Judicial Fallibility Problem – Death Penalty Essay

Death penalty is often the subject of controversy. Opponents of the death penalty argue that life imprisonment is an effective substitute, that capital punishment may lead to irreversible miscarriages of justice, or that it violates the criminal's right to life. Supporters believe that the penalty is justified (at least for murderers) by the principle of retribution, that life imprisonment is not an equally effective deterrent, and that the death penalty affirms the right to life by punishing those who violate it in the most strict form. While some arguments are about moral judgments, others are disagreements about empirical trends, such as whether the death penalty is a more effective deterrent than life imprisonment. Ethical debate of the death penalty can be split into two main philosophical contexts, a deontological (a priori) context and a consequentiality context. A priori argument can be further subcategorized into a right argument and a virtue argument. Legal debate also generally falls into prior argument based on legal text. Consequentiality argument can be largely reduced to utilitarian formula through what amount to costs or benefits of the death penalty in terms of human lives and welfare. The deontological objection to the death penalty asserts that the death penalty is totally not correct by its nature, mostly due to the fact that it amounts to the violation of the right to life, which should be universal. In philosophical debate, however, the virtue school tends to argue that the death penalty is also “wrong” on the ground that the process is cruel and inhumane. It brutalizes the society at large and desensitizes and dehumanizes participants of the judicial process. In particular, it extinguishes the possibility of rehabilitation and redemption of the perpetrator(s). Deon tic justification to the death penalty, on the other hand, argues that the death penalty is “right” by nature, mostly on the ground that retribution against the violator of another life or liberty is “just”. It naturally follows that not applying death penalty to heinous murder would be unjust. In the context of virtue, they point out that without proper retribution, the judicial system further brutalizes the victim or victim's family and friends, which amounts to secondary victimization. Moreover, the judicial process which applies the death penalty reinforces the sense of justice among participants as well as the citizens as a whole, and might even provide incentive for the perpetrator to own up to their crime.

Many argue that there are advantages of looking at capital punishment from a utilitarian perspective, that is, one which looks at costs and benefits for human welfare. The deontological debate helps to clarify the respective positions of the debate, but offers no way to reach consensus because each argument stands on different a priori ground. Similarly, legal argument can clarify a priori legal or constitutional grounds of the death penalty. However, it offers no insight over whether such law or constitutional clause can be justified on its merit. A utilitarian approach is attractive because the issue is more easily resolved through the examination of empirical evidence, such as evidence about the penalty's effectiveness as a deterrent. Opponents of the utilitarian approach argue that it is flawed for the very reason that it does not take into consideration the complicating ideas which deontology considers, such as the right to life or just retribution.

The death penalty is often opposed on the grounds that, because every criminal justice system is fallible, innocent people will inevitably be executed by mistake, and the death penalty is both irreversible and more severe than lesser punishments. The supporters of the death penalty point out that lesser punishments, including life imprisonment, can also be imposed in error and incarceration is also irreversible if the innocent dies in prison. Moreover, whether money is an acceptable compensation for long period of incarceration is a matter of subjective opinion. They also point out that, given significantly large number of people who are incarcerated rather than executed; it is more common for miscarriages of justice to occur in non-death penalty cases, though each individual execution is undoubtedly more severe, except arguably for a case where the innocent were incarcerated for his or her natural life. For supporters of the death penalty, failure for death penalty opponents to oppose life imprisonment invalidates their argument.

Opponents of the death penalty often argue that even a single case of an innocent person being executed is unacceptable. Most arguments about wrongful convictions proceed on the basis of empirical evidence and statistics. It is possible that many cases of innocent people being executed have gone undiscovered, as once an execution has occurred there is often insufficient motivation and finance to keep a case in the public eye. On the other hand, because in liberal democracies a suspect is considered innocent until proven guilty, the fact that a convict is exonerated and released from death row means merely that there is insufficient evidence to prove their guilt, rather than that they are necessarily innocent.

Some opponents of the death penalty believe that, while it is unacceptable as currently practiced, it would be permissible if criminal justice systems could be improved. However more staunch opponents insist that, as far as capital punishment is concerned, criminal justice is irredeemable. In addition to simple human fallibility, there are numerous more specific causes of wrongful convictions; for example: Suspects may receive poor legal representation.

Proponents of the death penalty argue that all these criticisms apply equally to life imprisonment, which imply that some innocents might have spent their entire life being incarcerated. Therefore, this would make the argument of substituting the death penalty with life imprisonment moot. Critics of the death penalty commonly argue that it is a violation of the right to life or of the “sanctity of life.” Many also hold that the right to life is a human right that exists independently of laws made by people. The proponents of the death penalty commonly counter that the critics do not appear to have a problem with a violation of the right to liberty, as in the case of incarceration as substitute. Therefore, they implicitly accept that exceptions can be made to natural rights. Therefore, the proponents view the critics' argument to be nonessential.

