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Arguments For and Against Capital Punishment

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  • 0:02 History of the Death Penalty
  • 2:25 Arguments For
  • 5:48 Arguments Against
  • 8:48 Lesson Summary
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Lesson Transcript
Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

The use of capital punishment in the United States has fluctuated throughout the years. The death penalty is a controversial criminal law topic. This lesson explores some of the popular arguments for and against the use of capital punishment.

History of the Death Penalty

By the time the colonists settled what would become the United States, British law allowed capital punishment for well over 200 different crimes, including stealing or cutting down a tree. Note that capital punishment is the infliction of the death penalty for a criminal offense.

The new states began whittling down the number of capital offenses. By the late 1700s, some states allowed the death penalty for only first-degree murder and treason. By the late 1800s, a handful of states got rid of the death penalty altogether. However, most states kept capital punishment. Public opinion and the use of the death penalty fluctuated throughout the next century. The 1930s saw an all-time high rate of executions, whereas the 1960s saw an all-time low.

A defining moment in death penalty history came in 1972, with the Supreme Court case of Furman v. Georgia. This is the court case that struck down all 40 death penalty statutes that were in operation at that time. The decision was based on the Eighth Amendment, which prohibits cruel and unusual punishments.

This decision commuted the sentences of over 600 inmates sitting on death row to life in prison and suspended the death penalty in all states that used it. But not because the Supreme Court thought it was cruel or unusual to put someone to death! Instead, the Supreme Court found that the statutes were too arbitrary and subjective. In other words, one offender could commit a heinous murder and not receive the death penalty. Another could commit a less egregious homicide and be sentenced to death. The statutes had to be rewritten in order to give juries better guidelines.

Most states rewrote their statutes within the next few years and still use the death penalty. Many others, however, have since abandoned the use of capital punishment. At this time, capital punishment is legal in 32 states.

Arguments for Capital Punishment

Notice that while there's still significant support for the death penalty, times have certainly changed. Eighty percent of participants in a 1994 Gallup poll said they were in favor of the death penalty. Contrast that with just 60% of people polled in 2013.

Here are some of the most popular arguments in support of capital punishment:

1. The punishment fits the crime.

One important goal of criminal punishment is based on retaliation, or the historical view of 'an eye for an eye.' Many people, therefore, believe that the only just penalty in exchange for a willful murder is the death penalty. In general, criminal punishments are designed to best suit the seriousness of the crimes. That's why we have small penalties for property offenses, like shoplifting, and large penalties for personal crimes, like kidnapping.

2. The death penalty serves as an important bargaining point.

As many as 90% of all criminal cases are settled by plea bargaining rather than through criminal trials. In capital cases, this usually means offenders are offered life in prison in exchange for a guilty plea. This allows the offender to avoid the death penalty and the prosecution to avoid an expensive and time-consuming trial.

3. Victims' families largely support the death penalty.

Certainly not all victims' families support the death penalty, but many report that the execution of the offender helps bring closure and alleviate some grief.

4. The death penalty is administered as humanely as possible.

In an effort to comply with the Eighth Amendment's provision against the use of cruel and unusual punishment, most everything about the death penalty has evolved. The crimes eligible for the death penalty have been severely limited and the selection process has been revamped. Even the means of execution has changed over the years. We've used hangings, gas chambers, firing squads, electric chairs and lethal injections. Note that several states currently have a moratorium on executions while the effectiveness of a new lethal injection concoction is investigated. This should help reassure those that feel the death penalty is barbaric or outdated.

5. DNA testing greatly increases prosecution accuracy.

Some experts argue that as many as four percent of those people sentenced to death between 1976 and 2004 were innocent. However, recent developments in DNA testing and its wider availability vastly decrease the chances of a wrongful conviction. Of course, this assumes the presence of collectible and usable DNA evidence from the crime scene. Still, these newer developments should help subdue most fears that capital punishment is too risky and many innocent people are sentenced to death.

Arguments Against Capital Punishment

Now let's take a look at arguments against capital punishment. Public opinion has shifted more toward this stance, with only 16% of participants in a 1994 Gallup poll reporting they were not in favor of the death penalty. However, 35% of people polled in 2013 reported they were not in favor of the death penalty.

These are some of the most popular arguments against capital punishment:

1. The death penalty has no rehabilitative effect.

One important goal of criminal sentencing is to rehabilitate the offender so that the offender can contribute to society in a meaningful way. Though many argue that murderers cannot be rehabilitated, even those serving life sentences can take classes and hold jobs while in prison.

2. The death penalty is not a deterrent.

An older justification for capital punishment hinged on the hope that people would be dissuaded from committing capital crimes. However, newer studies show that most capital crimes are committed in the 'heat of the moment' or the offender is impassioned in a way that can't easily be deterred. For example, nearly 15,000 people were murdered in 2012, showing that thousands of people simply aren't effectively deterred by the threat of capital punishment.

3. The current lethal injection concoction is ineffective.

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