The Death Penalty: American Criminal Law Review Essay

There has been an intense public debate concerning capital punishment regarding how it enhances the functions of the criminal justice system. The core reason for the presence of a justice system in any society is rehabilitation of criminals and protection of members of society from those not rehabilitated by the system. Consequently, given that doing justice or deterring others is the ends of the penal system’s endeavours (Reynolds, 2005), the pronouncement of a death penalty becomes only one of one means to achieve these ends. This assumption therefore tasks the arguments against capital punishment to proving that it in fact does not achieve justice nor does it deter others. On the other hand, support for capital punishment must prove without reasonable doubt that why it effectively performs these functions. Consequently, this essay will focus on various reasons given to support or oppose the death penalty in order to make conclusions on the effectiveness of the method towards the achievement of both justice and deterrence of others from future engagement in acts punishable by similar sentencing.

The present arguments concerning the death sentence has been based on different beliefs about punishment of offenders. These beliefs on punishment through death penalty have generally been in the form of rehabilitation, incapacitation, retribution and deterrence. However, only retribution, deterrence, and incapacitation feature in the reasons given by those who support the death penalty (Radelet and Borg, 2000). This is because the penal system exercises rehabilitation with the aim of returning the offender back to society as a productive member and is often viewed as treatment in literature about incarceration. Therefore, arguments surrounding rehabilitation can only be made in opposition to the death penalty for it is not logical to claim treatment of the offender can be achieved through a death sentence given that the person will not be given a chance to exercise a changed attitude and behaviour in society


Deterrence as applied in the punishment of offenders is belief that penal system can stop crime through means that make punishment for various offences more severe than any potential gain from criminal activities. Deterrence works in two ways: it reduces the chances that offenders will go back to the same acts while also discouraging other from participating in similar acts by acting as an example to the public. Therefore, Proponents of the death penalty perceive passing the death sentence is the best method in exercising deterrence than other methods such as life imprisonment (Whitehead and Blankenship, 2000). It is my opinion that this method can be effective in deterrence of crime given that many criminals even those who are ready to commit murder fear death more than anything else. Therefore, those who are afraid of death might be deterred from committing crime when they consider the risk of death that can be inflicted by law and scheduled by the courts.

Radelet and Borg (2000), support death penalty being the most effective in deterrence of future crime arguing that people do not commit crime when they are sure they will be caught and punished. The authors also point out the importance of severity in deterring crime and it is my belief that the death penalty is the harshest stand to be taken on an offender which can increase the motivation to avoid a criminal acts. Further, proponents argue that death penalty is the most effective method of incapacitation since there is no chance that the offender can commit such a crime, as they cannot be around any other form of life after execution.

However, there are those who oppose the view that death penalty is an effective means of ensuring deterrence of future crime. This group propose other alternatives that are perceived as having the highest chances of deterring other people from committing similar or other offences such as life imprisonment. This argument is based on the belief that increased severity of punishment is effective up to a certain point where further increase of severity does not increase the deterrence benefit anymore (Radelet and Borg, 2000). Radelet and Borg (2000) argue that research on capital punishment for offenders convicted of homicide had indicated capital punishment is not more effective than imprisonment. Criminologists and law enforcement officials have also supported the view that death penalty is not the greatest deterrent to criminal violence.


Retribution as a reason for supporting death penalty is based on the belief that justice can only be served when the crime committed is punished by execution of the offender. I believe that those who commit heinous and premeditated murder deserve to die since they do not respect the life of others. Others forms of punishment even life imprisonment without parole for the heinous and premeditated murder cannot serve justice to the crime committed (Radelet and Borg, 2000). The friends and families of the victim will not feel justice has been served when they know they have lost their loved ones but the perpetrator of such act continues to live. Therefore, although I am aware that the by passing a death penalty to the offender does not restore the life of the victim, the family and friends of the victim will at least be consoled by the fact that justice has been served for the loss of a loved one. Whitehead and Blankenship (2000) asserts the death penalty is among the best means by which the emotions of the family of a victim can be taken care of given that many of them are outraged when the murderer does not receive a death sentence.