Right to life and liberty are also declared to be human rights by famous documents such as the United Nations Universal Declaration of Human Rights and the American Declaration of Independence, while actual U.N. treaties specifically exempt incarceration and the death penalty in certain circumstances, including serious criminal offence.

Opponents of the death penalty argue that the right to life demands that a life only be taken in exceptional circumstances, such as in self-defense or as an act of war, and therefore that it violates the right to life of a criminal if she or he is executed. Critics often hold that, because life is an unalienable right, the criminal cannot forfeit the right by committing a crime. Supporters of the death penalty point out those opponents do not actually consider rights to be inviolable. It is only the right to life which is specifically inviolable while other rights, such as right to liberty can be violated to the extent that someone can be forced to spend the entire course of natural life being incarcerated. Proponents of the death penalty argue that this is an arbitrary argument. The proponents insist that no right is absolute, and so can be forfeited especially by a criminal who violates the right of others. Locke, Kant and other enlightenment thinkers who originated the concept of human rights argued that people forfeit the right to life when they take life of another.

Cruelty: Opponents argue that it is inhumane, or even that it constitutes a form of torture. Those who make this argument commonly insist that, in addition to violating the right to life, the death penalty is also contrary to the right to be free from torture or inhumane treatment. This right is enshrined in the Universal Declaration of Human Rights and many other documents. Some arguments about the humaneness of the death penalty apply only to specific methods of execution. Of methods of execution currently in use the electric chair and the gas chamber are widely seen as producing great pain and suffering in the victim. Lethal injection has become widely used in the United States in an effort to make the death penalty more humane. However there are fears that, because the cocktail of drugs used in many executions paralyses the victim for a period before ending her or his life, victims may endure suffering not apparent to observers. The suffering caused by a method of execution is also often exacerbated in the case of “botched” executions. Amnesty International has highlighted lethal injection as the most frequently “botched” method of execution, noting practices such as crude “cut-downs” into prisoners' arms when a vein cannot be found. Medical staff, which might have expertise in minimizing, suffering, does not normally assist with executions, as this would be a violation of the Hippocratic Oath. Those who make this argument also insist that the knowledge of one's impending death causes tremendous psychological suffering. This suffering, exacerbated by the long periods often spent by convicts in the United States on death row, have together been described as the death row phenomenon, which is considered by some to be a form of torture.

The proponents of the death penalty point out that incarceration often produces severe psychological depression and that life in jail is often physically violent, which makes this type of argument for substituting death penalty with life imprisonment or long incarceration moot. A minority among proponents further argue that great suffering is somewhat desirable by the principle of retribution, by its deterrent effect or by other perceived advantages of capital punishment. Occasionally arguments from humaneness are made in favor of capital punishment. The political writer Peter Hitchens has argued that the death penalty is more humane than life imprisonment.

Discrimination: It is argued that the race of the person to be executed can affect the likelihood that they receive a death sentence. A recent study showed that just 44% of Black Americans support the death penalty. Death-penalty proponents counter this by pointing out that most murders where the killer and victim are of the same race tend to be “crimes of passion” while inter-racial murders are usually “felony murders”; that is, murders which were perpetrated during the commission of some other felony They argue that juries are more likely to impose the death penalty in cases where the offender has killed a total stranger than in those where some deep-seated, personal revenge motive may be present. The opponents of the death penalty also point out that capital punishment has also been used politically to silence dissidents, minority religions and activists. A major example of this is the People's Republic of China from which there are many reports of the death penalty being used for politically motivated ends. Proponents of the death penalty point out that some political prisoners sentenced to life imprisonment or long incarceration die in prison as well, often after long period of torture. Given that life imprisonment is proposed as substitute for death penalty, the proponents argue, this fact makes analogy irrelevant. They also point out that the debate could easily turn into more equitable application of the death penalty or democratic reform of political system, which may increase the support for death penalty. The proponents argue that the problem of racism or political system is falsely attributed to the validity of capital punishment itself.

Law, judiciary and the death penalty

Some argue, from the perspective of a simplified version of legal positivism, that whatever law passed through legislative process is “legal” and moral and ethical debate is futile. This leads to a consequentiality conclusion that whatever collective consensus achieved through the democratic process is “better” if not “just.”

Critics of the death penalty commonly argue that the death penalty specifically and explicitly violates the right to life clause stated in most modern constitutions and human right treaties. It violates sections 3 and 5 of the Universal Declaration of Human Rights. While it is not a legally binding document, the declaration served as the foundation for the legally-binding International Covenant on Civil and Political Rights which most of countries signed.

