen ed., 2010).

Victor Hugo, Loi sur les prisons (Speech at National Assembly, May 4, 1847), reprinted in Œuvres politiques complètes: Œuvres diverses 143, 143–44 (Jean-Jacques Pauvert ed., 1964). See infra note 308 and accompanying text.

Steiker & Steiker, supra note 8, at 74–77.

See infra note 416 and accompanying text.

See infra note 429 and accompanying text.

See, e.g. , Zimring , supra note 22, at 46–47 (contrasting claims of Amnesty International branches in America and Europe).

Id. at 25–27, 30–32, 40–41.

Id. at 25. See also id. at 17, 27, 29, 49.

See generally id. at 25, 32, 40. See also Andrew Hammel, Ending the Death Penalty: The European Experience in Global Perspective 10, 14, 202, 206 (2010) (arguing that capital punishment in America and Europe diverged from the 1960s to the 1980s, following centuries of convergence).

Zimring , supra note 22, at 19–20, 30–31, 33.

Id. at 29–31.

Id. at 17, 25–37.

Id. at 42–45, 183.

For instance, Zimring refers to “the failure to engage state execution as a human rights problem in the 1950s and 1960s in places such as Britain and France,” id. at 32, “[t]he rhetorical transformation in Europe that started in the late 1970s,”  “[t]he broader concerns that emerged in the 1980s,” id. at 40.

Id. at 17. See also id. at 25, 34.

Moyn , supra note 21, at 1–3, 118–19, 120–21, 129, 215–16.

Id. at 7. See also id. at 47, 82.

Moyn , supra note 21, at 7, 13–14, 21–23.

Id. at 12, 23–29.

Id. at 214.

Id. at 118, 129, 155.

See, e.g. , Justine Lacroix & Jean-Yves Pranchère, Human Rights on Trial 3, 5, 9, 14–18, 20, 246 (Gabrielle Maas trans., Cambridge Univ. Press 2018); Philip Alston, Does the Past Matter? On the Origins of Human Rights , 126 Harv. L. Rev . 2043, 2049, 2051, 2065–70 (2013) (reviewing Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights Law (2012)); Jenny S. Martinez, Human Rights and History , 126 Harv. L. Rev. F. 221 , 232–40 (2013).

Zimring , supra note 22, at 46.

Id. at 46–48. Accord Steiker & Steiker, supra note 9, at 364–65.

See infra Parts II, III, and IV.

Carol S. Steiker & Jordan M. Steiker, Cost and Capital Punishment: A New Consideration Transforms an Old Debate , 2010 U. Chi. Legal F. 117, 151–55 (2010).

Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).

Stuart Banner, The Death Penalty: An American History 282 (2002); Steiker & Steiker, supra note 8, at 71–77.

Human rights can have other components, which Zimring persuasively identifies, such as universalistic aspirations behind European campaigns for global abolition. Zimring , supra note 22, at 26–41. Yet abolitionists can believe that executions violate human rights in their country without pursuing an international campaign.

Joint Declaration on the Death Penalty, supra note 5.

See Lacroix & Pranchère , supra note 56, at 246 (Moyn’s “staunch rejection of essentialised ideas paradoxically leads him to essentialise human rights in relation to their original context—that of nation-state construction”). Accord Alston, supra note 56, at 2069.

Jean-Yves Le Naour, Histoire de l’abolition de la peine de mort 42–43 (2011).

This Article’s dates concern abolition for ordinary, non-war crimes. Abolitionist and Retentionist Countries as of July 2018 , supra note 1.

See id. ; Le Naour, supra note 70, at 285, 351. Great Britain passed abolition in 1969, after enacting a temporary, five-year abolition in 1965. Hammel , supra note 38, at 110–13; Zimring , supra note 22, at 21.

Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, Apr. 28, 1983, E.T.S. No. 114 [hereinafter Protocol No. 6 to European Convention on Human Rights] (ratified by all member states except Russia); Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty in All Circumstances, May 3, 2002, E.T.S. No. 183 [hereinafter Protocol No. 13 to European Convention on Human Rights] (ratified by all member states except Armenia, Azerbaijan, and Russia).

Zimring , supra note 22, at 35–37.

See Lacroix & Pranchère , supra note 56, at 20 (“Moyn’s concern with avoiding anachronism . . . leads him to dismiss out of hand lineages of ideas that are not merely semantic.”); Martinez, supra note 56, at 237 (“[I]deas do not come out of nowhere. . . . It would not have been possible for human rights to emerge as a global discourse in the 1970s if the language, ideas, laws, and organizing tools that served as the building blocks of the movement had not already been in existence in some form.”).

Zimring , supra note 22, at 41.

See Joshua Kleinfeld, Two Cultures of Punishment , 68 Stan. L. Rev . 933, 942, 984–96 (2016).

David Garland, Capital Punishment and American Culture , 7 Punishment & Soc’y 347, 355 (2005).

Le Naour, supra note 70, at 16, 18–22, 138.

Durkheim, supra note 27, at 89 (translated by author).

See supra note 27 and accompanying text.

Beccaria, supra note 24, at 51.

Id. at 48–51.

Id. at 50–51.

James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe 50–52 (2003).

Beccaria, supra note 24, at 6.

Thomas More, Utopia 85 (George M. Logan ed., Robert M. Adams trans., Cambridge Univ. Press 3d ed. 2016).

Id. at 15. See also id. at 21–22 (discussing capital punishment for theft and murder); Le Naour, supra note 70, at 20 (mentioning Utopia in context of death penalty history).

This interpretive difficulty partly stems from More’s use of distinct voices and an occasionally satirical, humorous style. See George M. Logan, The Meaning of More’s Utopia 3–18, 114–22, 130 (2014); George M. Logan, The Argument of Utopia, in Interpreting Thomas More’s Utopia 7, 7–8 (John C. Olin ed., 1989); Wolfgang E.H. Rudat, Thomas More and Hythloday: Some Speculations on Utopia, 43 Bibliothèque d’humanisme et Renaissance 123, 124 (1981).

Logan, supra note 94, at 10–13. But see Susan Bruce, Introduction to Three Early Modern Utopias, at ix, xxii–xxiv, xxvi (Susan Bruce ed., 2009) (noting ambiguities in Utopia ’s discussion of capital punishment, as the text features contradictions and satirical elements).

Logan, supra note 94, at 56–60. Cf. Peter Gordon Stillman, Justice, Crime, and Punishment in More’s Utopia, in En Utopía: 500 años 367, 369–71 (Pablo Guerra ed., 2016) (discussing the “sociological” dimensions of Utopia ’s treatment of crime).

Bruce, supra note 95, at xxv. According to a leading biography, More deemed heretics “enemies of God, servants of Satan” who “should be exterminated.” Richard Marius, Thomas More: A Biography 406 (1999). See also Lawrence Wilde, Thomas More’s Utopia: Arguing for Social Justice 9–10, 26, 116–17 (2016) (acknowledging More’s participation in and support for the execution of heretics, yet contesting the veracity of certain allegations of persecution).

Logan, supra note 94, at 13–14, 17–18, 20.

Montaigne, The Complete Essays 992 (Donald M. Frame trans., Stanford Univ. Press 1965).

Id. Michel de L’Hospital (c. 1507–1573), a contemporary of Montaigne, likewise expressed moral reservations about capital punishment’s wide scope. Le Naour, supra note 70, at 21.

See, e.g. , Al-Saadoon v. United Kingdom, 2010-II Eur. Ct. H.R. 61, ¶ 122 (2010) (because the prohibition on “inhuman or degrading treatment or punishment is absolute . . . the nature of any offence allegedly committed by the [prisoner] is therefore irrelevant.”).

Montaigne, supra note 100, at 854. See also Jordi Bayod, Montaigne et la peine de mort: Entre la compassion et la prudence , 62 CORPUS 305, 311–13 (2012) (discussing utilitarian facets of Montaigne’s views).

Montaigne, supra note 100, at 381.

Bayod, supra note 103, at 314.

Montaigne, supra note 100, at 57–59.

Bayod, supra note 103, at 307–10.

Montaigne, supra note 100, at 380.

Id. at 379.

Id. at 381. See also id. at 382–83 (describing public executions).

Erasmus, The Education of a Christian Prince 82 (Lisa Jardine ed., Neil M. Cheshire & Michael J. Heath trans., Cambridge Univ. Press 1997).

See generally Le Naour, supra note 70, at 20–24, 33–35.

Sorciers et sorcières (Histoire ancienne—Histoire moderne) , in 15 Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers 369, 370 (Denis Diderot & Jean le Rond D’Alembert eds., Neufchâtel, Faulche & compagnie 1765), http://enccre.academie-sciences.fr/encyclopedie/article/v15-1166-0 (emphasis omitted) (translated by author).

Chevalier Louis de Jaucourt, Loi criminelle , in 9 Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers 657, 657–58 (Denis Diderot & Jean le Rond D’Alembert eds., Neufchâtel, Faulche & compagnie 1765), http://enccre.academie-sciences.fr/encyclopedie/article/v9-1848-56 (emphasis omitted) (translated by author). Accord Chevalier Louis de Jaucourt, Peine , in 12 Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers 246 (Denis Diderot & Jean le Rond D’Alembert eds., Neufchâtel, Faulche & compagnie 1765), http://enccre.academie-sciences.fr/encyclopedie/article/v12-486-1 .

