Death Penalty (Controversial Legal Issue Addressing the United States Courts) Essay

Death penalty is controversial legal issue in USA that has existed for decades. The society members have different perspectives over the issue, but the majority based on research still support it. The U.S constitution and federal government support capital punishment, but leaves complete autonomy for individual states to practice or not. Proponents argue that the punishment is essential for crime deterrence, retribution purposes and delivering justice. The constitution places limits to the punishment under the 5th, 8th and 14th amendment to prevent cruel and unusual punishment, and execution of the mentally retarded and under age persons when the crime was committed. In opposition, it has not only led to miscarriages of justice, but incurs huge costs and undermines criminal rehabilitation. The final section is a reflection of the issue. It addresses the harsh lethal method of execution and how it violates the Constitutional amendment, brings an insight on the benefit of DNA scientific techniques and proposes for life imprisonment without parole.

Keywords: Cruel Punishment, Capital Crimes, Criminals, Constitutional support, Crime Deterrence, Cost, Criminal Rehabilitation, Miscarriages of Justice, Lethal Injections, Execution Methods, Scientific Methods, Justice and Torture, Life Imprisonment


Capital punishment has been practised in United States for many centuries now. While majority of the countries around the world revoked the punishment and replaced it with life imprisonment, USA among other nations like republic of China and Saudi Arabia still retain death penalty. It has remained a controversial issue, but still with huge support from the government and the public. However, during the 1970s, for the first time in USA, death penalty was suspended from 1972 on the grounds of cruel and unusual punishment that violated the 8th and 14th amendment, before resuming in 1976 (ACLU, 2012).

Argument in favour


Capital punishment has been held constitutional in the United Stated for the past two centuries except for the period between 1972 and 1976. First, the framers of the U.S constitution intended for death penalty clearly defined crimes. Under the criminal codes, there are forty one punishable crimes by death, which based on these circumstances the federal government can convict and when proven guilty, an individual’s life taken. The enacted legislation in the 1st congress of the U.S and subsequent fifth, eighth and fourteenth amendment all shaped and contemplates of the existence of the penalty in U.S and proves its validity per se (“The Death Penalty,” 2007). The amendments aim to impose limits, prevent violations while promoting fairness and humane punishments. In line with this states have been given power to either ratify or reject capital punishment in their jurisdiction area. While USA records a high number of capital crimes, more than half of the states have a death penalty while an increasing minority in the last three decades revoked it.

Deterrence of crimes

This is a major justification for death penalty in USA, which is based entirely on an economical approach. It is right to state that for every criminal endeavour, a normal executor has to weigh the costs over the benefits of his/her actions. With the death penalty as the highest cost of the criminal actions upon detection and conviction, the potential criminal is deterred from performing such capital crimes. According to Bowen, “the idea is to deter future murders and reduce crimes by providing lethal consequences for perpetrators” (2005, p. 60). Though the deterrent effect is massively refuted by abolitionists to reduce homicide crimes, no doubt it has helped conscious people to refrain from capital crimes. Based on pre and post moratorium murder comparisons in both the state and nationals levels, Dezhbakhsh and Shepherd found that “executions deter murders, and murder rates increase sub-stantially during moratoriums” (2006, p. 532).

Arguments Against

Miscarriages of justice

The fact that USA has executed hundreds of people for capital crimes draws another issue of innocent citizens on death row, not to mention those already executed without sufficient representation and evidence to prove their innocence. Dieter confirms that 69 people have been released from death row from 1973 and 23 released since 1993 after sufficient evidence of their innocence emerged (1997). The system of capital punishment in USA has proved to contain a lot of human fallibility, right from misinformation, use of false, coerced and contradicting testimonies to miscarriage of justice in the hands of the jury. Between 1900 and 1985, a survey conducted by Bedau and Radelet revealed that 25 people executed were innocence of capital crimes (Pojman, 2004). The recent cases of Troy Davis and Todd Willingham, demonstrate how inconsistent testimonies and insufficient evidence paves way for the conviction and executions of innocent people.

