Criminal Justice and Capital Punishment Essay

Criminal Justice and Capital Punishment

Capital punishment has provoked heated discussion since biblical times. The debate remains as divisive as ever because it sits at the intersection of life, death and the very definition of the word justice. Whether justice requires the death penalty is strictly a matter of how one defines justice. Since the reinstatement of the death penalty in 1977 there have been over 600,000 murders in the United States and just over 1,000 executions.

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The first known execution in the territory now known as the United States of America was of Captain George Kendall, who, accused of sowing discord and mutiny was shot by a firing squad in Jamestown in December 1607. In 1622 the next known execution, also in the Colony of Virginia, was of Daniel Frank, for the crime of theft. Since then the death penalty has almost always been a part of the criminal justice system (“History of the Death Penalty & Recent Developments,” 2000).

Proponents of capital punishment argue five purposes for its use, to remove from society someone who would cause more harm, someone who is incapable of rehabilitation, to deter others from committing murder, to punish the criminal, and to take retribution on behalf of the victim (White, 2011).

Opponents of capital punishment argue that death constitutes “cruel and unusual punishment,” which is prohibited by the 8th amendment to the U.S. Constitution. Furthermore, they contend that the various means used by the state kill a criminal are cruel. Another of their concerns is that the death penalty is invoked disproportionally against the poor, who cannot afford expensive legal counsel, as well as against racial, ethnic and religious minorities. Opponents also argue that the death penalty is applied arbitrarily and inconsistently, and wrongly convicted, innocent people have received death sentences and been executed. Additionally, a rehabilitated criminal can make a morally valuable contribution to society. Finally, many believe that killing human life under any circumstances is morally wrong (White, 2011).

Global Perspective

According to Sangmin Bae (2008) over the past three decades, a remarkable number of countries have joined the international human rights movement to abolish capital punishment. As recently as 1970, only 12 countries in the world had completely abolished the death penalty, while another 11 had abolished it for ordinary crimes in peacetime. Since then, about a hundred countries have eliminated the death penalty in national judicial systems, whereas only four countries that had abolished it have reintroduced it. As of May 2006 123 countries have ended capital punishment in law or practice while 73 have retain it. Furthermore, most of these remaining 73 nations have moratoriums on executions. Among these 73 countries, only 22 actually carried out executions in 2005. Most countries that continue to carry out executions today do so only for murder, although they may retain the death penalty in law for other crimes. The rate of executions in most such countries has declined to a point where it represents only a tiny fraction in relation to the number of reported murders.

Capital punishment in the United States is founded within several broader contexts, cultural, political, and historical. A cultural variable has a strong potential to explain the historical pattern of current behavior surrounding capital punishment. The gross disproportions in executions across American states have no parallel in the distribution of death penalty statutes, rates of murder, or even death sentences.

The sentiments and values associated with a vigilante past are linked to current regional differences in the practice of capital punishment. The Southern inclination toward the death penalty and American political institutions high rates of execution are closely linked to the vigilante tradition in many minds. Although there are many other nations where vigilante behaviors and attitudes were once pervasive, it is peculiar to the United States that such values and sentiments are much stronger and still influential in the twenty-first century.

Countries that share an extensive frontier tradition with the United States, such as Australia, Canada, or Mexico, got rid of capital punishment a long time ago, suggesting that the continued practice of the death penalty in the United States cannot be merely explained as a legacy of the country’s frontier past.

The American public strongly supports the death penalty. According to the Gallup polls, beginning 1976 when the United States Supreme Count reintroduced capital punishment, the number of supporters increased steadily over the next 20 years: 66% in 1976, 70% in 1986, and 80% in 1994, which is the highest record of capital punishment support in the United States. More recently, public opinion on capital punishment has been more stable with upward of two in three Americans supporting it. In 2001, the data show that 67% of Americans supported capital punishment, 71% in 2002, 67% in 2003, 67% in 2004, and 64% in 2005.

One may argue that the continued practice of capital punishment in the United States is due to the strong public support for it. However, this belief is undermined by the fact that an American populace greatly in favor of capital punishment does not distinguish this country from other nations that have abolished the death penalty. People from across the world, including Europe and other advanced industrial abolitionist nations, view the death penalty positively, suggesting that the general poll support for the death penalty does not seem closely linked to the likelihood of governmental action.

The level of public support for the death penalty in France, Germany, and United Kingdom just prior to abolition was in the same range as is currently found in the United States. An English poll found 82% in favor of reintroducing the death penalty in 1975, a larger majority than any American poll of the modern era.

It was not until the last decade of the twentieth century that the majority of the population in at least some European countries became abolitionist. Even at present, a significant portion of the population in England, France, and elsewhere would prefer that executions resume in their nations (Bae, 2008).