Châtiment , in 3 Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers 249, 249 (Denis Diderot & Jean le Rond D’Alembert eds., Paris, Briasson et al. 1753), http://enccre.academie-sciences.fr/encyclopedie/article/v3-406-0 (translated by author).

Luigi Delia, La peine de mort dans L’Encyclopédie et ses Suppléments, 35 Revue française d’histoire des idées politiques 93, 98–100 (2012).

Loi du talion , in 9 Encyclopédie, supra note 116, at 676, 677, http://enccre.academie-sciences.fr/encyclopedie/article/v9-1848-187 (translated by author).

Supplice , in 15 Encyclopédie, supra note 115, at 682, http://enccre.academie-sciences.fr/encyclopedie/article/v15-2262-0 (translated by author).

Delia, supra note 118, at 100–03.

Assassinat , in 1 Supplément à L’Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers 653, 653–54 (Jean-Baptiste Robinet ed., Amsterdam, Rey 1776), https://gallica.bnf.fr/ark:/12148/bpt6k50550x/f661.image (translated by author).

See Zimring , supra note 22, at 28–29.

Assassinat , supra note 122, at 654.

Delia, supra note 118, at 100–01.

Le Naour, supra note 70, at 25, 31–32.

Denis Diderot, Notes sur le Traité des délits et des peines, in 4 Œuvres complètes de Diderot: Revues sur les éditions originales 63, 67 (Jules Assézat ed., Paris, Garnier frères 1875) (translated by author).

Id. at 67; Le Naour, supra note 70, at 25, 31.

Le Naour, supra note 70, at 23–24.

Jean-Jacques Rousseau, On the Social Contract, in The Social Contract and Other Later Political Writings 39, 64 (Victor Gourevitch trans. & ed., Cambridge Univ. Press 2003).

Beccaria, supra note 24, at 48.

Rousseau, supra note 131, at 65.

M ontesquieu, The Spirit of the Laws 225 (Thomas Nugent & J.V. Prichard trans., Appleton 1900); Chevalier Louis de Jaucourt, Crime (Droit naturel) , in 4 Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers 466, 467 (Denis Diderot & Jean le Rond D’Alembert eds., Paris, Briasson et al. 1754), http://enccre.academie-sciences.fr/encyclopedie/article/v4-1117-1 .

See, e.g. , Beccaria, supra note 24, at 6, 8.

Montesquieu, supra note 134, at 99.

Id. at 109.

Id. at 110.

Id. at 114.

Id. at 111–12.

Id. at 102.

Id. at 102–03.

Voltaire, Commentary on the Book On Crimes and Punishments , by a Provincial Lawyer (1766), in On Crimes and Punishments and Other Writings 113, 113 (Aaron Thomas ed., Aaron Thomas & Jeremy Parzen trans., Univ. of Toronto Press 2008).

Id. at 122.

Id. at 114, 131–32, 140.

Id. at 121.

Id. at 130, 146–50; Voltaire, Prix de la justice et de l’humanité 101–02 (Bern, Ferney 1778).

Beccaria, supra note 24, at 50–51.

Voltaire, Commentary [of] On Crimes and Punishments , supra note 144, at 213–14; Voltaire, supra note 150, at 13, 17–18.

Voltaire, Commentary [of] On Crimes and Punishments , supra note 144, at 140.

Id. at 129.

Id. at 131–32; Voltaire, supra note 150, at 103–05, 110–12. Voltaire’s abolition of torture differed from the modern notion of an inalienable human right in supporting an exception: the torture of Ravaillac, who assassinated Henry IV in 1610, so that Ravaillac may reveal any accomplices. Voltaire, supra note 150, at 105–06.

Voltaire, Commentary [of] On Crimes and Punishments , supra note 144, at 129.

Voltaire, supra note 150, at 2. On Voltaire’s prize and praise of Beccaria, see Le Naour, supra note 70, at 36–37.

Voltaire, supra note 150, at 2 (translation by author).

Id. at 16–17.

Id. at 118–19.

Id. at 119.

Delia, supra note 118, at 101–03.

See infra note 178.

See infra note 287.

Le Naour, supra note 70, at 42–43 (quoting Édouard Ducpétiaux, De la peine de mort 345–46 (1827)) (translated by author). Accord John D. Bessler, Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment 39, 46 (2012).

Bessler, supra note 167, at 46.

Id. ; Le Naour, supra note 70, at 138.

Abolitionist and Retentionist Countries as of July 2018 , supra note 1.

Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).

See supra Part I.

Caroline Winter, American Enlightenments 12 (2016). See also Henry F. May, The Enlightenment in America (1976); Robert A. Ferguson, The American Enlightenment: 1750–1820 (1997).

Kleinfeld, supra note 77, at 936.

Ashley T. Rubin, Prison History , in Oxford Research Encyclopedia of Criminology 1, 6–7 (Henry N. Pontell ed., 2018).

Banner , supra note 63, at 88 (emphasis in original).

Id. at 91–94; Bessler, supra note 167, ch. 2; May, supra note 174, at 118.

Banner , supra note 63, at 88.

Id. (quoting Letters of Benjamin Rush 628 (Lyman H. Butterfield ed., 1951)).

See supra note 95 and accompanying text.

Banner , supra note 63, at 102–11.

Id. at 94–98.

Id. at 94–95, 98.

Id. at 106, 126–27.

Le Naour, supra note 70, at 40, 91.

Banner , supra note 63, at 91, 97; John F. Galliher et al., America Without the Death Penalty: States Leading the Way 36 (2002).

Banner , supra note 63, at 99.

The law entered into force on March 1, 1847 after being voted in 1846. Eugene G. Wanger, Historical Reflections on Michigan’s Abolition of the Death Penalty , 13 T .M. Cooley L. Rev . 755, 765 n.59 (1996).

Galliher et al., supra note 187, at 11.

Id. at 15 (quoting Mi. Legislature, House Majority Report of the Select Committee on Abolishment of Capital Punishment 2 (1844)).

Sojourner Truth, Lecture in Lansing, Mi., June 3, 1881 , in Sojourner Truth as Orator 135, 135 (Suzanne Pullon Fitch & Roseann Mandziuk eds., 1997).

Wanger, supra note 189, at 769 (quoting Andrew J. Palm, The Death Penalty 149–50 (New York, G.P. Putnam’s Sons 1891)).

Wisconsin technically preceded Michigan in abolition for all crimes, as Michigan retained it for treason, although this exception has never applied. Galliher et al., supra note 187, at 11, 31.

Id. at 32 (quoting Carrie Cropley, The Case of John McCaffary , 35 Wis. Mag. Hist. 281, 288 (1951)).

Id. at 34–36.

Id. at 54–55.

Id. at 57 (quoting Me. Legislature, Report of the Committee on Capital Punishment (1836)).

For additional normative arguments against capital punishment in Michigan, see Galliher et al., supra note 187, at 19, 28; in Wisconsin, see id. at 34–35; and in Maine, see id. at 71, 73, 75.

Jane Bennett, Whitman’s Sympathies , 69 Pol. Res. Q. 607, 607 (2016).

Paul Christian Jones, Against the Gallows: Antebellum American Writers and the Movement to Abolish Capital Punishment 27 (2011).

Ralph Waldo Emerson, Progress of Culture , July 1867, in 8 Collected Works of Ralph Waldo Emerson: Letters and Social Aims 108, 109 (Joel Myerson ed., 2010).

Ralph Waldo Emerson, Politics (1844), in 3 Collected Works of Ralph Waldo Emerson: Essays, Second Series 117, 122–23 (Alfred R. Ferguson, Jean Ferguson Carr & Joseph Slater eds., 1983).

Jones, supra note 202, at 27–28.

Henry David Thoreau, A Plea for Captain John Brown , Oct. 30, 1859, in 4 The Writings of Henry David Thoreau 409 (Boston, Houghton Mifflin 1906).

Ruth Robinson Wheeler, Thoreau and Capital Punishment , 86 Thoreau Soc’y Bull. 1, 1 (1964).

Walter Harding, The Days of Henry David Thoreau 314 (2013).

In this journal entry, Thoreau compared the gallows to “the murderous Lincoln Bridge,” where callousness precipitated numerous fatal accidents. Henry David Thoreau, Journal, Dec. 10, 1856, in 15 The Writings of Henry David Thoreau 174, 175–76 (Bradford Torrey ed., 1906).

Frederick Douglass, Resolutions Proposed for Anti-capital Punishment Meeting , Rochester, N.Y., Oct. 7, 1858, in Frederick Douglass: Selected Speeches and Writings 369, 371 (Philip S. Foner & Yuval Taylor eds., 2000).

John Cyril Barton, Literary Executions: Capital Punishment and American Culture , 1820–1925, at 14–17, 182 (2014). Cf. Banner , supra note 63, at 113, 136–37, 142–43.

