Debating the Death Penalty's Future

Introduction

The abolition of death penalty or capital punishment in a contentious issue in the United States. Apart from a four-year moratorium on executions in the period between 1972 and 1976, after the Supreme Court judgment in Furman v. Georgia, death penalty has been a regular feature of the United States criminal justice system. The public support for death penalty in the United States has been traditionally higher, although there is a significant abolitionist movement in the United States as well. The abolitionist debate of death penalty has typically involved arguments on the humanist and liberal traditions on the abolition side, and deterrent, retribution, and public support arguments on the retention side. The judicial opinion on death penalty was predominatly abolitionist in the 1960s, leading up to the Supreme Court decision in Furman v. Georgia. However, since the late 1970s, and the decision of the Supreme Court in Gregg v Georgia, there has been little support for abolition of death penalty from the Supreme Court as well. At the same time, the number of executions that are carried out in the United States has come down since that period; nevertheless, the United States remains one of the top five executioners in the world, along with countries like Pakistan, Saudi Arabia, and China. In this, the United States is an outlier in the group of nations that are more aligned to its liberal and democratic traditions, such as, United Kingdom, New Zealand, and most of the European nations, which have abolished the death penalty. Therefore, the United States is the only western country which continues to have death penalty in its statute books. The exceptions are a few states in the United States that have abolished the death penalty.

In the United States, the death penalty is also an issue that is aligned to race relations. This is so because of the history of legal lynching in the Southern states, which allowed the white majority to lynch African Americans for alleged crimes against the members of the white communities without legal repercussions. The history of the Jim Crow laws, and all that these laws meant to the African American communities, is also relevant to the issue of abolition of death penalty, which has been seen by many abolitionists as a tool used predominantly against the African Americans. The United States has a history of a criminal justice system that was structured to favour the whites and disadvantage the African Americans. Till the 1930s, police abstracted confessions from African Americans under torture, and such evidence was usually admissible in the court. At the same time, all white juries and a prejudiced system, ensured convictions against African Americans even without due process norms being followed. Death penalty was also usually given to the African Americans especially if they were found guilty of sexual offences against white women, while in similar offences white convicts were not given death penalty with as much frequency as African Americans. This disparity between Africa American defendants and white defendants was also noted by the Supreme Court. Due to the possibility of racial prejudice in the way death penalty is used in the United States, a significant argument against retention of the death penalty is the racial argument, which emphasises on the use of racial prejudice against African American defendants. These arguments are considered in this dissertation as a part of the abolitionist stance on death penalty.

This dissertation considers the overarching question as to whether the death penalty ought to be abolished in the United States. In doing so, the dissertation considers the arguments for abolition as well as retention. The dissertation takes a historic as well as a contemporary view on the arguments both for abolition and retention. Therefore, the impact of major theoretical positions, such as, utilitarianism, and retribution and deterrence, is considered and analysed with respect to the death penalty. The dissertation also considers major judicial decisions related to death penalty with the objective to understanding the legal and constitutional arguments with respect to the abolition or retention of the death penalty. The methodology used for this dissertation is derived from quantitative methodology and data for this research has been collected by desk based research methods. The dissertation is analytical and critical in nature. The dissertation first considers the use of death penalty in the United States. Then the dissertation discusses the arguments for both the abolition and retention of death penalty. Finally, the dissertation concludes on whether the death penalty should be abolished in the United States.

Death Penalty in United States

The United States is unique in the context of death penalty in terms of being a western state because most of the western countries have either abolished death penalty, or have limited incidence of executions as compared to the United States. However, for the United States abolition of death penalty is not a simple issue because it cannot be decided at the level of the federal government; rather it falls in the domain of the state governments. The Tenth Amendment provides that the legislative powers not expressly provided to the Congress are to be exercised by the state legislatures, which makes the abolition of the death penalty a matter for the state domain. It may be mentioned that there are states in the United States that do not have death penalty, and there are 31 states in the United States that allow death penalty, while the rest have abolished the death penalty. There are also states like Kansas and New Hampshire that have the death penalty on the statute books but have not executed anyone in decades.