The Application of the Death Penalty

During the period from 1930 to 1967, 3,859 persons were executed in the United States under civil jurisdiction. Of these 54% were black, 45% were white, and the remaining one percent were American Indian (19), Filipino (13), Chinese (8), and Japanese (2). Only 32 were woman. Three out of five executions took place in the southern United States. Of these 3,334 were for the crime of murder, while 455, ninety percent of these black, were executed for rape, and 70 for other offences (“History of the Death Penalty & Recent Developments,” 2000).

From 1967 to 1977 a moratorium prohibiting the use of capital punishment was created when the Supreme Court, in a 5-4 decision, struck down federal and state capital punishment laws permitting wide discretion in the application of the death penalty (Furman v. Georgia, 408 U.S. 153, 1972). Ruling these laws arbitrary and capricious the court ruled they constituted cruel and unusual punishment in violation of the Eighth Amendment and the due process guarantees of the Fourteenth Amendment. The nine Supreme Court justices wrote nine separate opinions on what constituted cruel and unusual punishment. Quickly states begin to enact legislation tailored to satisfy the Supreme Court’s objection to arbitrary imposition of death sentences, and on January 17. 1977, convicted murderer Gary Gilmore was executed by firing squad in Utah (“History of the Death Penalty & Recent Developments,” 2000).

According to the Death Penalty Information Center (“Arbitrariness,” 2010) the death penalty is still being applied unpredictably. Data indicates that factors such as geography, race, gender and access to adequate counsel appear to affect death sentences.

While it might be expected to see some variation from state to state given differences in population, crime rates and laws, it is also reasonable to expect uniformity of application within that state. However whether a person receives the death penalty depends heavily on where the crime was committed. For instance about one quarter of Ohio’s death row inmates come from Hamilton County, but only 9% of the states murders occur there. In Indiana two counties produce almost as many death sentences as the rest of the state combined. Investigators contributed this fact to the views of individual prosecutors and financial resources. In New York three counties out of 62 accounted for one-third of all cases in which a death notice was filed. A just system ought not to have death sentences concentrated in one region. Harris County, Texas has executed 115 individuals, but the vast majority of U.S. counties have not executed a single individual. In fact, only 454 counties out of 3,146 have carried out any executions. Just 14 counties have executed more than 10 individuals, but together these counties constitute 30% of the national total (Baumgartner & Richardson, 2010).

Racial disparities in sentencing and executions suggest that race still plays a role in the application of the death penalty. Modern studies of the subject continue to find a correlation between sentencing and race. Research reveals that those who are much more likely to receive the death penalty than those who . One study found that for similar crimes committed by similar defendants, blacks received the death penalty at a 38% higher rate than all others (Dieter, 1998).

It is significant to note that the death penalty is more likely to be imposed on men than woman. Death sentences and actual executions for female offenders are rare in comparison to such events for male offenders. Woman account for 10% of the murder arrests, 2% of the death sentences imposed at the trial level, 1.7% of the persons presently on death row, and 1% of the persons actually executed since 1973 (Streib, 2010).

States vary enormously in the quality of representation they provide to indigent defendants. The quality of legal representation is related to the arbitrary application of the death penalty in that inadequate representation contributes to mistakes in capital sentencing. Though Washington State’s overall disbarment rate for attorneys is less than 1%, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. At least 16 death row inmates in North Carolina, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. In Texas, about one in four death row inmates has been defended by lawyers who have been reprimanded, placed on probation, suspended or banned from practicing law by the state bar (“Arbitrariness,” 2010).

Equality or Justice

In an Egalitarian Theory of Justice American philosopher John Rawls (1971) discusses the elements necessary for a society to be just for all. He begins with the supposition that in a just society the liberties of equal citizenship are not based on social circumstances, financial position or authority.

Rawls defines society as an association of individuals who recognize certain rules of conduct and behave accordingly in order to advance the good of the participants. Rawls claims that this phenomenon requires that a set of social principles be established to ensure justice so that the advantaged do not unfairly gain by their position. He goes on to say that these principles must be chosen “behind a veil of ignorance” so that “no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances” (Rawls, 1971). In other words for justice to be just it must be blind, if it is not equal than it is not just.

Deterrence Factors

Many studies on deterrence and the death penalty do not support the idea that the prospect of receiving the death penalty discourages the act of murder; in fact the murder rate in states that do not have the death penalty is consistently lower than in states with the death penalty. According to Michael Radelet and Traci Lacock (2009) eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide. Furthermore, 87% of those surveyed believe that abolition of the death penalty would not have any significant effect on murder rates. Police chiefs rank the death penalty last as a way of reducing violent crime, placing it behind curbing drug abuse, more police officers on the streets, lowering the technical barriers to prosecution, longer sentences, and a better economy with more jobs.