Bakaradze (2012) state the call for death penalty based on retribution has its background in religious values especially the existence of the historical notion that it is appropriate to take an eye for an eye or a life for a life stance when dealing those who commit the most heinous and predetermined murder. Further, the author asserts that even when the passing of death sentence does not restore the status of the victim to that of before the murder’s crime, death penalty is a form of closure to the family of the victim while also ensuring the murderer does not commit the act again. Radelet and Borg (2000) also notes a majority of people see retribution is most suitable reaction to aggressive crimes such as heinous and premeditated murder. The author also quotes Christian Biblical verses such as Leviticus 24: 17-20 that support the notion that punishment must fit the crime committed. These Biblical verses supports retribution as the reason for capital punishment, but, Radelet and Borg (2000) add that it is only crimes involving murder that can be punished by death punishment.

However, Radelet and Borg (2000) draw attention to the fact that there are those hold the view that the death penalty offers less comfort to the family of the victim than it has been thought. The authors argue that when concentration of resources is on the death penalty for the perpetrator of violent crime, the family of the victims are neglected. Therefore, part of the reason for death penalty should answer the question; how best can the emotional state of the families of victims of violent crime be taken care of? This is because it can be more beneficial to the remaining members of the victim’s family when resources are channelled towards offering support such as counselling or financially in cases where the victim is a sole or main breadwinner. Further, Radelet and Borg (2000) argue having the capital punishment option in the constitution increases the outrage felt by those close to the victim especially when the court does not pass the death penalty sentence during judgement. This is because family members will feel the offender’s life has been perceived as more valuable than that of the victim when the judgement does not result in capital punishment.


Incapacitation is another reason for supporting the justification of the death penalty given its ability to keep offenders under a strict state control that ensures there is a minimal chance that an offender can commit future criminal acts. Support for incapacitation is based on the argument that the cause for crime strictly lies within the perpetrator in addition to the perception that past misbehaviour is the best forecaster of future offence. Further, the argument for incapacitation is based on factors such as the offenders past record, and the recidivistic characteristics of the behaviour and the offender as well as the impulsivity of the offender (Tangney, Baumeister and Boone, 2004; Darley, Carlsmith, and Robinson, 2000). Although there are other means of incapacitation such as house arrest, probation, intensive supervision and imprisonment, it is my belief that death penalty can effectively take care of the recidivistic nature of a violent crime.

Any form of incapacitation that does not totally remove the offender from society cannot guarantee they will not commit the offence again. My argument is because even when in prison, the offender still interacts with the officers in charge of the facilities in addition to fellow prisoners. Offenders who have taken life should not be near any other form of life as they are a danger to others including those they are locked up with the correction facility. Further, there if a vicious murderer is left to live even through life imprisonment, there is a chance even if very remote that such as person can get out of the facility to perpetrate another murder on innocent victims. I see death penalty as the only option that guarantees a hundred percent that the offender will not commit further acts of violence against humanity (Radelet and Borg, 2000).

Opposition to the view that death penalty is the only effective measure that ensures the offenders has been challenges by studies that have been conducted to determine how many offenders actually goes back to their previous criminal activities. There are researchers who argue that the risk of repeat murder by those who serve prison sentence is very low and that this group of offenders actually make better adjustments in prison than other offender (Radelet and Borg, 2000; Sigler, 2003). Radelet and Borg (2000) argues that of all the offenders whose death sentences were changed in 1972, it is only approximately one percent that committed murder again, but, the author notes this is a similar percentage to those serving death row sentences that were later found to be innocent. Therefore, the author points out that by arguing that death penalty is the best method of incapacitation, it means that a hundred convicted prisoners are executed because statistically one might go back to repeat the crime committed. The author argues against death penalty especially because prison reforms have made it virtually impossible for those convicted of homicide to repeat murder given the elimination of parole for this group of offenders.