The United States is a member of the international community, but so far it has not allowed international law to guide it in adopting an abolitionist stance on death penalty. With regard to the International Covenant on Civil and Political Rights (ICCPR), the United States has made a reservation at the time of signing it so as to continue imposing death penalty on offenders under the age of eighteen. The US Supreme Court has also upheld death sentences to convicts under 16 years of age; but there appears to be a shift in this approach by the US Supreme Court in recent times, when in a case, the court held that death penalty ought not to be given to an individual who was under 18 years of age at the time of commission of the crime. There is significant public support for death penalty in the United States, and the retentionists are in favour of retaining the death penalty on the basis of emotive and politically charged arguments. Arguments in favour of crime control are used by retentionists to argue that death penalty should not be abolished. In the United States, the constitutional and legal framework also allows death penalty. Moreover, the presence of procedural and substantive due process provisions in the American constitution also bolsters the case for retentionists who argue that death penalty is only given where the due process guarantees are met and satisfied. However, in some cases, the Supreme Court has been called upon to decide on due process in context of death penalty as in Furman v Georgia, wherein the Supreme Court held death penalty contravenes due process guarantees. This was not the first instance in which the Supreme Court has considered the death penalty constitutionality and death penalty cases often involve either the question of constitutionality of death penalty or the constitutionality of the mode of execution of death penalty. The jurisprudence of the Supreme Court with respect to the death penalty shows that there is lack of uniformity in death penalty cases, for instance, in 1971, the Supreme Court decided that the death penalty constitutional; whereas in Furman, the Supreme Court took the opposite view, when it placed a four year ban on death penalty. In McGautha, it was the due process clause on the basis of which death penalty was challenged and the court held that death penalty was not contrary to the First Amendment. In Furman, the issue was regarding the manner of execution of the death penalty and the Supreme Court held that death penalty was unconstitutional. The Eighth Amendment was the issue in this case, and the court had to consider whether the cruel and unusual aspects of the penalty, such as long protracted waits on the death row, were contrary to the Eighth Amendment or not. Ultimately, the judgment of the court was not based on the lack of legality of death penalty itself, but the manner of the execution of death penalty, which was held to be capricious, and at times involved racial considerations.

After the Furman judgment, many states were required to redraft their laws; however, the ban on death penalty was lifted four years after Furman as the redrafted state statutes were upheld in three cases in 1976. . These statutes had worked on the provisions that impacted the manner of the execution of the death penalty in a way that removed the violation of the Eighth Amendment, and this allowed the Supreme Court to reaffirm the constitutionality of the death penalty. Therefore, the issue before the Supreme Court has been more concerning the execution of the sentence and not the constitutionality of the death penalty itself. For instance, recently the court was asked to consider the constitutionality of the execution of lethal injections without physician supervision, but the court upheld such executions as being constitutional.

Death penalty has traditionally seen significant debate. Historian Stuart Banner has explained the paradox of the death penalty rightly as follows:

“Capital punishment . . . presents several puzzles. It gets more attention than any other issue of criminal justice, yet it is a minuscule part of our criminal justice system. It is very popular despite well-known shortcomings--it does not deter crime, it is inflicted in a systematically biased manner, it is sometimes imposed on the innocent, and it is quite expensive to administer It is often justified in simple retributive terms, as the worst punishment for the worst crime, but it is not hard to conceive of worse punishments, such as torture. While capital punishment is intended to deter others, we inflict it in private, and allow prospective criminals to learn very little about it.”

As noted above, the death penalty provides a paradoxical and contrary situation. It is not a major part of the criminal justice system as very few executions actually take place in a given year. Yet, as an issue it receives considerable attention and drives debate. Death penalty has not been known to be a deterrent although one of the grounds for retentionist arguments is that death penalty can deter others from committing similar crimes in future. There is a possibility of wrongful application of death penalty due to bias, which particularly arises in cases where the accused belong to minority communities, particularly, the African American community. At the same time, death penalty is also expensive and difficult to administer. As this dissertation will discuss later, there are already difficulties surrounding administration of death penalty via lethal injections due to the European pharmaceutical companies deciding to not supply drugs that are used in the lethal injection cocktails. An argument that may advanced here is that justice should leave open the possibility “of a revision of a judgment once pronounced”. Yost argues that death penalty is unjust because it is contrary to the principle of revisability. There are many cases in the United States which have been found to be wrongly decided at a later point and in many of these cases, death penalty being executed, there was no option of revision. Therefore, there is a clear problem with the application of death penalty because it provides an irreversible punishment in a legal system that is not able to give perfect justice in every case that comes before it.