Richard Hofstadter, The American Political Tradition 184 (1989) ; Dean Grodzins, Wendell Phillips, the Rule of Law, and Antislavery Violence , in Wendell Phillips, Social Justice, and the Power of the Past 89, 91, 94 (A.J. Aiséirithe & Donald Yacovone eds., 2016).

Barton, supra note 213, at 14–17, 182, 203, 206.

Wendell Phillips Letter to William Lloyd Garrison, June 27, 1846, reprinted in Liberator , July 3, 1846, at 107.

Barton, supra note 213, at 63, 83–95.

Lydia Maria Child , Letter XXXI , Nov. 19, 1842, in Letters from New York 207, 207–11 (New York, Charles S. Francis 1848).

Id. at 209.

Id. at 210.

Id. at 215.

Barton, supra note 213, at 18–19.

Douglass, supra note 211, at 369.

Ida Husted Harper, The Life and Work of Susan B. Anthony 164–65 (Indianapolis & Kansas City, Bowen-Merrill 1899). See also id. at 309 (noting Anthony’s support for abolition).

Barton, supra note 213, at 18 (quoting Letter from Elizabeth Cady Stanton to Marvin H. Bovee, Aug. 1, 1868, in Marvin H. Bovee, Christ and the Gallows; or, Reasons for the Abolition of Capital Punishment 173, 175 (1869)).

Id. at 26. See also id. at 6–7, 260.

Id. at 2 (quoting Humanity, Observations on the Curiosity of Those Who Go to Witness Public Executions , in The Record of Crimes in the United States, at v, xi (1834)). Other aspects of Humanity’s reasoning are dated, such as the emphasis on phrenology. Id. at 1.

Barton, supra note 213, at 1.

Id. at 49, 138–42, 152, 164–65, 172. Herman Melville shared reservations toward capital punishment—a recurrent theme in his writing—but did not explicitly oppose it. Id. at 176, 185–86, 193, 211–12, 219.

Id. at 56, 63, 98, 131, 171, 207, 265.

Id. at 32 (quoting John Neal, Wandering Recollections of a Somewhat Busy Life: An Autobiography 390 (1869)).

Jerome Loving, Walt Whitman: The Song of Himself 93–95 (2000).

Bennett, supra note 201, at 609–10.

Id. at 610 (quoting Walt Whitman, Our Answer to a Reasonable Question , Mar. 24, 1846, in 1 Gathering of the Forces 104, 107 (Cleveland Rogers & John Black eds., 1920)).

Durkheim, supra note 27, at 88.

Walt Whitman, Hurrah for Choking Human Lives! , June 24, 1846, in 1 Gathering of the Forces, supra note 236, at 107–08.

Barton, supra note 213, at 6, 51–54.

Id. at 2, 6, 13.

Id. at 35–36 (quoting Benjamin Rush, Considerations on the Injustice and Impolicy of Punishing Murder by Death 18–19 (1792)).

Barton, supra note 213, at 10.

Banner , supra note 63, at 119–21.

See, e.g. , id. at 106, 124–25. The same could be said about the relative familiarity of early twentieth-century debates. See, e.g. , Capital Punishment (Letters to the Editor), The Survey , Apr. 1914, at 353.

See Kaufman, supra note 9, passim .

See, e.g. , Banner , supra note 63, at 116–18; Barton, supra note 213, at 10.

Jouet , supra note 16, at 214–17 (examining religious attitudes toward punishment).

Barton, supra note 213, at 249–53.

Debate: Resolved: That Capital Punishment Is a Wise Public Policy, Clarence Darrow, Negative, v. Judge Alfred J. Talley, Positive, League for Pub. Discussion 39 (1924).

Id. at 62. See also Barton, supra note 213, at 234 (discussing Darrow’s debate).

See also Kleinfeld, supra note 77, at 986 (“[T]he only kind of argument to have about capital punishment is a normative one.”); Robert Weisberg, Deregulating Death , 1983 Sup. Ct. Rev. 305, 308 (1983) (“[A] judge or jury’s decision to kill is an intensely moral, subjective matter.”).

Editorials , The Survey , Apr. 1926, at 39–40.

Richard Wright, Native Son 280 (Harper Perennial Classics 2005) (1940).

Advice for Living , Ebony (Nov. 1957), available at Martin Luther King, Jr. Papers Project , http://okra.stanford.edu/transcription/document_images/Vol04Scans/305_Nov-1957_Advice%20for%20Living.pdf .

Martin Luther King, Jr., Statement at the Prayer Pilgrimage Protesting the Electrocution of Jeremiah Reeves, Montgomery, Ala. (Apr. 6, 1958), available at Martin Luther King, Jr. Papers Project, http://okra.stanford.edu/transcription/document_images/Vol04Scans/396_6-Apr-1958_Statement%20Delivered%20-%20Jeremiah%20Reeves.pdf .

John F. Galliher et al., Abolition and Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century , 83 J. Crim. L. & Criminology 538, 541, 558–59 (1992).

U .S. Dep’t Just ., Historical Corrections Statistics in the United States, 1850–1984, at 13 (1986).

Banner , supra note 63, at 230.

Id. at 240.

Democratic Party Platform (July 10, 1972), www.presidency.ucsb.edu/documents/1972-democratic-party-platform .

California v. Anderson, 493 P.2d 880, 896 (Cal. 1972). A few months later voters overturned Anderson in a state ballot proposition. Evan J. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America 254–55 (2014).

Mandery, supra note 267, at 41–44.

Id. at 166.

Mugambi Jouet, A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment , 49 Am. J. Crim. L. 119 (2022).

Aikens v. California, 403 U.S. 952 (1971), cert. dismissed , 406 U.S. 813 (1972) (per curiam).

Jouet, supra note 271, at 126–27, 134–35.

Brief for Petitioner, Aikens v. California, 406 U.S. 813 (1972) (No. 68-5027), 1971 WL 134168, at 31 (emphasis added).

Id. at 15, 18 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)).

Garland, supra note 13, at 229; Garrett, supra note 10, at 81; Steiker & Steiker, supra note 8, at 50; Franklin E. Zimring & Gordon Hawkins, Capital Punishment and the American Agenda 37–38 (1986).

Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion).

See generally Dunn , supra note 19; Denis Lacorne, L’Invention de la république (1991).

See Abolitionist and Retentionist Countries as of July 2018 , supra note 1.

See infra note 374 and accompanying text.

See infra notes 393, 394 and accompanying text.

W.B. Carnochan, The Literature of Confinement , in Oxford History of the Prison 381, 387 (Norval Morris & David J. Rothman eds., 1995).

Dunn , supra note 19, at 92; Le Naour, supra note 70, at 60; Jennifer Heuer, Did Everything Change? Rethinking Revolutionary Legacies , in Oxford Handbook of the French Revolution 626, 635 (David Andress ed., 2015).

See supra note 178.

Cécile Barberger, Droit pénal 5 (1997); Le Naour, supra note 70, at 22–39, 42–43, 53; Marcel Morabito, Histoire constitutionnelle de la France, de 1789 à nos jours 63 (2016) ; Mireille Delmas-Marty, La jurisprudence du Conseil constitutionnel et les principes fondamentaux du droit pénal proclamés par la Déclaration de 1789 , in La Déclaration des droits de l’homme et la jurisprudence 151, 152, 163 (1989). For a translation of the Déclaration des droits de l’homme et du citoyen , see Declaration of the Rights of Man and the Citizen , Aug. 26, 1789, in The French Revolution and Human Rights: A Brief History with Documents 74 (Lynn Hunt ed. & trans., 2d ed. 2016).

Le Naour, supra note 70, at 48–49.

Id. at 47, 53. See also Déclaration des droits de l’homme et du citoyen art. VIII (1789) (Fr.) (“The Law must only establish strictly and evidently necessary punishments . . . .”) (translated by author).

Luc Heuschling, La dignité de l’être humain dans la jurisprudence constitutionnelle allemande , in La Dignité saisie par les juges en Europe , supra note 30, at 115, 119–20 (quoting Adrien Duport, Principes fondamentaux de la police et de la justice, présentés au nom du Comité de la Constitution, Dec. 22, 1789, 10 Archives parlementaires, 1st ser., at 744 (1878)) (translated by author).

Le Naour, supra note 70, at 53–55. On capital punishment and the revolution, see also Hammel , supra note 38, at 118–20; Jean Bloch-Michel, La peine de mort en France , in Albert Camus & Arthur Koestler, Réflexions sur la peine capitale 199, 209–18 (Folio 2002).

Le Naour, supra note 70, at 36, 50–52, 63–64; Bloch-Michel, supra note 291, at 211–13.

Le Naour, supra note 70, at 60–61 (quoting Le Moniteur universel 648 (Dec. 3, 1792)) (translated by author).

Id. at 63–64 (quoting Elizabeth Badinter & Robert Badinter, Condorcet 211 (1988)) (translated by author).

Id. at 69–77.

See generally Le Naour, supra note 70, at 77–83, 94–110.

Bloch-Michel, supra note 291, at 218, 223.