Opposition to Capital Punishment

There are also those who out rightly oppose the existence of death penalty in the penal system with various reasons being cited for why it is not an appropriate form of punishment. One of the most common reasons presented by those in opposition of death penalty is based on morality. A major claim by those in favour of the abolition of the death penalty is that the practice exhibits immoral and uncivilized standpoint of dealing with the punishment of violent offenders. This view is especially based on the belief that it is not right for the penal system to react with violence against violence in addition to the view that the death penalty is a cruel form of punishment (King, 2006).

Further, there are administrative concerns that have been highlighted as reasons why the death penalty needs to be abolished especially being hinged on the issue of convicting an innocent person. There have been instances where innocent individuals have been found guilt-ridden for crimes they had not committed. In cases involving violent offences, the innocent person ends up being executed for the wrongs they did not commit (Lambert and Clarke, 2001; Radelet and Borg, 2000). Although this is a strong argument, against the death penalty, it is my argument that the abolition of capital punishment should not be made on the basis of the fact that there is a risk of executing the innocent. Rather, efforts should be directed at ensuring the system is error free by concentrating on the quality of evidence that proves without any reasonable doubt that the convicted person did in fact commit the crime they are being charged with.


The discussion of death penalty brings to fore a lot of debate about the effectiveness of the punishment in giving justice to all the parties involved especially the family of the victim and the offender. While death penalty does not restore the status of the victim of murder to the initial status nor does it rehabilitate the offender, it is among the most effective measures of ensuring the perpetrator does not commit the crime again while also acting as deterrence to others who might be tempted to act in a similar manner. Arguments by proponents of death penalty have basically been confined to reasons surrounding deterrence, incapacitation and retribution although there are also counterarguments that have shown the limitation of this form of punishment due to various factors. However, this limitations does not mean the death penalty is not effective or it is not the best punishment for the offenders especially when considering justice and deterrence as the principal ends that the penal system aim to achieve.

Even when a number of studies have indicated that death penalty might not deter new forms of violence by others, the society can rest assured that the one perpetrator has been removed permanently from society. Other forms of opposition to capital punishment such as based on the risk of convicting and executing an innocent person can be addressed by ensuring the criminal justice system is able to eliminate the available margin of error as much as possible so that all those convicted are those that deserve the penalty. In conclusion, it is my belief that death penalty should not be abolished as it lays an important role as a warning to others not to commit violence against others.


Bakaradze, E. (2012). The Eighth Amendment of the US Constitution versus Death Penalty as a Form of” Cruel and Unusual” Punishment. Journal of Social Sciences, 1(1), 57-65.

Darley, J. M., Carlsmith, K. M., & Robinson, P. H. (2000). Incapacitation and just deserts as motives for punishment. Law and Human Behavior, 24, 659–683.

King, R. C. (2006). No due process: How the death penalty violates the constitutional rights of the family members of death row prisoners. Public Interest Law Journal, 16, 195-253.

Lambert, E., & Clarke, A. (2001). The impact of information on an individual's support of the death penalty: A partial test of the Marshall hypothesis among college students. Criminal Justice Policy Review, 12(3), 215-234.

Sigler, M. (2003). Contradiction, Coherence, and Guided Discretion in the Supreme Court's Capital Sentencing Jurisprudence. American Criminal Law Review, 40, 1151-1194.

Radelet, M. L., & Borg, M. J. (2000). The changing nature of death penalty debates. Annual Review of Sociology, 26(1), 43-61.

Reynolds, T. (2005). Ethical issues: western philosophical and religious perspectives. Stamford: Wadsworth Pub Co.

Tangney, J. P., Baumeister, R. F., & Boone, A. L. (2004). High self-control predicts good adjustment, less pathology, better grades, and interpersonal success. Journal of Personality, 72, 271–322.

Whitehead, J. T., & Blankenship, M. B. (2000). The gender gap in capital punishment attitudes: An analysis of support and opposition. American Journal of Criminal Justice, 25(1), 1-13.