Continuum of Moral Justification for Taking a Human Life

There are many circumstances to be considered when examining the moral and ethical issues surrounding the taking of human life (Thiroux & Krasemann, 2008). The moral justification of killing is not a binary affair, that is justified or not, but rather a continuum. The taking of a human life is more justified under some circumstances than others. The moral cost of killing must be balanced against the moral cost of not killing.

This calculation is contingent on a value system and is dependent on circumstances. If one values all human life equally the circumstances in which killing is permissible is very narrow. If one places a greater value on some particular human life more than others this broadens the circumstances. In other words if one values the life of a compatriot twice as much as one values the life of a foreigner it is then permissible to kill two innocent foreigners to save one innocent compatriot. On the other hand, if one values all life equally an innocent foreigner may not be killed to save and innocent compatriot.

Starting with the most justified and continuing through to the least justified, this list is of the various motivations for the taking of human life. 1) Killing in defense of your or another’s life when no non-lethal alternatives are available, or the a much greater risk of death or injury to yourself, or others or you are unable to resort to non-lethal alternatives due to fear, anger, or some other transient emotion. 2) Killing to prevent serious and permanent harm to yourself or another. 3) Killing in retribution for a previously committed wrong. 4) Killing in war: in a morally justifiable cause for clear strategic goal when no less but equally effective means are available — in a morally justifiable cause for clear strategic goal even in the presence of other equally effective means — in a morally justifiable cause without a strategic goal — in a morally unjustifiable cause. 5) Killing out of social pressure – abortion / suicide etc. 6) Killing out of anger, frustration, jealousy, or some other internal emotional reason. 7) Killing for gain. 8) Killing for pleasure (Thiroux & Krasemann, 2008).


I was once advised to consider three factors when making a decision, is it logical, is it fair and will it work. If a choice satisfies these three criteria then it is probably a good decision. This being said is the death penalty logical? I would have to say that it is if you believe you reap what you sow then it is logical. Is it fair? This is debatable. In the manor that it is applied today I would have to say no. Finally, does it work? If its purpose is to remove from society someone who would cause more harm, someone who is incapable of rehabilitation, to punish the criminal, and/or to take retribution on behalf of the victim, then yes. If the purpose of the death penalty is to deter murder, then no, it does not work. Given all of this I personally do not support the death penalty.


“Arbitrariness.” (2010). Arbitariness. Death penalty information center. Retrieved March 19, 2012 from http://www.deathpenaltyinfo.org/arbitrariness

Bae, S. (2008, April). The death penalty and the peculiarity of American political intstitutions. Human rights review. Vol. 9, Issue 2, 233-240. March 19, 2012 from http://web.ebscohost.com/ehost/pdfviewer/pdfviewer?vid=3&hid=14&sid=2084aad1-6139-48ee-b3b3-c8fb24b54fca%40sessionmgr12

Baumgartner, F.R. & Richardson, R.J. (2010, October 10). The geography of the death penalty. University of North Carolina at Chapel Hill. Retrieved March 20, 2012 from http://www.unc.edu/~fbaum/Innocence/NC/Baumgartner-geography-of-capital-punishment-oct-17-2010.pdf

Dieter, R.C. (1998). The death penalty in black and white. Death penalty information center. Retrieved March 19, 2012 from http://www.deathpenaltyinfo.

“History of the death penalty & recent developments.” (2000, March 3). UAA justice center. University of Alaska, Anchorage. Retrieved March 20, 2012 from http://justice.uaa.alaska.edu/death/history.html#unitedstates

Radelet, M.L. & Lacock, T.L. (2009). Do executions lower homicide rates?: The views of leading criminologists. Journal of criminal law & criminology. Vol. 99, No. 2. Northwestern University School of Law. Retrieved March 20, 2012 from http://www.deathpenaltyinfo.org/files/DeterrenceStudy2009.pdf

Rawls, J. (1971). An egalitarian theory of justice. A Theory of Justice. Cambridge MA: Harvard University Press.

Strieb, V.L. (2010). Death penalty for female offenders, January 1, 1973 through October 31, 2010. Ohio Northern University. Issue # 65. Retrieved March 19, 2012, from http://www.deathpenaltyinfo.org/documents/femaledeathrow.pdf

Thiroux, J.P. & Krasemann, K.W. (2008). Ethics:Theory and practice. 10th ed. Upper Saddle River, NJ: Prentice Hall.

White, D. (2011). Pros & cons of the death penalty. About.com. U.S. Liberal Politics. Retrieved March 19, 2012, from http://usliberals.about.com/od/deathpenalty/i/DeathPenalty.htm

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