Supporters of the death penalty point out that section 3 of the declaration proclaims the right to liberty to be universal, which is violated by incarceration. Deprivation of liberty can also be seen as “cruel, inhuman or degrading treatment or punishment” as specified by section 5. Therefore, the supporters argue that the critics are taking the declaration out of context. The International Covenant on Civil and Political Rights specifically allows implementation of the death penalty and incarceration as a part of a criminal justice system.

Similarly, most modern constitutions contain right to life as a fundamental constitutional right, with varying degrees of exemption ranging from the explicit exemption of “except in case of serious crime or national emergency” to the vague exemption of “without due process” or “except in defense of public interest.” Consequently this makes the legal debate essentially an a priori argument based on legal text.

Rules of legislative construction

When the constitution does not explicitly exempt the death penalty from the right to life clause, the judiciary is required to interpret the meaning of the clause based on rules of construction. The most common method is plain meaning rule or Golden rule. This is based on strict textualism, which dictate that laws are to be interpreted using the ordinary meaning of the language of the statute. In this sense, right to life clauses establish a priori grounds for the prohibition of capital punishment except when it is used as a deterrent to murder. In jurisdictions which practice the death penalty, deterrence is the most common justification cited in the highest court. However, some jurists argue that this may not be the correct legal interpretation, because the plain meaning rule applies only to the extent that they do not produce an absurd or totally obnoxious result, such as removing any a priori justification of punishment. These jurists often advocate social purpose rule mischief rule or purposive approach which is loosely based on Originalism. Under this criterion, it is possible to go back to the sources outside of legal texts, such as the intention of the law makers or the meaning of the term during the original formation of the concept, which in this case often means 18th to 19th century Europe and America. The proponents of the death penalty may claim, citing such sources as Locke, or more appropriately Thomas Jefferson in the case of the US, that the original argument was that people form implicit social contracts, ceding their right to the government to protect natural rights from being abused. Therefore, protection from abuse is the basis of such rights and those who violate such rights automatically forfeit them. Therefore, an a priori case against punishment does not exist. Critics from legal formalism argue that such an approach might cause judges to inadvertently take sides in legislative or political issues which amount to “legislating from the bench”, and that the question is for the legislature to address, not the judiciary. On the other hand, advocates of this approach assert that, unlike modern judicial activitism which does not follow precedent, the limit is clearly set in terms of originalism and precedent. Therefore, the approach allows middle ground between possible absurdity of textualism and the danger of judicial activism.

Protection from discrimination, persecution, and cruel and inhumane treatment

The death penalty or a particular sentence of death may still be declared to be in breach of the constitution if it violates equal protection clauses or clauses prohibiting cruel and inhumane treatment. In the US the most commonly cited example is the disproportionate number of racial and economic minorities on death row. In legal terms, mere prevalence of certain minorities in death row or in the general prison population does not amount to the violation of equal protection, because it may simply be a result of these minorities committing more capital crimes. Rather, it must be shown that there is inherent fault in the system, that there was an implicit or explicit policy to persecute minorities or political opponents, or that the jury or judge's decision was shown to be slanted by their prejudice for “individual cases”. In the US it is generally considered among jurists that race does not fall into this category except for jury bias which would result in the reversal of conviction. Similarly, incompetent defense by court appointed public defenders is also a valid case for retrial and stay of execution. Similarly, killing, pain or psychological fear of killing cannot be a valid argument under the prohibition of cruel and inhumane treatment if the death penalty is declared constitutional. It must be shown that pain is inflicted for the purpose other than execution, such as torture. Then the court can declare that particular method of execution to be unconstitutional, but not the death penalty itself.

Fair trial: In legal terms, advances in forensic sciences, the existence of possible miscarriage of justice or some fault in the procedure cannot be an a priori argument for the unconstitutionality of capital punishment. Such arguments would lead to the absurd conclusion that the death penalty as well as any form of incarceration is unconstitutional, given that the innocents could be falsely incarcerated or worse, die in prison before being exonerated. However, particular fault in procedure or evidence can be used to overturn individual case of conviction, including a death penalty case. A particular system of judiciary process such as plea bargaining or the system of public defenders can be declared unconstitutional. However, these do not provide legal argument to declare the death penalty as constitutionally invalid.

Another potential miscarriage of justice associated with capital punishment is the role that judicial elections play in the sentencing process. If a death penalty verdict is appealed, some researchers believe that appellate judges who are up for re-election will be less likely to overturn a death penalty sentence because of the potential harm to their campaign. There is both evidence supporting and negating this theory as it continues to be an issue debated by legal scholars and theorists.

