In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.

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Reflections on Capital Punishment: Media, the Legal System, and the Pursuit of Justice

Following the event "Life After Death Row" during the 2013 'DEIS Impact! festival of social justice, students and visitors reflect on capital punishment and the justice system. Video produced by Ethics Center Leadership Council member Hailey Magee '15. (For full-screen version of the video, click the title.)

Ethical Inquiry: October 2010

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Is capital punishment ethical?


Is capital punishment ethical? The question is far from settled. 139 nations have abolished the death penalty in law or practice, while 58 retain it. In the United States the question continues to generate debate.

On October 25th, 2010, the International Center for Ethics, Justice, and Public Life and the Brandeis-Genesis Institute for Russian Jewry cosponsored a talk at Brandeis by Bakhtiyar Tuzmukhamedov, “International Law in Russian Constitutional Justice: A Case Study of Capital Punishment.”

Inspired by Judge Tuzmukhamedov’s visit, we are exploring the question of capital punishment in the United States and around the world, featuring some of the key arguments made by proponents and opponents of the death penalty.

A professor of international law and a Counsellor to the Constitutional Court of the Russian Federation, Bakhtiyar Tuzmukhamedov was involved in that court’s decision that Russia must maintain its moratorium on the death penalty, introduced in 1996 as part of its obligations as a member of the Council of Europe.

Countries that are in the Council of Europe are called upon to respect the various articles of the European Convention on Human Rights.

Countries wishing to be admitted to the more exclusive European Union need to demonstrate a good human rights record, including compliance with judgments by the European Court of Human Rights calling for changes in their laws or practices. Protocol 6 of the European Convention requires parties to restrict the application of the death penalty to times of war or "imminent threat of war." Every Council of Europe member state has signed and ratified Protocol 6, except Russia, which has signed but not yet ratified.

Judge Tuzmukhamedov is also currently serving as Trial Judge of the International Criminal Tribunal for Rwanda, and was a participant in the 2010 Brandeis Institute for International Judges.

We hope that this "Ethical Inquiry" serves to clarify peoples’ thinking on this challenging topic.


Arguments in favor of capital punishment

Retribution

Some argue that the most serious crimes necessitate the most serious punishment.

In The Boston Globe Jeff Jacoby argues that the taking of an innocent life forfeits the right of the accused to remain alive and that a society that doesn’t execute murderers “is a society that doesn’t really think murder is so terrible.”

Bob Greene, writing in The Chicago Tribune, contends that concern for the individual being put death can overshadow the reasons that person individual was sentenced to death in the first place (“Who weeps for the blood of the Weiler family?”).

Paul G. Cassell discusses in “In Defense of the Death Penalty,” published in IACJ Journal
  (an updated chapter from Debating the Death Penalty), the idea that certain crimes demand retribution and addresses the deterrence and incapacitation arguments by asking whether or not our society is willing to risk innocent lives on the chance that the death penalty does not deter or incapacitate.

Deterrence

The heart of the deterrence argument is the contention that by demonstrating that the penalty for murder is death, we deter would-be criminals from committing crimes.

“Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data” by Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepherd, in the American Law and Economics Review (2003), reports on the postmoratorium panel data, which found that each execution results, on average, in eighteen fewer murders—with a margin of error of plus or minus ten.

In a 1969 article "On Deterrence and the Death Penalty" in the Journal of Criminal Law, Criminology and Police Science, Ernest van den Haag argues for the death penalty on the basis of it being a just punishment of the worst crime and a deterrent to others who might commit the same crime. In a 1980 article in the American Journal of Sociology, "The Deterrent Effect of Capital Punishment" David D. Phillips, suggests that the greater the publicity surrounding executions, the greater the deterrent effect will be.

A 2007 CBS News report, “Death Penalty Deters Murders, Studies Say”, looks at the findings of a dozen studies conducted since 2001, all of which agree that the death penalty has deterrent effects.

A 1975 study by Isaac Ehrlich, published in The American Economic Review, “The Deterrent Effect of Capital Punishment: A Question of Life and Death,” utilized US Supreme Courtextensive mathematical modeling, and concluded that executions deterred future crimes. It was the subject of mainstream news articles and public debate, and was cited in papers before the U.S. Supreme Court arguing for a reversal of the top U.S. court's 1972 suspension of executions. (Furman v. Georgia.) In 1976, in Gregg v. Georgia, the Court reinstated the death penalty.)

Incapacitation

It is undeniable that those who are executed cannot commit further crimes. Some advocates for the death penalty highlight the fact that there have been people who have murdered while on death row or when released from incarceration.

