An Argument Against Capital Punishment

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The legal system of the United States has countenanced capital punishment since the nation’s inception, with the exception of a brief period from 1972 to 1976. Suspension of the death penalty began with a U.S. Supreme Court ruling, Furman v. Georgia, which found it to be unconstitutional due to the arbitrary and capricious nature of its implementation. In 1976, following state-based reforms, the court’s decision in Gregg v. Georgia held that capital punishment could resume, but its use in the ensuing years has been seriously flawed and ineffective. As currently practiced, the death penalty remains arbitrary in its application, racially-biased, too expensive to implement, and it should be considered unconstitutional under the Eighth and 14th Amendments. In the absence of serious and broad-based reforms to address these problems, capital punishment should be abolished.

The popular notion of the death penalty is that it should be reserved for the worst offenders. In truth, however, its use is fundamentally arbitrary. According to a recent report by the Death Penalty Information Center, the severity of the crime and the culpability of the defendant have little to do with who is actually sentenced to death, but rather factors such as poverty, inadequate legal representation, jury selection and bias, and geography are more predictive. The study describes capital punishment as “a broken and unreliable system, compounded by wide disparities between states. In some states, most death sentences are overturned and almost no one is executed, but in others, like Texas and Virginia, where reversals are rare, over 575 people have been executed since 1976, almost half of the national total” (Dieter 9). The death penalty is imposed inconsistently, on a relatively small percentage of defendants, and is largely restricted to a narrow geographic region of the country.

Perhaps the most troubling aspect of capital punishment as practiced in the United States is the fact that it is racially biased. This is especially apparent in southern “Jim Crow” states with a history of extra-legal violence and lynching. Black defendants are far more likely than whites to be sentenced to death, particularly if the victim is white and if there are no black people on the jury. According to an article by Charles Ogletree published in the Oregon Law Review, racially disproportionate sentencing that punishes black defendants more harshly “reflects a disturbing racial calculus: White lives are considered to be more valuable than black lives, because the killing of a white is treated as a more serious crime—a crime worthy of a more severe punishment—than the killing of a black” (Ogletree 32). The racially discriminatory application of death penalty statutes is a powerful argument for the abolition of capital punishment.

Death penalty prosecutions are inordinately expensive, requiring separate guilt and penalty phases and mandatory appeals. Keeping inmates on death row is also much more costly than housing them in the general prison population. A recent article published in the Loyola Law Review demonstrates that eliminating the death penalty in California, which would require the passage of a ballot initiative, would save taxpayers billions of dollars:

An immediate net savings of $170 million per year would be realized assuming the governor were to commute the sentences of those prisoners currently on death row to sentences of life imprisonment without the possibility of parole—and a savings of $5 billion over the next 20 years. (Alarcón and Mitchell 183)

While it might seem counterintuitive, life sentences are far less costly than death sentences. In addition to these fiscal benefits, giving life sentences to death row inmates would also eliminate another serious social cost of capital punishment: the inherent risk of executing an innocent person.

The Eighth Amendment to the U.S. Constitution prohibits the imposition of cruel and unusual punishments. The practical interpretation of this clause, combined with the 14th Amendment’s guarantees of equal protection under the law, forms the legal basis of arguments against capital punishment. U.S. Supreme Court Justice William J. Brennan, who dissented in the 1976 case that reinstated the death penalty, was an outspoken public critic of capital punishment. In 1985, during his tenure on the court, Brennan delivered an address at a symposium in Washington, D.C. in which he argued that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and 14th Amendments…A punishment must not be so severe as to be utterly and irreversibly degrading to the very essence of human dignity” (Brennan 14). Brennan argued that these constitutional principles embody the moral framework that informs and restrains the actions of a civilized society toward those who violate the law. Executing a person deprives him of all legal and natural rights and offends modern standards of morality and decency.

Capital punishment is impractical, ineffective, fiscally unsound, nearly impossible to administer fairly, and is incompatible with a modern interpretation of the U.S. Constitution.

Works Cited

Alarcón, Arthur L., and Paula M. Mitchell. “Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion Dollar Death Penalty Debacle.” Loyola of Los Angeles Law Review. N.p., 1 Feb. 2011. Web. 13 Feb. 2014. <>.

Brennan, Jr., William J. “The Constitution of the United States: Contemporary Ratification.” Text and Teaching Symposium, Washington, D.C., Georgetown University. N.p., 12 Oct. 1985. Web. 14 Feb. 2014. <>.

Dieter, Richard C. “Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After its Re-instatement in 1976.” Death Penalty Information Center. N.p., July 2011. Web. 13 Feb. 2014. <>.

Ogletree, Jr., Charles J... “Black Man’s Burden: Race and the Death Penalty in America.” Oregon Law Review. Vol. 81, No. 1. The H.W. Wilson Company, Spr. 2002. Web. 13 Feb. 2014. <>.