Introduction
Capital punishment has been a controversial issue in legal, political, and public discussions in the United States for decades, with opposing sides exchanging arguments without either position taking a definitive nationwide leadership. Various evidence-based and theoretical data either support the death penalty’s effectiveness in preventing crimes or argue against its inhumane nature and lack of measurable impact (Berry, 2020; Jou & Hebenton, 2020). Both sides present debatable arguments that sustain a long-lasting political and social discussion that extends beyond criminology into moral philosophy, politics, and economics.
This essay focuses on the legal and practical aspects of capital punishment, with particular attention to the American legislative tradition and the Constitution. The discussion will center around the constitutionality of the death penalty, the evolution of its interpretation in light of larger societal changes, and its role in fulfilling the main purposes of punishment. Potential counterarguments will also be addressed and discussed to reaffirm the essay’s central argument. The argument is built upon a firm belief that capital punishment is ineffective in its stated goals and flawed in several aspects, bringing more harm than good to American society.
This essay will build on scholarly evidence and legal practice to support this idea through three key points. First, capital punishment is unconstitutional since it constitutes an “unusual and cruel” punishment under the Eighth Amendment (U.S. Const. amend. VIII). Second, the death penalty compromises the main purposes of punishment, including retribution, rehabilitation, and deterrence. Third, capital punishment does not fulfill its intended goal of reducing the number and severity of crimes.
These key points can be unified in a single arguable thesis. That is, the death penalty is an unusual and cruel punishment that contradicts the American Constitution and fails to fulfill the purposes of criminal punishment, and should thus be completely abolished.
The Unusualness of Capital Punishment
The Eighth Amendment to the American Constitution prohibits cruel and unusual punishments without providing clear metrics to evaluate a punishment as such, thus relying largely on the interpretation of a particular punishment, such as the death penalty. First, it is worth examining the second part of the definition, specifically what it means for a punishment to be unusual. Berry (2020) argues that a reliable metric, in this case, arises from the frequency with which a particular punishment is enforced, which is increasingly low for capital punishment.
A landmark Furman v. Georgia case set the crucial precedent for this interpretation, concluding that the rarity with which states imposed capital punishment often made it arbitrary or discriminatory (Furman v. Georgia, 1972). The argument is that the rarity of the punishment’s use reflects the maturity of American society and the criminal justice system, leading to a vital reinterpretation of the Eighth Amendment.
The first step in the evolving standards-of-decency jurisprudence, later developed by the Supreme Court, is to examine state legislative practices regarding a particular punishment to determine whether it is unusual. This conceptualization of unusualness is majoritarian in nature, embodying the key principles of a democratic society and allowing legislative and criminal justice practices to follow larger societal changes.
Since 1979, seven American states have completely or partially abolished the death sentence for this reason, bringing the total number of abolitionist states to 22 (Berry, 2020). This reduction in the acceptability of the death penalty indicates that societies’ evolving standards shape their understanding of human decency and justice. Furthermore, the overwhelming reliance on courts’ case-by-case judgments removes the element of predictability from the enforcement of the punishment, thereby enhancing its unusualness (Furman v. Georgia, 1972). Within this updated framework, capital punishment is viewed as rare and unusual and thus potentially unconstitutional.
The Cruelty of Capital Punishment—Rehabilitation and Retribution
The cruelty of the death penalty stems from its idea of irrevocably taking a person’s life. This observation is especially problematic considering a non-zero possibility of a false accusation, introducing a chance of an unfair taking of an innocent person’s life by the state. For example, a person may be wrongfully convicted because of inadequate legal representation, police and prosecutorial misconduct, mistaken testimony, racial or other prejudice, and more (Death penalty and innocence, 2023).
Essentially, it renders the convicted person unable to defend themselves after the execution and the justice system unable to return control over their life to the wrongfully executed. As a result, one of the main purposes of punishment, rehabilitation, is compromised. As Yost (2019) argues, the impossibility of returning control over one’s life makes the death penalty irrevocable and thus cruel compared to most other types of punishment.