Le Naour, supra note 70, at 96.

Id. at 111–14.

Dunn , supra note 19, at 4–5, 13–17.

Marquis de Lafayette , Pour l’abolition de la peine de mort , Aug. 17, 1830, in 6 Mémoires, correspondances et manuscrits du Général Lafayette publiés par sa famille 426, 426–27 (Paris, Fournier Ainé 1838) (translated by author). See also Dunn , supra note 19, at 15; Le Naour, supra note 70, at 102.

Le Naour, supra note 70, at 118 (quoting J. Cyprien Roumieu, Plus d’échafauds! ou de l’abolition immédiate et absolue de la peine de mort 264 (1833)) (translated by author).

Victor Hugo, The Last Day of a Condemned Man (Arabella Ward trans., Dover 2009). See also Hammel , supra note 38, at 124–29 (arguing that Hugo’s deontological, categorical approach to abolitionism foreshadowed the modern human rights standard).

See supra Part III.

Victor Hugo , in 3 Dictionnaire des parlementaires français 364 (Adolphe Robert, Edgar Bourloton & Gaston Cougny eds., Paris, Bourloton 1891).

Le Naour, supra note 70, at 128–29.

Hugo, supra note 31, at 143–44 (translated by author).

See supra note 29 and accompanying text.

Le Naour, supra note 70, at 124–25 (quoting 1 Alphonse de Lamartine, Histoire de la révolution de 1848, at 415–16 (Paris, Garnier frères 1859)) (translated by author).

Id. at 125 (quoting 5 Louis Véron, Mémoires d’un bourgeois de Paris 97 (Paris, Librairie nouvelle 1857)).

Anne Girollet, Victor Schœlcher, abolitionniste et républicain 115–20 (2000); Le Naour, supra note 70, at 128, 132, 136.

Le Naour, supra note 70, at 126–27, 130–31.

François Furet, Penser la Révolution française 17 (1978).

Lacroix & Pranchère , supra note 56, at 5–10; Frédéric Lazaud, L’exécution par la France des arrêts de la Cour européenne des droits de l’homme 278–89 (2006); Georges Vedel, La place de la Déclaration de 1789 dans le “bloc de constitutionnalité , ” in La Déclaration des droits de l’homme et la jurisprudence, supra note 287, at 35, 37–39, 70.

Le Naour, supra note 70, at 183–84, 187–88, 197.

See supra Part II.

Le Naour, supra note 70, at 185–86, 209, 221.

Id. passim .

Id. at 196 (quoting Journal officiel , May 11, 1894, at 772).

Id. at 236–37 (quoting Journal officiel , Nov. 18, 1908, at 2394).

Id. at 262–63, 279, 289.

Zimring , supra note 22, at 42–45.

Id. at 41. See also supra note 76 and accompanying text.

Zimring , supra note 22, at 26. See also id. (“In the critical years of political change, there was little excitement and ferment in the abolitionist rhetoric and very little sustained debate . . . .”).

Le Naour, supra note 70, at 263–67; Bloch-Michel, supra note 291, at 243.

Albert Camus, Reflections on the Guillotine , in Resistance, Rebellion, and Death 173 (Justin O’Brien trans., Knopf 1961) (1957).

Meursault, the narrator sentenced to death for murder, described the absurdity and cruelty of capital punishment. Albert Camus, The Stranger 106–11 (Matthew Ward trans., Knopf 1988) (1942).

Jean Tarrou, one of the novel’s main characters, repudiated his father because he was a prosecutor who sought the death penalty. Albert Camus, The Plague 189–95 (Robin Buss trans., Penguin 2002) (1947).

Camus, supra note 328 , at 110.

Camus, supra note 327, at 175–76.

Id. at 175.

Id. at 177.

Id. at 233.

Id. at 185, 233.

Id. at 199.

Id. at 179, 197.

See, e.g. , id. at 186–88, 193–94.

This is the case of Burton Abbott, who was executed by California in 1957. Id. at 211–13.

Jouet, supra note 271 (documenting references to Reflections on the Guillotine in the Furman litigation that led the U.S. Supreme Court to abolish capital punishment in 1972). See also generally Arthur J. Goldberg & Alan M. Dershowitz, Declaring the Death Penalty Unconstitutional , 83 Harv. L. Rev . 1773, 1773 (1970) (America must “take what Camus called ‘the great civilizing step’ of abolishing the death penalty”) (citation omitted); Daniel D. Polsby, The Death of Capital Punishment? Furman v. Georgia, 1972 Sup. Ct. Rev. 1, 3 (“While the haut monde read Camus and refined their thoughts on the sanctity of life, the machinist’s wife read the newspapers and thought about how the world was going to hell.”).

Camus, supra note 327, at 204.

See, e.g. , Joint Declaration on the Death Penalty, supra note 5.

See generally Hammel , supra note 38, at 135–40.

Jean Bloch-Michel, Avant-propos de l’édition de 1979 , in Réflexions sur la peine capitale, supra note 291, at 17, 19–20.

Le Naour, supra note 70, at 295–307.

See Katherine Beckett & Theodore Sasson, The Politics of Injustice 77–87 (2000); Garland , supra note 13, at 295.

Bloch-Michel, supra note 345, at 17–18.

Gilles Perrault, Le pull-over rouge (1978). See also Philippe Boucher, Christian Ranucci aurait été exécuté sur des preuves incertaines , Le Monde (Sept. 9, 1978), www.lemonde.fr/archives/article/1978/09/09/christian-ranucci-aurait-ete-execute-sur-des-preuves-incertaines-un-doute-assez-vaillant_3131621_1819218.html (reviewing Perrault’s book).

Le pull-over rouge (Gaumont 1979).

Devant le groupe parlementaire d’étude sur la peine de mort Gilles Perrault évoque l’affaire Ranucci , Le Monde (Nov. 17, 1978), www.lemonde.fr/archives/article/1978/11/17/devant-le-groupe-parlementaire-d-etude-sur-la-peine-de-mort-gilles-perrault-evoque-l-affaire-ranucci_2996215_1819218.html .

Id. (translated by author).

Paul Cassia, Robert Badinter: Un juriste en politique 113 (2009).

Le Naour, supra note 70, at 305–07, 309–13. See supra text accompanying note 346. Badinter also received many insulting letters. L’angoisse de juger [Interview with Michel Foucault, Robert Badinter, and Jean Laplanche (May 30, 1977)], in 2 Foucault: Dits et écrits: 1976–1988, at 282, 291 ( Daniel Defert & François Ewald eds., 2001).

Cassia, supra note 353, at 118 (translated by author).

Id. at 125 (translated by author).

Bloch-Michel, supra note 291, at 232 (emphasis in original) (translated by author).

Jean Laplanche, Les voies de la déshumanité , Le Nouvel observateur, Feb. 26, 1977, at 40, reprinted in Jean Laplanche, La révolution copernicienne inachevée 59 (1997). See also L’angoisse de juger , supra note 355, at 282 (mentioning reactions to Laplanche’s article).

L’angoisse de juger , supra note 355, at 282.

Id. at 282–86.

Zimring , supra note 22, at 22.

Le Naour, supra note 70, at 343.

Robert Badinter, Speech at the National Assembly (Sept. 17, 1981), in Robert Badinter, L’Abolition de la peine de mort 119 (2007).

Id. at 120–21.

See generally id. at 119–55. On Ranucci, see supra note 348 and accompanying text.

Badinter, supra note 364, at 146–47.

Id. at 131, 137, 142, 150.

Id. at 149.

Id. at 138–39.

Cassia, supra note 353, at 9, 12.

Le Naour, supra note 70, at 281, 297, 302, 343, 349. The National Assembly’s vote was 363–117, and the Senate’s 161–126. Id. at 348, 351. See also Loi 81-908 du 9 octobre 1981 portant abolition de la peine de mort, Journal officiel de la République française [J.O.] [Official Gazette of France], Oct. 10, 1981, p. 2759 (law abolishing death penalty).

See, e.g. , Zimring , supra note 22, at 42–45.

Hammel , supra note 38, chs. 4–5; Joaõ Fatela, Système pénitentiaire et abolition de la peine de mort au Portugal , 3 Sociétés & représentations 277 (1996). See also Charles Lucas, De l’abolition de la peine de mort au Portugal 8–14 (1869) (describing Portugal’s abolitionist debate overwhelmingly in normative terms).

See, e.g. , U.K. Foreign & Commonwealth Off., HMG Strategy for Abolition of the Death Penalty 2010–2015, at 4 (2011); Together Against the Death Penalty , Ger. Fed. Foreign Off., www.auswaertiges-amt.de/en/aussenpolitik/themen/menschenrechte/-/2563350 (last visited Mar. 13, 2023); Port. Nat’l Hum. Rts. Comm., Press Release on the Europe and World Day Against the Death Penalty , Port. Min. Foreign Aff. (Oct. 10, 2018), https://direitoshumanos.mne.gov.pt/en/news/press-release-on-the-europe-and-world-day-against-the-death-penalty .

Abolitionist and Retentionist Countries as of July 2018 , supra note 1. Regarding the date of abolition in Great Britain, see supra note 72.