Despite these shortcomings of the death penalty, it is still a part of the legal system in the United States and has a significant support from popular opinion. Therefore, death penalty in the United States presents a very difficult and complex area of discussion with reference to both the abolition and retention arguments on death penalty. Another area of complexity with regard to abolition of death penalty in the United States is that it is not capable of being decided by the federal legislature itself. Therefore, any decision on the abolishing of death penalty remains in the purview of the state legislatures. This is one of the reasons why it has been difficult to abolish death penalty in the United States, which is not something that other western nations that have abolished the death penalty were not hindered by. The criminal law in the United States, is within the domain of the state legislatures and not the federal Congress as per the constitutional distribution of legislative powers between the Congress and the state legislatures. The Tenth Amendment to the United States Constitution lists the matters that are exclusively within the domain of the Congress, and anything outside this list, falls within the domain of the state legislatures, which is the reason why the Congress itself is not competent to repeal the death penalty. This is the reason why abolition of death penalty in the United States as a whole is not a simplistic matter; and while death penalty is abolished in several states of the United States, it cannot be said that the death penalty is abolished in the United States as a whole so long as even one state of the union retains the penalty on its statute books. There are sixteen states that have formally repealed the death penalty as well as the District of Columbia. Pennsylvania was the first state to abolish death penalty in 1786, although exception was made for first-degree murder for which the penalty was retained. Virginia abolished the death penalty in 1796 and Ohio in 1815. Michigan and Rhode Island were the first states to abolish the death penalty completely in 1846. 31 states of the United States still retain the death penalty in their statute books. It may be useful to mention that despite retaining the death penalty, there are some states like Kansas and New Hampshire that have not executed anyone for many decades.

From the discussion above, it may be noted that death penalty is not a simplistic issue as far as the constitutional question of abolition of death penalty is concerned because it is not for the Congress to abolish the penalty. This is a matter within the domain of the state legislatures, and as long as even one state retains the death penalty in statute books, it cannot be said that death penalty is abolished completely in the United States. Death penalty continues in the statute books of the majority of the states in the United States, therefore, what is seen is a disparity in approach to application of death penalty within the same country. This is again something that puts the United States at variance with other countries in the western world, which have completely abolished death penalty for all its citizens, whereas in the United States, some citizens will be liable to death penalty and some others not, depending on the jurisdiction within which their offences are tried. Thus, citizens of the same country are liable to get differential treatment with regard to death penalty because of the varied nature of the state laws on the issue.

Death Penalty – Abolition Arguments

In the United States, arguments around abolition of the death penalty have ranged from the consideration that death penalty is barbaric, to the methods of death penalty that are thought to be cruel (e.g. electrocution, or lethal injections). Justice Marshall is on record with the statement:

“In striking down capital punishment… we achieve a major milestone in the long road up from barbarism and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.”

The statement of Justice Marshall above is noteworthy for its use of the terms ‘civilisation’ and ‘humanity’, wherein he argues that abolition of death penalty is in accordance with the norms of civilization, whereas it may be inferred that continuance of death penalty may be taken to be contrary to notions of civilised and humane laws. Also, relevant and notable is the use of the word ‘barbaric’ to define death penalty, wherein the use of the punishment is a reference to the barbaric notions of punishment in the medieval times. This is one of the major arguments in the arsenal of the abolitionists and one which is rooted in the moral question of the death penalty as opposed to legal or constitutional question, which focusses more on the procedural aspects of the death penalty, including due process and modes of execution of death penalty. Both these arguments, that is, the moral as well as the constitutional arguments are considered and analysed in this section of the dissertation. The decision of Furman v Georgia, is considered to be a culmination of a long drawn, radical, abolitionist project, that was led by reforming judges and branches of civil rights movement, which considered death penalty to be a barbaric, unconstitutional penalty that put the United States at odds with other western, liberal democracies of the world that had abolished the death penalty. Indeed, by the time Furman v Georgia, was decided, there were almost 70 countries around the world that had already abolished the death penalty, many of these in Europe. By not abolishing the death penalty, the United States was seen as an outlier in this group of nations. Furman v Georgia, was able to put a moratorium on death penalty for a short period of time. However, eventually, it has proved to be difficult to completely abolish death penalty, especially with the growing public support for the death penalty since that period of time. Nevertheless, there is a significant number of Amercian population that does not support death penalty. This section brings to fore the arguments that are usually presented from the abolitionist point of view.