In his statement before the Committee on the Judiciary United States House of Representatives Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases (1993) Paul G. Cassell, associate professor of law at the University of Utah College of Law, makes the that the death penalty incapacitates murderers by disallowing them the opportunity to return to the public where they may murder again, citing specific examples of this.


In 1996 The US Department of Justice’s Bureau of Justice Statistics released a report on “Capital Punishment in 1994”, showing that 9-15% of those on death row committed at least one murder, prior to the murder (or murders) which put them on death row, suggesting that repeat offense is a possibility.

Closure and vindication

There is support for the death penalty as a means of providing closure for the families of the victims.

In “Death penalty would end punishment of victim’s family” (Anchorage Daily News, 2009), Irl and Gary Stambaugh, whose sister, Jody, was raped and murdered in 1972, detail their emotional roller coaster ride with each of the perpetrator’s parole hearings, suggesting that the families of this persons victims would have been spared this ordeal if a death penalty had been imposed.

“Victims’ families call for return of the death penalty” includes quotes from some of the families of five women murdered by the same man, including requests by several family members to reinstate the death penalty, which has been outlawed in the United Kingdom.


Arguments in opposition to capital punishment

Deterrence does not work

Opponents point to evidence that the death penalty does not serve as a deterrent, or as a more effective deterrent than a sentence of life in prison without possibility of parole.

In 2001, Avery Cardinal Dulles wrote that “Sociological evidence on the deterrence effect of the death penalty as is currently practiced is ambiguous, conflicting, and far from probative.”

Amnesty International presents statistics showing that, during the last 20 years, the homicide rate in states with the death penalty has been 48 to 101 percent higher than in states without the death penalty.

Ineffective as closure for families

Some opponents note that no punishment will bring back loved ones. They also point to some of the challenges the death penalty brings for the families of victims.

Death Penalty Focus “is one of the largest nonprofit advocacy organizations in the nation dedicated to the abolition of capital punishment through public education; grassroots and political organizing; original research; media outreach; local, state and nationwide coalition building; and the education of religious, legislative and civic leaders about the death penalty and its alternatives.”

On its website the organization cites various reasons why families and loved ones of murder victims support alternatives to the death penalty, one being the including the trauma of the long death penalty process “often requiring them to relive the pain and suffering of the death of their loved one for many years.” They suggest that “Life without parole provides certain punishment without the endless reopening of wounds.”

Death Penalty Focus also reprints “Gary Rules Guillory May Ask for Mercy” on its website, an account from American Press.com of the mother of a six-year-old murder victim asking jurors to not use the death penalty to punish the man accused of killing her child, demonstrating that even among families of victims there is not consensus on support for the death penalty.

The website of Murder Victims’ Families for Reconciliation, “a national organization of family members of victims of both homicide and executions who oppose the death penalty in all cases,” includes several stories of people whose loved ones were murdered and explains why each is opposed to the death penalty. Several specifically state that the death penalty would not provide closure for them.

Financial costs

The monetary costs associated with obtaining a death penalty conviction may be greater than the costs associated with providing lifetime imprisonment.

The ACLU’s 2008 video “CA’s Death Penalty: Multi-million dollar failure” records the opinions of a panel of experts who agree that the current death penalty system in California is costing over $137 million per year and asks how much we are willing to pay for the death penalty when there are other methods of punishment.

MSNBC discusses in “To execute or not: A question of cost?” findings that it is cheaper to imprison killers for life than to execute them and how this information has changed state policies regarding the death penalty from California to New Jersey.

A report from the Death Penalty Information Center, “Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis,” uses various sources to support the claim that “the death penalty in the U.S. is an enormously expensive and wasteful program with no clear benefits” and that as many states are facing further deficits, this may be a good time to consider whether or not maintaining the death penalty system is an economically good decision.

A 2003 legislative audit in Kansas found that the estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case. Death penalty case costs were counted through to execution. (Median cost: $1.26 million.) Non-death penalty case costs were counted through to the end of incarceration. (Median cost: $740,000.)

A 2008 research report from the Urban Institute Justice Policy Center, “The Cost of the Death Penalty in Maryland,” found that, in Maryland, death penalty cases cost three times more than non-death penalty cases, or $3 million for a single case.

Wrongful Convictions

Some argue that in an imperfect world, innocent individuals may be convicted and executed, and this is too great a risk too take.

This issue has been a particular focus of the Justice Brandeis Innocence Project. This Brandeis on-campus resource is a member of the Innocence Network, “an international network of innocence projects—most of which are modeled after the Innocence Project founded by Barry Scheck and Peter Neufeld at the Cardozo School of Law in 1992.” Justice Brandeis Innocence Project logoAccording to its website, the Justice Brandeis Innocence Project “is one of the few projects around the country that uses journalistic methods as a primary tool. Although we consult with attorneys and academic experts in criminal justice, we depend on investigative reporting techniques to probe cases of likely wrongful conviction because often, there is no DNA to test.”