Jouet, supra note 26, at 764–65.

Heuschling, supra note 290, at 115–27.

Hammel , supra note 38, ch. 4.

Id. at 61–62.

Id. at 58–59, 150.

See generally id. at 86–87; Garland, supra note 78, at 355.

Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). See generally Banner , supra note 63, chs. 9, 10.

Steiker & Steiker, supra note 8, at 50; Weisberg, supra note 255, at 315.

Jouet, supra note 271, at 126–34; Steiker & Steiker, supra note 61, at 151–55.

See generally Jouet, supra note 26, at 713–23.

Prison Population Rate , supra note 14.

See Garrett , supra note 10, ch. 10 (discussing mercy’s role in capital cases and beyond).

See supra note 7 and accompanying text.

See supra note 35 and accompanying text.

Protocol No. 6 to European Convention on Human Rights, supra note 73.

Protocol No. 13 to European Convention on Human Rights, supra note 73.

See generally Olivier de Frouville, L’Intangibilité des droits de l’homme en droit international 117–25 (2004).

Kleinfeld, supra note 77, at 984–96.

Cassia, supra note 6, at 24–27, 51–52.

Kleinfeld, supra note 77, at 942, 991–96.

See, e.g. , Roper v. Simmons, 543 U.S. 551 (2005) (holding that executing a juvenile is categorically “cruel and unusual”).

Al-Saadoon v. United Kingdom, 2010-II Eur. Ct. H.R. 61, ¶¶ 115–25, 143 (2010).

Soering v. United Kingdom, App. No. 14038/88, ¶¶ 92–111 (July 7, 1989), https://hudoc.echr.coe.int/eng?i=001-57619 . Soering ’s approach evoked the U.S. debate over methods of executions (lethal injection, electric chair, etc.) and whether they cause suffering. This should not be conflated with finding executions inhumane per se. See Austin Sarat, When the State Kills ch. 3 (2002).

Glossip v. Gross, 576 U.S. 863, 929 (2015) (Breyer, J., dissenting) (citing Soering at 439).

Id. at 944.

See supra note 2 and accompanying text.

Breyer, supra note 3.

Barr v. Lee, No. 20A8, slip. op. at 2–3 (July 14, 2020) (per curiam) (Breyer, J., dissenting) (U.S.) (“[V]arious features of the death penalty as currently administered show that it may well violate the Constitution . . . . the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty . . . .”).

James S. Liebman et al., A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States , 1 J. Empirical Legal Stud . 209 (2004); James S. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It (2002), https://scholarship.law.columbia.edu/faculty_scholarship/3418 ; James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error Rates in Capital Cases, 1973–1995 (2000), https://scholarship.law.columbia.edu/faculty_scholarship/1219 .

See, e.g. , Adam Liptak, Shapers of Death Penalty Give Up on Their Work , N.Y. Times , Jan. 5, 2010 (“What the [American Law Institute] was saying is that the capital justice system in the United States is irretrievably broken.”); The Death Penalty Is Broken Beyond Repair , 8th Amend. Project (May 16, 2019), https://web.archive.org/web/20190516105922/http://www.8thamendment.org:80 .

See generally Steiker & Steiker, supra note 9, passim ; Sherod Thaxton, Disciplining Death: Assessing and Ameliorating Arbitrariness in Capital Charging , 49 Ariz. St. L.J. 137, 140–46 (2017).

See generally Banner , supra note 63, passim ; Le Naour, supra note 70, passim ; Mugambi Jouet, The Day Canada Said No to the Death Penalty in the United States: Innocence, Dignity, and the Evolution of Abolitionism , 55 UBC L. Rev. 439 (2022).

Montaigne, supra note 100, at 385.

Zimring , supra note 22, at 25.

Congress may lack the legislative authority to pass national abolition. Moreover, a constitutional amendment would require an inconceivable super-majority. See Steiker & Steiker, supra note 8, at 255–58.

Another consideration is whether European abolitionism reflects the greater influence of elites and counter-majoritarian mechanisms. See Hammel , supra note 38, passim .

State by State , Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited Oct. 2, 2022).

See generally Steiker & Steiker, supra note 9, at 364–65.

Governor Gavin Newsom Orders a Halt to the Death Penalty in California , Cal. Governor Off. (Mar. 13, 2019), www.gov.ca.gov/2019/03/13/governor-gavin-newsom-orders-a-halt-to-the-death-penalty-in-california/ .

See generally supra notes 2, 8, 9 and accompanying text

Jouet, supra note 26, passim .

Roper v. Simmons, 543 U.S. 551, 575–78 (2005).

Graham v. Florida, 560 U.S. 48, 80–82 (2010) (abolishing life without parole in nonhomicide juvenile cases). The Justices did not refer to international standards in a subsequent decision finding the sentence constitutional in juvenile homicide cases, so long as it is not mandatory. Miller v. Alabama, 567 U.S. 460 (2012).

Jouet, supra note 26, at 734, 766.

Case of Vinter and Others v. the United Kingdom, App. Nos. 66069/09, 130/10, 3896/10 (July 9, 2013), https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-122664%22 ]}. In an exception to the abolition of life imprisonment without the possibility of parole, the European Court of Human Rights subsequently allowed a “whole life order” scheme to persist in the United Kingdom following the country’s threats to leave the Court. Case of Hutchinson v. the United Kingdom, App. No. 57592/08 (Jan. 17, 2017), https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-170347%22 ]}. See also Ergul Celiksoy, “UK Exceptionalism” in the ECtHR’s Jurisprudence on Irreducible Life Sentences , 24 Int’l J. Hum. Rts. 1594, 1600–01 (2020).

See Martha Minow, The Controversial Status of International and Comparative Law in the United States , 52 Harv. Int’l L.J. Online 1, 4–5, 6–7, 11, 12 (2010), https://dash.harvard.edu/handle/1/10511098 .

Garrett, supra note 10, passim ; S teiker & Steiker, supra note 8, passim ; Sherod Thaxton, Disentangling Disparity: Exploring Racially Disparate Effect and Treatment in Capital Charging , 45 Am. J. Crim . L. 95 (2018).

See generally Hugo, supra note 31.

See, e.g. , McCleskey v. Kemp, 481 U.S. 279 (1987) (upholding the constitutionality of the death penalty despite statistical evidence of systemic discrimination).

See Gregg v. Georgia, 428 U.S. 153, 231 (1976) (plurality opinion) (Marshall, J., dissenting); Furman v. Georgia, 408 U.S. 238, 314 (1972) (per curiam) (Marshall, J., concurring). For the other historical figures, see supra notes 192, 211, 259, and accompanying text.

See supra note 402 and accompanying text.

European Commission , Commission Extends Control Over Goods Which Could Be Used for Capital Punishment or Torture (Dec. 20, 2011), https://ec.europa.eu/commission/presscorner/detail/en/IP_11_1578 ; Europe Blocks Export of Lethal Injection Drugs , Reprieve (Dec. 20, 2011), https://reprieve.org.uk/press/2011_12_20_european_commission_lethal_injections .

Glossip v. Gross, 576 U.S. 863, 869 (2015).

Zimring , supra note 22, at 26–41.

Wheeler, supra note 207, at 1.

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The Death Penalty is not Worth the Cost

The death penalty is a government practice, used as a punishment for capital crimes such as treason, murder, and genocide to name a few. It has been a controversial topic for many years some countries still use it while others don't. In the United States, each state gets to choose whether they consider it to be legal or not. Which is why in this country 30 states allow it while 20 states have gotten rid of it. It is controversial […]

Ineffectiveness of Death Penalty

Death penalty as a means of punishing crime and discouraging wrong behaviour has suffered opposition from various fronts. Religious leaders argue that it is morally wrong to take someone's life while liberal thinkers claim that there are better ways to punish wrong behaviour other than the death penalty. This debate rages on while statistically, Texas executes more individuals than any other state in the United States of America. America itself also has the highest number of death penalty related deaths […]

Is the Death Penalty Morally Right?

