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The death penalty is one of the most passion-driven issues of our time. Most of the rhetoric surrounding it is filled with religious or emotional concerns that drown out many of the more rational arguments. But we can, instead, decide this issue on a rational, unbiased framework. Only three assumptions are required from the beginning:

1. We will assume here that capital punishment is, in its nature, neither patently evil nor absolutely necessary. The ideas presented will assume the decision is for the present day within the United States. Other times, countries, and circumstances may change the matter, warranting a different policy.
2. Killing of any kind requires a very high bar of justification. We, therefore, place the burden of evidence on capital punishment's proponents, not on those who wish to stop it. Without a strong enough rational case, the decision defaults to the abolishment of the death penalty.
3. The logic of the justification must be generally understood and accepted. This is not to say that the reason's conclusion itself is accepted, only that its logic is valid. If anyone wishes to question a statement of fact given here, they can do the research themselves, or (sigh) ask me for a reference. Proper referencing is beyond the scope of this essay. If the reader merely acknowledges that my conclusion is valid only if my facts are accurate, that is enough for me.

Non-Rational Arguments

Many reasons given for support of the death penalty can neither be verified nor disputed on any basis other than opinion or conviction. I call these "non-rational" arguments because they don't defy logic as "irrational" arguments do. They simply don't use logic at all. Instead, they are based on ideology: emotional or religious notions that cannot be confirmed or refuted rationally. The gist of these is retribution. Many words are used in place of "retribution," such as "justice," "atonement," or "deserve." However, the heart of the argument is the same: the belief that the taking of a life (or some such crime) requires us to take the life of the murderer, whether for their good or the good of society. In the case of the killer, the only "good" that may be implied is the good in the afterlife, and such an argument is easily dismissed here, since it cannot be verified. In the case of society, its "good" must be rationally demonstrated rather than accepted on principle. And vengeance or "payback" is baseless, since these are themselves subjective and non-rational "goods."

I have, as a Christian, a whole slew of non-rational reasons why capital punishment should be abolished. For example, I believe that the admonition to forgive our enemies challenges us to move away from retribution. However valuable such non-rational ideas on both sides may be, they are rarely productive in the realm of public policy. Consequently, we will put them aside. I mention them only because they are so prevalent, and to show that they have no place for the sake of our criteria.

Deterrence

Analysis of the deterrent effect of capital punishment versus the deterrent of lifelong imprisonment in the modern U.S. has consistently shown it to be unsubstantiated. That doesn't mean lack of deterrence has been proven, only that study after study has failed to demonstrate any measurable deterrent effect. Of course, it does deter the person executed, but since secure life imprisonment does the same, this cannot be held up as a defense of capital punishment.

Also, contrary to the glut of macho movie depictions, those cases where inmates kill almost never involve "lifers" in high security prisons. Overall, modern developments in U.S. legal systems and technology have dramatically decreased the chance of an offender escaping or further harming others. And these advances have not given criminals advantages proportionally. While banks use the latest security and fraud-prevention methods, criminal "masterminds" and "super-thieves" are rare indeed off the big screen.

Regarding the concern that "bleeding hearts" will release violent criminals rather than keeping them locked up: this may be a good argument for mandatory prison sentences, but it does not bolster the case for death, since the implied choice is fallacious. Letting prisoners go and killing them are not the only two options available.

Cost of Incarceration

Some believe the cost of incarcerating capital criminals would be too high were we to abolish the death penalty. The instant reaction from the opposition is horror that we would quantify the value of an inmate's life in dollars. Such a reaction to this very valid concern is unjustified. Like it or not, every dollar we spend makes these judgments, if only implicitly. With limited funds and unlimited good causes, this concern is moral and practical... and unfounded. In the U.S., the overall cost of capital punishment far exceeds the aggregate cost of incarceration for life without parole, and no legal change short of amending the Constitution is likely to change it.

Conviction of the Innocent

By itself, this would not be a very good argument against capital punishment, since there is no evidence that innocent people are killed while their innocent life-sentence counterparts are eventually set free. But the reality brings in another chilling factor: an alarming number of those sentenced to death have eventually been released due to later evidence of their innocence, while the percentage is not nearly as high among lifers, even when adjusting for the amount of money and scrutiny spent on defenses and appeals. In short, juries are more likely to convict an innocent person when the likely sentence is death.

Unequal Conviction of Minorities & the Poor

A disproportionate number of racial minorities and the poor are sentenced to death, while white and/or affluent perpetrators have received lesser sentences for the same crimes. The innocent people being released from death row are disproportionately Black or Hispanic, and poor. In Florida during the 1980s, 47% of Blacks who killed Whites were sentenced to death, while not a single white person convicted of killing a black person was sentenced to death. And the numbers in other states aren't much better. Of course, such inequality exists in other sentences. But given the gravity of capital punishment, can we not argue that this should at least be a mitigating factor in our decision?

Escape & Extradition

Other industrialized, democratic nations have banned the death penalty, considering it cruel and unusual punishment, and are often reluctant to extradite perpetrators to the U.S. if they are likely to face the death penalty. Of course, other countries' policies should not dictate ours. But the fact that some people escape our justice system because of this requires that much more of a compelling argument in favor of capital punishment to make it worth allowing this loophole. Otherwise, unqualified extradition agreements would both deter crime without consequence and remove a diplomatic albatross.

Conclusion

The only justification for capital punishment that can't be objectively dismissed on its merit is retribution, which is easily canceled out by competing non-rational positions, and just as easily set aside to provide for an objective discussion. Put simply, we shouldn't kill when we don't have to kill. And I require strong, rational arguments to persuade me of the necessity of capital punishment. So far, I haven't heard a group of arguments that outweigh the factors mentioned here. In fact, I haven't yet discovered a single rational argument to put on the other scale.

Copyright © 2003 by Andrew Davies