Deterrence, prevention: Some of the most prominent debates surrounding the morality of the death penalty deal with its consequences for individuals and society. Two central issues are first the effectiveness of the death penalty as a deterrent (or prevention) and the economic costs of its imposition. Many proponents of the death penalty argue that the death penalty is justified because it deters future crime, especially murders. While the death penalty does take life, they argue, this is outweighed by the many lives it saves. This is generally considered a utilitarian argument because it is based on consequences for human welfare instead of deontological considerations such as rights or just retribution. Utilitarian need not agree with the death penalty, however

The deterrence argument in favor of the death penalty is objected to on the a priori grounds that it does not even have retribution justification of a specific individual. In other words, critics argue that it implies that mistaken execution of innocents is regrettable but still justified if the overall effect of the death penalty still saves more lives. Some proponents of the deterrence argument do not dispute this, but some do on the grounds that if people know they might be executed for crimes they did not commit they might live in a state of fear; therefore, significant steps should be taken to avoid the execution of innocents.

The argument is that the threat of the death penalty deters potential murders or other serious crimes such as drug trafficking. In the pre-modern period, when authorities had neither the resources nor the inclination to detain criminals indefinitely, the death penalty or other punishments such as caning or hand decapitation were probably the only available means of prevention and deterrent. Opponents commonly argue that today's incapacitation or deterrent is equally well served by incarceration including life imprisonment. The proponents, in turn, argue that life imprisonment does not prevent murder within prison and that life imprisonment is a less effective deterrent than the death penalty. Some studies have shown a correlation between the death penalty and murder rates – in other words, they show that where the death penalty applies, murder rates are also high. This correlation can be interpreted in either that the death penalty increases murder rates by brutalizing society or that higher murder rates cause the state to retain or reintroduce the death penalty. However, the statistics arguments are misleading because statistics show that correlation does not equal causation and moreover, statistics do not show that life imprisonment or any other individual form of punishment deter murder.

It is difficult to conclusively demonstrate the existence of a deterrence effect. The opponent would invariably point to the death row inmate and argue that they are the “proof” that the death penalty does not work as a deterrent. However, the proponent can easily counter by pointing to a far larger number of murderers (many of them repeat offenders) who are serving life imprisonment or long sentences and argue that life imprisonment or long incarceration does not work as a substitute. In fact, this is the result of a sampling problem, where those who do refrain from committing crimes due to deterrent effect of the death penalty or incarceration automatically rule themselves out from the statistics. This means that it is almost impossible to prove the deterrent effect of the death penalty or incarceration by empirical demonstration.

Effect for economic perspective: Economic arguments are usually not the central issues in death penalty debates, there is an economic side of almost any issue, and the death penalty is no exception. Opponents of the death penalty point out that capital cases usually cost more than life imprisonment due to the extra court costs, such as appeals and extra supervisions. Proponents counter this argument by stating that the severity and finality of death as punishment demands that the extra resources be expended. In the US in particular, the accused is allowed to plead guilty so as to avoid the death penalty. This plea requires the accused to forfeit any appeal arguing innocence on material or procedural grounds. Furthermore, by waiving the threat of the death penalty, individuals can be encouraged to plead guilty, accomplices can be encouraged to testify against other defendants, and criminals can be encouraged to lead investigators to the bodies of victims. Proponents of the death penalty, therefore, argue that the death penalty significantly reduces the cost of the judicial process and criminal investigation. Quite a few opponents of the death penalty concede that the economic argument may be in favor of the death penalty, especially in terms of plea bargaining. However, they point out that plea bargaining increases the likelihood of a miscarriage of justice which should be counted as a cost.


A general overview of the judicial fallibility problem: Amnesty International, “Fatal flaws: innocence and the death penalty in the USA” (November 1998)

Death Penalty Information Center, Innocence and the Death Penalty

Barbara McCuen, “Does DNA Technology Warrant a Death Penalty Moratorium?” (May 2000)

Amnesty International, “Singapore – The death penalty: A hidden toll of executions” (January 2004)

Amnesty International, “Why Amnesty International opposes the death penalty”

American Medical Association, Code of ethics, section E-2.06 Capital punishment

Sorensen et al.:”Capital punishment and deterrence: Examining the effect of executions on murder in Texas.” Crime and Delinquency 45, 4: 481-493., 1999.

Death Penalty Information Center, Who supports the death penalty? (November 2004)

Amnesty International, “Human Rights in China in 2001 – A New Step Backwards” (September 2001)

Death Penalty Information Center, Facts about Deterrence and the Death Penalty

Joanna M. Shepherd, Capital Punishment and the Deterrence of Crime (Written Testimony for the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, April 2004.)

Martin Kasten, “An economic analysis of the death penalty” (1996); Michael Coles, “The Cost of Capital Punishment” is a dead link; use the Internet Archive link instead (August 2002) dead URL; Phil Porter, “The Economics of Capital Punishment” (1998). www.wikipedia.org