There have been several disputes on whether the death penalty is morally right. Considering the ethical issues with this punishment can help distinguish if it should be denied or accepted. For example, it can be argued that a criminal of extreme offenses should be granted the same level of penance as their crime. During the duration of their sentencing they could repent on their actions and desire another opportunity of freedom. The death penalty should be outlawed because of too […]

Why the Death Penalty is Unjust

Capital punishment being either a justifiable law, or a horrendous, unjust act can be determined based on the perspective of different worldviews. In a traditional Christian perspective, the word of God given to the world in The Holy Bible should only be abided by. The Holy Bible states that no man (or woman) should shed the blood of another man (or woman). Christians are taught to teach a greater amount of sacrifice for the sake of the Lord. Social justice […]

The Death Penalty and People’s Opinions

The death penalty is a highly debated topic that often divided opinion amongst people all around the world. Firstly, let's take a look at our capital punishments, with certain crimes, come different serving times. Most crimes include treason, espionage, murder, large-scale drug trafficking, and murder towards a juror, witness, or a court officer in some cases. These are a few examples compared to the forty-one federal capital offenses to date. When it comes to the death penalty, there are certain […]

The Debate of the Death Penalty

Capital punishment is a moral issue that is often scrutinized due to the taking of someone’s life. This is in large part because of the views many have toward the rule of law or an acceptance to the status quo. In order to get a true scope of the death penalty, it is best to address potential biases from a particular ethical viewpoint. By looking at it from several theories of punishment, selecting the most viable theory makes it a […]

The History of the Death Penalty

The History of the death penalty goes as far back as ancient China and Babylon. However, the first recorded death sentence took place in 16th Century BC Egypt, where executions were carried out with an ax. Since the very beginning, people were treated according to their social status; those wealthy were rarely facing brutal executions; on the contrary, most of the population was facing cruel executions. For instance, in the 5th Century BC, the Roman Law of the Twelve Tablets […]

Death Penalty is Immoral

Let's say your child grabs a plate purposely. You see them grab the plate, smash it on the ground and look you straight in the eyes. Are they deserving of a punishment? Now what if I say your child is three years old. A three year old typically doesn't know they have done something wrong. But since your child broke that one plate, your kid is being put on death row. You may be thinking, that is too harsh of […]

The Death Penalty in the United States

The United States is the "land of the free, home of the brave" and the death penalty (American National Anthem). Globally, America stands number five in carrying executions (Lockie). Since its resurrection in 1976, the year in which the Supreme Court reestablished the constitutionality of the death penalty, more than 1,264 people have been executed, predominantly by the medium of lethal injection (The Guardian). Almost all death penalty cases entangle the execution of assassins; although, they may also be applied […]

Cost of the Death Penalty

The death penalty costs more than life in prison. According to Fox News correspondent Dan Springer, the State of California spent 4 billion dollars to execute 13 individuals, in addition to the net spend of an estimated $64,000 per prisoner every year. Springer (2011) documents how the death penalty convictions declined due to economic reasons. The state spends up to 3 times more when seeking a death penalty than when pursuing a life in prison without the possibility of parole. […]

The Solution to the Death Penalty

There has never been a time when the United States of America was free from criminals indulging in killing, stealing, exploiting people, and even selling illegal items. Naturally, America refuses to tolerate the crimes committed by those who view themselves as above the law. Once these convicts are apprehended, they are brought to justice. In the past, these criminals often faced an ultimate punishment: the death penalty. Mercy was a foreign concept due to their underdeveloped understanding of the value […]

Costs: Death Penalty Versus Prison Costs

The Conservatives Concerned Organization challenges the notion that the death penalty is more cost effective compared to prison housing and feeding costs. The organization argues that the death penalty is an expensive lengthy and complicated process concluding that it is not only a bloated program that delays justice and bogs down the enforcement of the law, it is also an inefficient justice process that diverts financial resources from law enforcement programs that could protect individuals and save lives. According to […]

Death Penalty as a Source of Constant Controversy

The death penalty has been a source of almost constant controversy for hundreds of years, splitting the population down the middle with people supporting the death penalty and people that think it is unnecessary. The amount of people that are been against the death penalty has grown in recent years, causing the amount of executions to dwindle down to where there is less than one hundred every year. This number will continue to lessen as more and more people decide […]

Death Penalty is Politically Just?

Being wrongfully accused is unimaginable, but think if you were wrongfully accused and the ultimate punishment was death. Death penalty is one of the most controversial issues in today's society, but what is politically just? When a crime is committed most assume that the only acceptable consequence is to be put to death rather than thinking of another form of punishment. Religiously the death penalty is unfair because the, "USCCB concludes prisoners can change and find redemption through ministry outreach, […]

George Walker Bush and Death Penalty

George Walker Bush, a former U.S. president, and governor of Texas, once spoke, "I don't think you should support the death penalty to seek revenge. I don't think that's right. I think the reason to support the death penalty is because it saves other people's lives." The death penalty, or capital punishment, refers to the execution of a criminal convicted of a capital offense. With many criminals awaiting execution on death row, the death penalty has been a debated topic […]

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How To Write an Essay About Death Penalty

Understanding the topic.

When writing an essay about the death penalty, the first step is to understand the depth and complexities of the topic. The death penalty, also known as capital punishment, is a legal process where a person is put to death by the state as a punishment for a crime. This topic is highly controversial and evokes strong emotions on both sides of the debate. It's crucial to approach this subject with sensitivity and a balanced perspective, acknowledging the moral, legal, and ethical considerations involved. Research is key in this initial phase, as it's important to gather facts, statistics, and viewpoints from various sources to have a well-rounded understanding of the topic. This foundation will set the tone for your essay, guiding your argument and supporting your thesis.

Structuring the Argument

The next step is structuring your argument. In an essay about the death penalty, it's vital to present a clear thesis statement that outlines your stance on the issue. Are you for or against it? What are the reasons behind your position? The body of your essay should then systematically support your thesis through well-structured arguments. Each paragraph should focus on a specific aspect of the death penalty, such as its ethical implications, its effectiveness as a deterrent to crime, or the risk of wrongful convictions. Ensure that each point is backed up by evidence and examples, and remember to address counterarguments. This not only shows that you have considered multiple viewpoints but also strengthens your position by demonstrating why these opposing arguments may be less valid.

Exploring Ethical and Moral Dimensions

An essential aspect of writing an essay on the death penalty is exploring its ethical and moral dimensions. This involves delving into philosophical debates about the value of human life, justice, and retribution. It's important to discuss the moral justifications that are often used to defend the death penalty, such as the idea of 'an eye for an eye,' and to critically evaluate these arguments. Equally important is exploring the ethical arguments against the death penalty, including the potential for innocent people to be executed and the question of whether the state should have the power to take a life. This section of the essay should challenge readers to think deeply about their values and the principles of a just society.

Concluding Thoughts

In conclusion, revisit your thesis and summarize the key points made in your essay. This is your final opportunity to reinforce your argument and leave a lasting impression on your readers. Discuss the broader implications of the death penalty in society and consider potential future developments in this area. You might also want to offer recommendations or pose questions that encourage further reflection on the topic. Remember, a strong conclusion doesn't just restate what has been said; it provides closure and offers new insights, prompting readers to continue thinking about the subject long after they have finished reading your essay.

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Introduction

Historical considerations

Moral arguments
Utilitarian arguments
Practical arguments
The abolition movement
Capital punishment in the early 21st century

capital punishment

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Internet Encyclopedia of Philosophy - Capital Punishment
Santa Clara University - Capital Punishment: Our Duty or Our Doom?
Cornell Law School - Legal Information Institute - Death penalty
capital punishment - Children's Encyclopedia (Ages 8-11)
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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.

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10 Articles About The Death Penalty

For decades, the death penalty has been decreasing around the world, but it hasn’t disappeared yet. According to data from Amnesty International , there were 579 executions in 2021, which represents a 20% increase from 2020. 108 countries have abolished the death penalty for all crimes, while 144 countries have abolished it in law or practice. Even as executions decrease, questions about the death penalty’s place in society remain. Does it deter violent crime? How many innocent people have been executed? How does living in a society with the death penalty affect humanity’s psyche? Here are 10 articles about the death penalty:

Content warning: Non-gratuitous references to violence, murder, and executions

#1. Valuing Black Lives: A Case for Ending the Death Penalty

Columbia Human Rights Law Review | Alexis Hoag

Released in the Columbia Human Rights Law Review, this article tackles the intersection of race and death penalty in the United States. Racial disparities have long been an issue with the death penalty, leading to courts and juries treating cases with white victims as more serious. As a result, Black murder victims’ lives are – in the words of the article – “undervalued.” The death penalty also targets those Hoag describes as the “most disfavored members of society,” including poor people, people with mental illness, and Black people. Because of racial disparities, Hoag argues that the 14th amendment, which deals with equal protection under the law, could be used to challenge the death penalty. This challenge would force the government to deal with how racism and prejudice affect who the death penalty protects and who it’s reserved for. To guarantee Black victims get equal protection, the best remedy is ending death penalty completely. As Hoag says, “Rather than expand or even reform capital punishment, the only solution is abolition.”

#2. They went to prison as kids. Now they’re on death row.

The Marshall Project (in partnership with Slate) | Keri Blakinger + Maurice Chammah

According to research, there are dozens of death row prisoners who spent time in youth lockups. Most of these lockups are in Texas and are infamous for their abuse of prisoners. As the article relates, the experiences of young people in youth lockups set them on paths that led to death row. At 16, Terence Andrus went to a juvenile prison for robbery. The prison’s mission? To provide him with treatment, skills, and education. The lockup ended up exposing him to gangs, drugs, and frequent stretches in solitary confinement. After leaving the prison, 20-year-old Andrus killed two people while trying to steal cars. Andrus takes responsibility for his actions, but like many death row prisoners who went through the juvenile system, it’s clear his experiences in lockup impacted his mental health and exacerbated the abuse already suffered at the hands of his mother. While some want to believe people like Andrus are inherently criminal and violent, reality paints a much different picture. Andrus’ death sentence was initially vacated because his lawyer was proven ineffective, but on appeal, the sentence was reinstated. In June 2022, the Supreme Court declined to review Andrus’ appeal. At the time of writing, he remains on death row.