In 2006, the Brandeis Institute for Investigative Journalism hosted Helen Prejean at Brandeis, for the Brandeis Day of Innocence. She spoke about her book The Death of Innocents: An Eyewitness Account of Wrongful Executions. See a video of her talk.

In 2000 the governor of Illinois imposed a moratorium on executions in the state, declaring “he will not go ahead with executions unless the panel [that he appointed to study ways to fix the death penalty] can give him ‘a 100 percent guarantee’ against any mistaken convictions.” This followed a study showing a high rate of errors in convictions for capital offenses.

In 2002 Maryland followed suit with a similar moratorium. And in 2006 New Jersey, which had not executed anyone in 43 years, also suspended its death penalty, “with its first execution approaching.”

“Miscarriages of Justice in Potentially Capital Cases” (Stanford Law Review, 1987), by Hugo Adam Bedau and Michael L. Radelet, concluded that 23 innocent persons had been executed between 1900 and its publication. Critics argued that the authors were unable to prove that those 23 individuals were innocent.

“100th death row exoneration,” by Chris Adams, in the National Association of Criminal Defense Lawyers’ Champion magazine, reflects on the 2002 release of death-row inmate Ray Krone who, after spending 10 years in jail, was exonerated for his crimes by DNA evidence.

Racist application

Some analyses have shown that the death penalty has been disproportionately applied in cases in which the defendant is nonwhite or the victim is white.

The Northwestern University Law School’s Center on Wrongful Convictions, presents the case of Madison Hobley, one of 14 African-American men sentenced to death based on confessions “obtained by a group of Chicago police officers later shown to have engaged in systematic torture of suspects in criminal cases.”

This 2010 article “Study: Race plays role in N.C. death penalty” reports on a study that found that someone convicted of killing a white person in North Carolina is three times more likely to be sentenced to death than someone who kills a black person.

Morally unjust

Many death penalty opponents believe that state-sanctioned killing is not a sensible way to show that killing is wrong does not make sense, and believe that the government has no moral right to put people to death.

The Catholic Church opposes the death penalty on moral grounds. Helen Prejean, (noted above in the section on wrongful conviction) a Catholic nun and author of Dead Man Walking, opposes the death penalty for many reasons, including the moral argument.

Human rights abuse

Amnesty International contends that  “The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice,” going on to assert that “It violates the right to life as proclaimed in the Universal Declaration of Human Rights.”

“The Death Penalty is a Human Rights Abuse,” by Robert Meeropol, director of the Rosenberg Fund for Children, and Rachel Meeropol, an attorney at the Center for Constitutional Rights, focuses on the question of whether or not a government has the right to punish its citizens by killing them and comes to the conclusion that the death penalty is a human rights abuse.

Global Perspectives: International Law


Amnesty International provides extracts from international legal instruments that are relevant to the abolition of the death penalty. (Available in English, Spanish, and French.) The organization also lists the four major international treaties that are relevant for the abolition of the death penalty and the states that are party to those treaties.

The death penalty was available to the post-World War Two Nuremberg Trials and the Tokyo War Crimes Tribunal, but no international court currently allows it.

Whitney Harris, one of the lead prosecutors of the Nuremberg War Crimes Tribunal, discussed the use of the death penalty to punish Nazi leaders in a 2008 interview.

The Criminal Procedures of the International Criminal Tribunal for the former Yugoslavia (ICTY) state that those accused and convicted of war crimes, genocide and crimes against humanity will not be penalized by death.The Hague - Peace Palace gate

Section 5 of the article “Some Major problems in drafting the ICTY Statute” looks at how ICTY decided to not impose the death penalty on crimes which had been punishable by death during the Nuremberg Trials.

The International Court of Justice ruled in 2004 that the USA breached its obligations under the Vienna Convention on Consular Relations by sentencing to death 51 Mexican nationals who were unable to contact their consulate.

Global Perspectives: Regional Trends


The European Union's "Memorandum on the Death Penalty" discusses how the “inhumane, unnecessary and irreversible character of capital punishment” delegitimizes the use EU flag and gavel imageof the death penalty as punishment by any court, and recalls that both the Rome Statute and the UN Security Resolutions that established ICTY and International Criminal Tribunal for Rwanda do not provide for the death penalty, even when trying genocide and crimes against humanity.

In a 2010 press release the European Union notes a worldwide trend towards abolition of the death penalty.