The first famous attempt at advancing arguments in favour of abolition of the death penalty was made in 1764 by Cesare Beccaria in his essay ‘On Crimes and Punishments’, in which he argued that death penalty ought to be abolished. Some years after the publication of this essay, Tuscany and Austria abolished death penalty. Portugal also abolished death penalty in 1864 and by the 20th century, Italy, Holland, Austria, Sweden, Romania, Denmark, and Prussia and then greater Europe has abolished the death penalty. It is interesting that Beccaria was against death penalty, when he generally was in favour of punishments that could either prevent offenders from committing fresh harm, or punishments as deterrent, as can be seen in the note below:

“The purpose [of punishment], therefore, is nothing other than to prevent the offender from doing fresh harm to his fellows and to deter others from doing likewise. Therefore, punishments and the means adopted for inflicting them should, consistent with proportionality, be so selected as to make the most efficacious and lasting impression on the minds of men with the least torment to the body of the condemned.”

While it may seem that Beccaria may have made the argument in favour of death penalty he was actually against it because he did not see is as proportionate to the crimes. He also was a utilitarian who focused on the utility of punishment rather than the retributive functions of the punishment. It is also interesting that Beccaria mentions that punishment should cause least torment to the body of the condemned, which would actually be a reason to be against death penalty and not for it. Thus, the principle ground on which Beccaria objected to death penalty was that it was not proportionate to the crimes. Today, death penalty is criticised and its abolition is demanded by abolitionists on a number of other grounds. One of the grounds for demanding abolition of death penalty is that there is a possibility of miscarriage of justice, which in the case of execution of death penalty closes all options of providing relief to the convict. Miscarriage of justice can occur due to a number of reasons, including, deficient processes in the criminal justice system, deficient laws, absence of factual justification for the treatment or punishment, and inefficient protection of rights of convicts, to name of few. In case a person does not receive a fair sentence from the court due to the presence of one of these factors, a person can be executed under a death penalty. There is also a possibility of factual innocence of the convict, which refers to fact that the convict may be innocent of the crime for which he is convicted. Conviction of such individuals and execution under the death penalty is also a miscarriage of justice and is one of the grounds for abolitionists to argue for the abolition of the death penalty.

One of the foremost arguments against the death penalty comes from the liberalism and humanitarianism backgrounds, wherein death penalty is considered to be incompatible with liberalism and humanitarianism. Since the 1960s, the abolitionists have argued that death penalty is inhumane and unacceptable in a liberal democracy that has a written constitution enshrining the bill of rights. One of the aspects for their disapproval of death penalty is that it is contrary to the reformative approach in modern penology, which focuses on the reformation of the individual and not retribution for crimes. The possibility of death penalty being awarded in cases that do not obviously merit death penalty is also a ground for asking for abolition of death penalty as seen in the case of Caryl Chessman, who was given death penalty for robbery and kidnapping as kidnapping was then a capital offence. The case garnered worldwide attention, with abolitionists calling for abolition of a penalty that could be given in a capricious manner. Death penalty in the United States is also opposed to on the basis of racism. This is because of the peculiar history of lynching or even legal lynching, which was practiced particularly in the Southern states. The victims of the lynching were African Americans and due to this history of lynching in the United States, abolitionists also view death penalty as a peculiarly racist institution. The linking of death penalty with racism specifically happened in the civil rights movement of the 1960s, wherein the racist Jim Crow laws and the atrocities committed against African Americans under these laws, were highlighted by the civil rights movement. Racism at that time, particularly in the South, was covert in nature, and institutions, including the judicial system, were inherently racist, where African Americans were not expected to receive justice in the same way as the whites. This also had implications for how death penalty was structured and implemented in the Southern states, where majority of the recipients of the penalty were usually African American men. Therefore, one of the arguments on the behalf of abolition has been that death penalty has more implications for the African Americans or minorities and therefore, there is a possible racist angle to the implementation of death penalty in the United States. This can be explained with the help of important cases involving death penalty awarded to African Americans only to be vacated by the Supreme Court on the grounds of lack of due process afforded to the convicts and other issues. In Moore et al. v. Dempsey, the Supreme Court vacated the execution of six African American men who were convicted under the race riot laws, on the ground that the confessions of the men were extracted under torture and the trial showed aspects of mob-dominance. In Brown v. Mississippi, the confessions of the African American men sentenced to death were taken under torture, which according to the Supreme Court, vitiated the trial leading the court to overturn the death sentences of the men. The sherriff testified in the case that he whipped the men, after stringing them upside down until they confessed to their crimes.