#3. Interview with Jim Brazzil

PBS Frontline

Prison chaplain Jim Brazzil has witnessed over a hundred executions. He’s been featured in media like the New York Times, where an article from 1997 describes an execution in Texas. In this interview with PBS, Brazzil discusses his feelings about his job, what he sees as his purpose, and what happens during an execution. Brazzil sees his role as that of a spiritual advisor, so he doesn’t take a position on the death penalty. He’s only focused on the needs of the prisoner as they face their death. It takes him about three days to prepare for an execution and about three days or longer to recover. As a witness, Brazzil also gets an idea of how executions affect everyone present, such as the officers and medics who are also part of the process. Throughout the interview, Brazzil repeats a variation of a specific phrase: “It’s always going to be a part of you.”

#4. Sister Helen Prejean On Witnessing Executions: “ I Couldn’t Let Them Die Alone”

NPR Fresh Air transcript

In this transcript from Fresh Air, Terry Gross interviews Sister Helen Prejean. Prejean is known for her social justice activism and her book Dead Man Walking, which was adapted into a 1995 film starring Susan Sarandon. In 1957, Prejean joined the congregation of St. Joseph and by the 1980s, she was focusing on the poor and imprisoned. In 1982, she became a spiritual advisor to a murderer on death row. She’s since accompanied six people to their executions. Her latest memoir from 2019 – River of Fire – explores her spiritual journey. In the interview, Prejean talks about her life, including what she first imagined her life would be like as a nun, her views on the church, what drew her to social justice, and more. Unlike Jim Brazzil, Prejean does take a stance on the death penalty: she’s opposed.

#5. California’s Longest-Serving Death-Row Prisoner on Pain, Survival, and Native Identity

The Marshall Project | Douglas Ray Stankewitz as told to Richard Arlin Walker

In 1978, a 21-year-old was carjacked and killed in California. Douglas Ray Stankewitz, a Monache and Cherokee Indian from the Big Sandy Rancheria, was convicted at age 20 and sentenced to death by gas chamber. After a new trial, he received another death sentence. He’s spent 43 years in prison for the crime, which he says he didn’t commit. In 2019, his sentence was reduced to life without parole, but not before Stankewitz became what’s likely California’s longest-serving death row prisoner. This article, which uses Stankewitz’s own words, describes his experiences, which include isolation, meager meals, and abuse from guards.

Stankewitz’s team has made multiple attempts to get him released. In the years since his conviction, testimony against him has faltered , most notably the testimony from one of the co-defendants, who recanted his testimony. Records show the co-defendant did not have a lawyer or parent with him despite being a minor. In light of this information, a resentencing hearing is scheduled for January 2023.

#6. Sentenced to death, but innocent: These are stories of justice gone wrong

National Geographic | Phillip Morris | Photography: Martin Schoeller

In this 2021 article and photo essay, Phillip Morris interviews people who faced execution after being falsely convicted. The subjects include Kwame Ajumyu, who lives within walking distance of Morris. Ajamu was sentenced to death in 1975 when he was just 17. The primary testimony against Ajamu came from a 13-year-old boy, who claimed he saw Ajamu and another young man attack Harold Franks, a money order salesman. No evidence – physical or forensic – connected Ajamu to the murder. He still received a death sentence. 39 years later, it came out that the 13-year-old witness had immediately tried to recant his statement, but police told him his parents would be charged with perjury. In 2003, Ajamu was released on parole after 27 years in prison. Morris’s article includes other stories as well as informational graphics on the death penalty.

#7. Why the fight for racial justice in the US requires the abolition of the death penalty

The Conversation | Bharat Malkani

A senior lecturer at The School of Law and Politics at Cardiff University, Malkani argues that the fight for racial justice in the United States – most recently manifested by the protests in the summer of 2020 – requires the abolition of the death penalty. This article explains how America’s history of lynchings, slavery, and racial violence are linked to death penalty. As an example, when campaigns against lynching caused a reduction in extrajudicial killings in the 1920s and 1930s, state-sanctioned executions increased. Racism is still baked into the death penalty today. Data shows a person is much more likely to receive a death sentence for killing a white person versus killing a Black person. If a Black person kills a white person, their chance of getting a death sentence increases even more. Malkani is the author of Slavery and the Death Penalty: A Study in Abolition (2018).

#8. The Case Against the Death Penalty

For those curious about why so many activists and organizations oppose the death penalty, this piece from the American Civil Liberties Union explains their stance. It first describes death penalty in the modern era beginning in 1972. The Supreme Court stated that under then-existing laws, the death penalty violated the Eighth and Fourteen Amendments. However, four years later, new state death penalty statutes had been written and several hundred had been sentenced to death. In 1976, the Supreme Court changed course, saying that “the punishment of death does not invariably violate the Constitution.” The piece then lists and explores the ACLU’s objections to the death penalty, including that the death penalty doesn’t significantly deter crime, it’s not applied fairly, and it’s barbaric to everyone involved.

#9. Meet the former state executioner who’s cheering for the decline of capital punishment in America

ABC News | James Glenday and Emily Olson

For 17 years, Jerry Givens was Virginia’s chief executioner. During his career, 25 prisoners were executed by lethal injection while 37 died in the electric chair. Not even his family knew what his job was; Givens was ordered to keep it secret. In this article from 2019, Givens describes what it was like to carry out an execution, from the physical exam that made sure the prisoner was healthy to the walk to the death chamber before 9:00 pm. After a death row inmate narrowly avoided execution – and was later exonerated of the crime completely – Givens started to doubt his role in the system. A 4-year stint in jail himself – as well as his faith – also played a part in transforming Givens into an anti-death penalty activist. The article also discusses how the death penalty (and support of it) is declining. Jerry Givens passed away in 2020.

#10. Ex-prison worker in Japan who witnessed execution speaks of shocking experience

The Mainichi | Takayasu Ogura

Alongside the United States, Japan is one of the few “developed” countries that maintains the death penalty. The specifics are often shrouded in mystery. This article translated from Japanese describes the experience of a defense lawyer who once witnessed an execution while working as a prison officer. He explains how prisoners are notified only a day before their scheduled deaths, at which point they’re taken to a room for constant monitoring. When it’s time, inmates are blindfolded and handcuffed before they’re executed by hanging. Witnessing the execution deeply affected the officer. After four years as a ministry of justice official, he resigned and became a lawyer. Currently, Japan notifies prisoners only hours before they will be executed, which many rights groups say is inhumane. As of November 2022, there were about 100 people on death row.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

The Death Penalty Debate: Arguments For and Against Capital Punishment

The debate around the Death Penalty has been argued many times over, with the practice continuing to divide opinion. Many nations continue to impose the death penalty on criminals, while other nations have outlawed the punishment.

We also have a viewer poll below, to gauge the opinion of our great readers! We would love you to take part below.

There are many different ways that the death penalty may be carried out. Hanging, firing squad and lethal injection are the most common, though it differs from territory to territory.

Offences that merit a death sentence typically include crimes against humanity, murder or espionage – again, the precise crimes that justify capital punishment will be different from nation to nation.

At the time of writing, 56 countries continue to legalise capital punishment. Notable countries include China, Iran, Saudi Arabia, the United States, Somalia and Afghanistan. Over 60% of the world’s population live in countries where the death penalty is a form of punishment. The topic has proven highly controversial.

Arguments For the Death Penalty

Arguments against the death penalty, the takeaway.

As seen, the death penalty is a highly-controversial practice, and one that has many arguments both for and against its use. It will continue to be something that is scrutinised for many years to come.

Do you support the Death Penalty?

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IELTS band 9 essay: death penalty

Here you can find advice how to structure IELTS essay and IELTS model answer for death penalty topic. Question type: advantages and disadvantages .

Here is the question card:

Some people advocate death penalty for those who committed violent crimes. Others say that capital punishment is unacceptable in contemporary society.

Describe advantages and disadvantages of death penalty and give your opinion.

So this is the advantage/disadvantage essay. In this essay you're asked about :

Advantages of capital punishment
Disadvantages of capital punishment
Your opinion about it

Before writing this IELTS essay, you should decide what’s your opinion and then choose your arguments to describe pros and cons of death penalty. You don’t have to make up very complicate ideas. Even simple, but well-written arguments can often give you a band 9 for writing .

Some of the possible arguments :

Disadvantages of capital punishment :
we have no rights to kill other humans
innocent people can be killed because of unfair sentences
even criminals deserve a second chance
Advantages of capital punishment :
it prevents major crimes
it restores equilibrium of justice
it lessens expenses on maintenance of prisoners

How to structure my answer?

Surely, there are a lot of ways to organise this essay. But here is one possible way of structuring the answer to produce a band 9 essay :

Introduction : rephrase the topic and state your opinion.

Body paragraphs :

paragraph 1: disadvantages of death penalty
paragraph 2: advantages of death penalty

Conclusion : sum up the ideas from body paragraphs and briefly give your opinion.