Furthermore, when only rightful convictions are considered, applying the second step in the evolving standards-of-decency framework reveals that capital punishment is often excessive and not justified by some legitimate purpose (Berry, 2020). As a result, the retributive function of the punishment becomes disproportionate, making the punishment itself unnecessarily cruel. As a result, the punishment is both unconstitutional and unfit to fulfill the rehabilitative and retributive functions of criminal justice.
Critical Perspectives
The Deterrence Argument
Critics of the abolitionist argument refer to the morally ambiguous and nuanced nature of the death penalty, which makes the questions of its abolition, use, and retention impossible to judge from a single perspective. In their view, aside from rehabilitation, capital punishment successfully fulfills other purposes of punishment, such as deterrence and retribution. While the latter has been shown to fail in the face of the death penalty’s cruel and unusual nature, the former requires a careful examination of factual evidence.
As Justice White concluded in Furman v. Georgia (1972), the infrequency with which capital punishment is imposed renders its potential service to criminal justice negligible and overwhelmed by its unconstitutionality. In addition, no substantial evidence supports the claim that capital punishment leads to greater crime deterrence, especially in its current form in the United States (Berry, 2020). On the contrary, it may lead to increased concealment of certain crimes, creating a false impression of a positive effect. In essence, the primary anti-abolitionist argument relies on premises that lack factual support—contrary to the growing number of abolitionist states.
The Democratic Argument
While the U.S. Constitution and the larger criminal justice system provide firm ground for an abolitionist perspective on capital punishment, critics may cite examples from other contexts to argue in favor of preserving the status quo. For example, Jou and Hebenton (2020) offer a comprehensive discussion of public attitudes toward capital punishment across different societies, with a focus on Taiwan. This perspective views retribution for specific crimes as a potential argument in favor of preserving capital punishment, allowing a proponent to argue that the question should be answered through a democratic process (Jou & Hebenton, 2020).
From this point of view, a supporter of capital punishment can refer to cross-national differences in its perception as the ultimate measure, effectively undermining the unconstitutionality argument. However, legislators and criminal justice professionals’ primary duty to a democratic society is to act in the society’s best interest, based on factual evidence rather than a populist agenda driven by baseless assumptions and beliefs. Social sciences and expert opinions, in addition to general principles of fair and humane justice, are sufficient to refute such arguments as insubstantial and misleading.
Conclusion
Fruitful discussions around capital punishment center around either legal deliberations or empirical evidence from its implementation. The United States is a unique case in this regard, with the Constitution and state legislatures often providing conflicting interpretations. In contrast, a rich history of court cases serves as a basis for legal discussion. In terms of legislation and constitutionality, the permissibility of the death penalty is assessed through the lens of the Eighth Amendment and different understandings of cruel and unusual punishment.
Many experts agree that the irrevocability and infrequency of capital punishment render it unconstitutional, particularly in light of evolving social standards of decency and justice (Berry, 2020). Moreover, no empirical data support the claim that capital punishment promotes crime deterrence, while its inability to sustain rehabilitation and achieve humane and fair retribution is well established (Berry, 2020; Yost, 2019). The contrarian arguments thus fall short of proving the adequacy of the death penalty, which is evident in the increasing number of abolitionist societies. The ultimate conclusion is that capital punishment is, indeed, a cruel, unusual, ineffective, and unjust punishment that must be completely abolished.
References
Berry, W. W. (2020). Unusual state capital punishments. Florida Law Review, 72(1), 1–47.
Death penalty and innocence. (2023). Amnesty International.
Furman v. Georgia, 408 U.S. 238 (1972).
Jou, S., & Hebenton, B. (2020). Support for the death penalty in Taiwan?: A study of value conflict and ambivalence. Asian Journal of Criminology, 15, 163–183.
U.S. Const. Amend. VIII.
Yost, B. S. (2019). Against capital punishment. Oxford University Press.