Costly and undermines criminal rehabilitation

Proponents of the punishment argue it’s a way of delivering justice to victims and the family. However, what justice is given to a dead person, they cannot feel or demand it themselves. Unto the families’ members of the victims, it is not about retribution as the most proponents would argue, but an issue mixed with vengeance. While the criminal justice system serve to rehabilitate criminals and prevent repetition of the crimes, death penalty would not serve to reform the person once the offender is dead. It’s not only inconsistent with the punishment but “illogical to argue executing people treats them for the underlying causes for their criminal behavior” (Lambert, Clarke & Lambert, 2004, p.5). Similarly, a lot of government resources are spent in the process of delivering capital punishment from courts hearings and trials, the juries, defence and prosecuting counsels to law enforcement. A single death penalty case has numerous countless high costs compared to non-capital case. For example, Spangenberg and Walsh provided information on a $1.4 million compared to $ 602000 costs (as of 1989) of a death penalty trail and 40 years imprisonment in New York respectively (1989). The prices are quite high in the modern times, which differ according to states, least costing the citizens’ taxes.

Reflections and possible solutions

Death penalty and life imprisonment

The American public is already in a divided state over the capital punishment. What the federal and States’ government uphold is not the very desire for the individual citizens. Due to the diverse cultures, religious backgrounds and legal systems of the States, there is much division on the issue. About 31 states recognize death penalty laws, however only 13 of them actively implement them, while the other 18 are dormant (rarely been used for decades); other 18 states and district of Columbia have no death penalty (Garland, 2014). After death penalty reinstatement in the U.S. after the mid-70s, states tried to rewrite their laws; some went from enactment to abolishment and since increased. Death sentence seems to make no sense any more given the alternative of life imprisonment without parole.

Death penalty is not about to change in the USA, especially as a move by the federal government and what the constitution and Supreme Court upholds. Though the public support and number of death sentence has been declining gradually, survey indicates that the majority massively support the punishment. For murder crimes, 2/3s of Americans still support capital punishment but also an increasing number (48 % as of 2006) proposing for life imprisonment without parole (Dieter, 2007). Most likely death penalty may not deliver justice or retribution, but incarceration for life and criminal’s loose of freedom/rights could have rehabilitation effect.

Harsh methods of execution

Most of the executions conducted demonstrated existing defects for the current methods used. Experiences of those who witnessed executions point out cases where some criminals’ death had to be suspended for what emerged to be torture. States moved from gas chambers to lethal injections. However, most execution process as that of Joseph Wood in Arizona, which took almost two hours, after 15 injections and the struggle to death demonstrate the inhumane and cruel deaths (Brumfield & Castillo, 2014). Though methods have changed over time from hanging, gunshot, gas chamber to lethal injections, it does not change that death penalty is an ancient barbaric practice carried on into the modern times. No doubt that most executions have high chances of violating the eighth amendment. There is no such concept as a humane killing when chances of botching in execution occur.

Costs, scientific evidence and justice

It turns out that since the advent of scientific techniques in gathering evidence, sentences to death declined and innocent people of capital crimes were released from death rows or given lesser punishments for their part in crime. DNA method has enabled matching of criminals to physical evidences found on the murder victims’ body or on tools used. It is because of such scientific methods that miscarriages of justice have declined over the years. Similarly, it is much cheaper for the government to imprison the capital criminals than perform death penalties. The cost incurred for execution processes can be saved and used for rehabilitation for capital and non capital criminals or further development in the society.

Reference List

ACLU. (2012, December 11). The Case against the Death Penalty. Retrieved from

Bowen, J. L. (2005). The Categorical Imperative of a Confucian Evil Demon in America. Lincoln, NE: iUniverse.

Brumfield, B., & Castillo, M. (2014, July 25). Mc Cain: Prolonged Arizona Execution was Torture. Retrieved from

Dezhbakhsh, H., and Shepherd, J. M. (2006, July) The Deterrent Effect of capital Punishment: Evidence from a Judicial Experiment. Economic Enquiry 44 (3): p. 512-535. Retrieved from

Dieter, R. C. (1997, July). Innocence and the Death Penalty: The Increasing Danger of Executing the Innocence. Retrieved from

Dieter, R.C. (2007, January 29). The Status of Death Penalty in the United States. Retrieved from

Garland, D. W. (2014, May 28). You Asked: Why does the US have Capital punishment? Retrieved from

Lambert, E. G., Clarke, A., & Lambert, J. (2004). Reasons for Supporting and Opposing Capital Punishment in the USA: A Preliminary Study. Internet Journal of Criminology.

Pojman, L. (2004). A Defense of the Death Penalty. Retrieved from

Spangenberg, R. L. & Walsh, E. R. (1989, January 11). Capital Punishment or Life Imprisonment- Some Cost Consideration. Loyola of Los Angeles Law Review, 23 (45): p. 45-58.

The Death Penalty is Constitutional. (2007, June). Retrieved from