Band 9 essay sample (death penalty)

Many people believe that death penalty is necessary to keep security system efficient in the society. While there are some negative aspects of capital punishment, I agree with the view that without it we will become more vulnerable to violence.

Death penalty can be considered unsuitable punishment for several reasons. The strongest argument is that we have no rights to kill other humans. Right to live is the basic right of any human being, and no one can infringe this right, irrespective of the person’s deeds. Moreover, innocent people can face wrongful execution. Such unfair sentences take away lives of innocent people and make other citizens lose faith in law and justice. And besides, sometimes criminals repent of their acts. In this case they should be given a second chance to improve themselves.

However, I believe that capital punishment is necessary in the society. Firstly, it is an effective deterrent of major crimes. The best method to prevent a person from committing crime is to show the consequences of his or her actions. For example, the government of Pakistan has controlled the rate of terrorism by enforcing death penalties for the members of terrorist organisations. Secondly, the governments spend large sums of national budget on maintenance of prisoners. Instead, this money can be used for the development of the society and welfare of the people.

To sum up, although capital punishment has some disadvantages, I think that it proves to be the best way of controlling criminals, lessening governmental expenses and preventing other people from doing crimes.

(257 words)

Useful vocabulary

capital punishment = death penalty

to commit a crime - to do a crime

deterrent of major crimes - something that prevents big crimes

to face wrongful execution - to be mistaken for a criminal and killed for that

to infringe someone’s right - restrict someone’s right, hurt someone’s interests

innocent people - people who are not guilty or responsible for crimes

to repent of something - to feel sorry for something

right to live is basic right of any human being

unfair sentence - not fair judgement

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Death Penalty Essay Disagree
Argumentative Essay On Death Penalty
💄 Argument essay against death penalty. Against the Death Penalty
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10 Reasons Why The Death Penalty is Wrong
The web page argues that the death penalty is inhumane, ineffective, and biased against certain groups. It cites data, examples, and international treaties to support its claims and challenges the common arguments in favor of the death penalty.
Arguments for and Against the Death Penalty
Explore the pros and cons of the death penalty from different perspectives, such as deterrence, retribution, innocence, and arbitrariness. View arguments and testimony from both sides of the debate and learn more about the issue.
Should the Death Penalty Be Abolished?
In the July Opinion essay "The Death Penalty Can Ensure 'Justice Is Being Done,'" Jeffrey A. Rosen, then acting deputy attorney general, makes a legal case for capital punishment:
Top 10 Pro & Con Arguments
Explore the pros and cons of the death penalty from different perspectives, such as legality, deterrence, retribution, and methods of execution. Learn about the arguments for and against life without parole, innocence, and federal death penalty.
Death Penalty: Arguments For and Against Essay
Death penalty: Contemporary issues. Indian National Bar Association. Web. Flanders, C. (2013). The case against the case against the death penalty. New Criminal Law Review: An International and Interdisciplinary Journal, 16(4), 595-620. Hood, R., & Hoyle, C. (2009). Abolishing the death penalty worldwide: The impact of a "new dynamic".
Capital punishment
Learn about the moral, utilitarian, and practical arguments for and against capital punishment, also known as death penalty or execution. Explore the history and current status of capital punishment around the world, and the role of human rights and international law in its abolition.
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For some, opposing the death penalty may be a matter of principle: Because each human life is special and important, ending it is impermissible in every instance. We are inclined to agree, but ...
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This paper explores the philosophical problems and arguments surrounding the death penalty, such as the uncertainty in harm, blame, rights, and causal consequences. It also proposes an 'impossibilist' position that challenges the very notion of the death penalty as a punishment.
The Death Penalty Can Ensure 'Justice Is Being Done'
Mr. Lee's lawyers and other death penalty opponents are entitled to disagree with that sentiment. But if the United States is going to allow capital punishment, a white-supremacist triple ...
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Learn 10 facts about the death penalty from Amnesty's perspective, including its violations of human rights, its ineffectiveness in deterring crime, and its discriminatory and unfair application. Find out how Amnesty campaigns to end capital punishment worldwide and how you can join the cause.
The Case Against the Death Penalty
The American Civil Liberties Union argues that the death penalty violates the ban against cruel and unusual punishment and the guarantees of due process and equal protection. It also claims that capital punishment is arbitrary, discriminatory, wasteful, and ineffective in preventing crime.
Death Penalty Abolitionism from the Enlightenment to Modernity
This article traces the historical evolution of abolitionist arguments in Europe and America, showing that humanistic and practical objections to capital punishment have long coexisted. It challenges the notion that human rights norms are foreign to American culture and that the death penalty is a human rights violation.
Death penalty
The use of the death penalty is not consistent with the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment. There is growing consensus for universal abolition of the death penalty. Some 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice.
Death Penalty
Find free essay examples on the death penalty, a controversial issue in many societies. Explore the moral, legal, and social arguments, the historical trends, the global trends, and the psychological impact of capital punishment.
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Capital punishment is the execution of an offender sentenced to death by a court of law for a criminal offense. Learn about the origins, debates, and controversies of capital punishment in different cultures and religions, as well as the various methods of execution used throughout history.
Death Penalty Essay (docx)
Death Penalty Essay Pro: The use of the death penalty is a controversial issue, with supporters and opponents on both sides due to its potential pros and cons. The death penalty is believed to act as a deterrent, both for individuals with criminal intent and society, by encouraging them to weigh the consequences of their actions. As James Melton said, "I bet 18,000 executions would deter some ...
10 Articles About The Death Penalty
For decades, the death penalty has been decreasing around the world, but it hasn't disappeared yet. According to data from Amnesty International, there were 579 executions in 2021, which represents a 20% increase from 2020. 108 countries have abolished the death penalty for all crimes, while 144 countries have abolished it in law or practice.Even as executions decrease, questions about the ...
The Death Penalty Debate: Arguments For and Against ...
Learn about the pros and cons of the death penalty, a controversial practice that continues to divide opinion. Find out which countries impose or outlaw capital punishment, and how it affects human rights and crime deterrence.
IELTS Writing band 9 sample: death penalty
Learn how to write a band 9 essay on death penalty topic with advantages and disadvantages. See the question card, the structure and the sample answer with useful vocabulary.
Philippines death penalty: A fight to stop the return of capital ...
Ms Diokno, who leads her group's anti-death penalty task force, has been braced for a battle with Mr Duterte ever since he vowed to bring back the death penalty as part of his election campaign.
Locals, officials stand in solidarity with Marcellus Williams
In a statement, Bell emphasized, "Even for those who disagree on the death penalty, when there is a shadow of a doubt of any defendant's guilt, the irreversible punishment of execution should ...

Arguments for and Against the Death Penalty

Retribution

Arbitrariness & Discrimination

Top 10 Pro & Con Arguments

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Death Penalty: Arguments For and Against Essay

Introduction

The Death Penalty is Wrong. Every Single Time.

Journal of Practical Ethics

The Death Penalty Can Ensure ‘Justice Is Being Done’

The Death Penalty - your questions answered

1. Why does Amnesty International oppose the death penalty?

2. Don’t victims of violent crime and their families have a right to justice?

3. If you kill someone else, don’t you deserve to die, too – “an eye for an eye”?

4. Doesn’t the death penalty prevent crime?

5. What about capital punishment for terrorists?

6. Isn’t it better to execute someone than to lock them up forever?

7. Is there a humane and painless way to execute a person?

8. What business is it of Amnesty’s if different societies want to use the death penalty?

9. What if public opinion is in favour of the death penalty?

10. Is the battle to abolish the death penalty being won?

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Article Contents

Death Penalty Abolitionism from the Enlightenment to Modernity

A. Beccaria’s Momentous Abolitionist Discourse

B. Beccaria’s Predecessors

C. Beccaria’s Successors

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Death Penalty - Essay Samples And Topic Ideas For Free

Death Penalty and Justice

The Controversy of Death Penalty

Stephen Nathanson’s “An Eye for an Eye”

Does the Death Penalty Effectively Deter Crime?

The Death Penalty: Right or Wrong?

About Carlton Franklin

About the Death Penalty

The Death Penalty should not be Legal

Effectively Solving Society’s Criminality

Religious Values and Death Penalty

Abolishment of the Death Penalty

Punishment and the Nature of the Crime

The Death Penalty and Juveniles

Is the Death Penalty “Humane”

Euthanasia and Death Penalty

The Death Penalty is not Worth the Cost

Ineffectiveness of Death Penalty

Is the Death Penalty Morally Right?

Why the Death Penalty is Unjust

The Death Penalty and People’s Opinions

The Debate of the Death Penalty

The History of the Death Penalty

Death Penalty is Immoral

The Death Penalty in the United States

Cost of the Death Penalty

The Solution to the Death Penalty

Costs: Death Penalty Versus Prison Costs

Death Penalty as a Source of Constant Controversy

Death Penalty is Politically Just?

George Walker Bush and Death Penalty

Additional Example Essays

How To Write an Essay About Death Penalty

Structuring the Argument

Exploring Ethical and Moral Dimensions

Concluding Thoughts

Historical considerations

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