 “Africa sparks hope for abolishing the death penalty” (InfoSud Human Rights Tribune, 2010) looks at the results from the 4th World Congress Against the Death Penalty and the challenges and successes that the nations of sub-Saharan Africa face in the effort to abolishing the death penalty.

“Nigeria: AU asks FG to Stop Execution of 870 Convicts” (allafrica.com, July 2010) looks at Nigeria’s justification for the would-be execution of 870 convicts and the African Union’s (AU) plea for Nigeria to move towards abolition.globe with scale image

Think Centre based in Singapore, “advocates for the formation of a Coalition Against the Death Penalty in ASEAN [The Association of Southeast Asian Nations]” noting in a press release that “Two ASEAN member countries, Cambodia (1989) and Philippines (2006), have already abolished the death penalty for all crimes.”

In “Death Penalty is not the norm in the Middle East” (The Guardian, 2010) Brian Whitaker comments that, “Despite the grotesque cases that occur in Saudi Arabia and Iran, use of the death penalty is not the regional norm” in the Middle East.

Global Perspectives: National Policies


The United States continues to openly practice the death penalty, although the way it is used varies by state, with some states even having abolished it. Some examples of approaches to the death penalty from around the globe:

Some nations that have abolished the death penalty:

Cambodia: “Abolition of Death Penalty in Cambodia,” from the Cambodian League for the Promotion and Defence of Human Rights, examines the text of Cambodia’s 1993 constitution in abolishing the death penalty, Cambodia’s unwillingness to ratify the Second Protocol to the International Convention on Civil and Political Rights, and the regional politics surrounding the abolition of the death penalty.

Mexico: Mexico abolished the death penalty in 2005, but the article “Mexico: Death Penalty Gaining Support” (The Huffington Post, 2009) looks at growing public opinion that would support reinstating the death penalty to deal with a then recent surge in violent crimes.

Russia: The article “Russia enshrines ban on death penalty” (BBC, 2009) looks at the recent decision of Russia’s Constitutional Court to extend the 1996 moratorium on the flagsdeath penalty – which was set to expire on January 1st 2010 – until Russia ratifies Protocol Six of the European Convention on Human Rights.

Rwanda: “The Abolition of the Death Penalty in Rwanda” (Human Rights Review, 2009) looks at the effect of the International Criminal Tribunal’s refusal to use the death penalty in its sentencing on the later abolition of the death penalty in Rwanda.

United Kingdom: “Death Penalty abolished on all British territory” (The Times - UK, October 2002) reports on the abolishment of the death penalty on all British territory the day after the government signed the abolition of the death penalty into law.

Some nations in which the death penalty is practiced minimally:

Israel: “Judaism and capital punishment” (BBC Religions, 2009) looks at the Old Testament, the Talmud and the previous practice of Judaic law and how it influenced Israel to only use the death penalty against individuals accused of genocide, as in the case of Adolf Eichmann.

Tunisia: “Tunisian court upholds death penalty for convicted terrorist” (Magharebia, 2008) discusses Tunisia’s first death penalty sentence since 2000 and the charges against the accused.

Some nations in which the death penalty is practiced openly:

China: Even though China’s official policy is to use the death penalty punishment sparingly, China’s use of the death penalty consistently contributes 60-80% to the total number of death penalty sentences worldwide. The brief “China’s Death Penalty: Reforms on Capital Punishment” (East Asian Institute, 2008) looks at recent efforts to reform this practice and the likelihood of success of this reform.

Gambia: “Gambia introduces death penalty for drug possession” (BBC, 2010) discusses recent measures in Gambia to deter the drug trade by increasing the punishment for offenders of laws that prohibit the possession of illegal drugs.

Iran: “Canadian ‘blogfather’ faces Iran death penalty” (CBC News, 2010) reports that “An Iranian-Canadian blogger imprisoned in Iran since 2008 on charges of creating anti-Iranian propaganda faces the death penalty, according to two prominent Canadian rights groups.”

Saudi Arabia: “Saudi princess given asylum in UK over fears she faces execution for having illegitimate child with British lover” (The Daily Mail, 2009) details a case of asylum being granted based on a legitimate fear of being stoned to death in Saudi Arabia for the crime of adultery.



Final Thoughts

The debate over capital punishment continues in the United States and around the world. We invite you to continue exploring the ethical issues that arise in this context, and to share your thoughts with us on our Facebook page.

Have suggestions for additional content that looks at the ethical issues surrounding capital punishment? Let us know:

– Comment on this "Ethical Inquiry" on the International Center for Ethics, Justice, and Public Life's Facebook page.

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This installment of "Ethical Inquiry" was researched by Katherine Alexander '12.