In Powell v. Alabama, the Supreme Court overturned the death penalty of several African American youths, who were convicted of raping two white women, as their trial was conducted under mob-dominance. Similar decision was given in Norris v. Alabama. Both the aforementioned cases arose from the same event. Interestingly, the Supreme Court took exception to the trial in Norris v. Alabama, as African American jurors were specifically excluded in the trial. The propensity of prosecution to demand an all-white jury in many trials involving African Americans was one of the reasons why there was higher rate of death sentences in cases involving African American defendants. In a case, the Supreme Court overturned death penalty in a case involving an African American man, handed by an all-white jury in a county with 1/3rd population being African American. It may be noted that these cases were challenged in the Supreme Court on procedural grounds, such as, due process, under the Fourteenth Amendment to the US Constitution, and not on moral grounds. Moral objections to the death penalty are based on existential grounds, which question the moral standing of the state to kill its citizens. These grounds are also discussed later in this section. At this point, the cases discussed so far, made out the case for abolition of death penalty on the grounds of racism which led to the violation of due process rights of African American defendants, leading to their being the major recipients of death penalty sentencing. In Furman v. Georgia, the issue of race of defendants was particularly considered by Justice Douglas, who pointed out that there were a number of cases involving crimes by affluent white people, that went without being awarded the death penalty. Justice Douglas said that the “Leopolds and Loebs, the Harry Thaws, the Dr. Sheppards” escaped the death penalty by virtue of their race and affluent backgrounds, while African Americans from poor families constituted a significant majority of people who received the death penalty as they were members of an unpopular minority or were poor and despised.

The cases discussed above show a clear racist bias in criminal justice system, at a time when the Jim Crown laws were at their highest in the Southern states. It is no surprise that the death penalty was seen as particularly adverse to the interests of the African Americans. It is in this background that the National Association for Advancement of Colored People’s Legal Defense Fund launched its challenge to death penalty. This challenge to death penalty was historic in that it was launched by an association for African Americans and that they challenged death penalty on the grounds of its being a tool against African Americans in a racist society. It is also in the light of this challenge to the death penalty, read with the abolitionist stance of the Supreme Court in the 1960s, the decade is generally considered to be a propitious one for abolitionist movement. Different to the Fourteenth Amendment use for abolitionist argument, which was procedural rather than moral; the Supreme Court also developed more moral arguments against the death penalty under the Eighth Amendment to the US Constitution. The moral line of reasoning was developed through the ‘evolving standards of decency’ in the society and the application of these standards to the punishments under the legal system. The case of Rudolph v Alabama, exemplifies the amalgamation of jurisprudence developed by the Supreme Court on the Fourteenth and Eighth Amendments in a single case. The case considered the legality and constitutionality of applying death penalty to non-lethal rape cases. The case came soon after a memo developed by Justice Goldberg suggested that capital rape may be unconstutional; interestingly, Justice Goldberg also wrote in the memo that abolishing capital rape provisions will eliminate the disparities that exist in the imposition of death penalty for sexual crimes committed by whites and non-whites. Although the case itself was decided against Rudolph, it also led to the widespread discussion on capital non-lethal rape. The dissenting opinions of Justice Goldberg, Justice Douglas, and Justice Brennan were published and became influential in the abolitionist movement.

An important objection to the use of death penalty in the United States has involved the rarefaction claim, which emphasises on the lack of pattern or objective factors based on which death penalty is given. It is argued that death penalty is given in such few cases, that anyone who actually receives it, is already a person who is being treated differently than the others. As there is nothing predictable about the patterns of death penalty, there is an objection to the penalty on the ground of lack of objectivity and the capricious nature of juries that return the penalty. This was pointed out by Justice Stewart in Furman v. Georgia, where he emphasised on the freakish and arbitrary nature of the death penalty, which could be imposed by utmost discretion by juries. In this case, the wanton and unpredictable nature of the death penalty imposition was one of the reasons why it was considered to be unconstitutional.

Criminology Theories and Death Penalty

There are two theories of punishment in criminology that are relevant to death penalty, these being deterrence and retribution theories of punishment. Deterrence theory focuses on the deterrence of the crime through provision of punishment of the nature that will deter crime. In other words, deterrence theory is based on the deterrent value of the punishment and requires the punishment to be such that deters other people from committing the same crime by invoking a fear factor in the punishment. Cesare Beccaria, who was one of the first proponents of abolition of death penalty, was interestingly in favour of deterrence punishment but that did not extend to his favouring death penalty as he considered death penalty to be disproportionate to any crime. On the other hand, other proponents of the deterrence theory have generally supported death penalty. Deterrence theory itself may be related to Specific Deterrence, which refers to deterrence of same offenders from future criminal activity; and General Deterrence, which refers to deterrence of others from committing the same crime. Those who argue against the death penalty on the basis of deterrence theory assert that there is not enough evidence that proves the deterrent value of the death penalty. A case in point is the United States, which has death penalty in most of the states but still has significantly more crime rates than some European countries have abolished the death penalty. This is a valid argument against those who claim that death penalty has a deterrence value. The retribution theory of punishment has for its basis the notion that the individual who commits a crime should be made to pay for the crime by undergoing the punishment, the gravity of which matches the gravity of the crime. One of the early proponents of the retribution theory, Immanuel Kant, argued that punishment was to be given in response to a crime wherein the wrongdoer should be made to undergo a punishment that is proportionate to the crime committed by him.

This may be taken to signify that death penalty would be a proportionate punishment for a murderer’s crime. This may find support in Rawls’ argument for retribution, wherein he argues that it is morally fitting that the person who commits a wrong, suffers in proportion to the wrong committed. Hegel, also a supporter of retribution theory, argued that death penalty is appropriate for murder because of the gravity of the offence needing to match the gravity of the punishment. It may be stated that retribution theory is rooted in the concept of punishments mirroring crimes. Those who criticise the retribution theory, may argue that it is rooted in the idea of vengeance, which makes it morally flawed. Those who support death penalty may argue that it is just and fair that those who commit crimes meet the same consequences as their victims. Death penalty is a punishment which is met out for grave and serious crimes. If seen as a punishment that carries pain of suffering for actions of the wrongdoer, death penalty can be justified. Grotius also defined punishment as “the pain of suffering, which is inflicted for evil actions”. This would signify the retributive aspects of the punishment, which will be discussed below. The justification of punishment as Grotius notes is that “it is right for everyone to suffer evil proportioned to that which he has done,” or “when we say that punishment is due to anyone, we mean nothing more than it is right he should be punished”. This would signify a support for the death penalty in cases that involve crimes like murder because by execution of death penalty, the wrongdoer is made to suffer what he made someone else suffer.

Rehabilitation Theory and Death Penalty

Rehabilitation theory has a different approach to punishment as compared to retribution and deterrence theories. Rehabilitation theory focusses on the possibility that the wrongdoer can be reformed and rehabilitated in the society. For those who support rehabilitation, death penalty is unsupportable because once executed, the individual loses all opportunities for rehabilitation. Opponents of death penalty, who argue on the basis of rehabilitation theory, argue that as there are possibilities of rehabilitation, which are thwarted by execution, and there are possibilities of wrongful convictions and miscarriage of justice, death penalty should be abolished. It is also argued that death penalty is irreversible and offers no opportunity to the individual to be vindicated in case of factual innocence being proved after execution as has happened in many cases. Rehabilitation theory was also supported by Jeremy Bentham, who like Beccaria, was a utilitarian looking for the utility in punishment rather than retribution. Bentham’s work in Introduction to the Principles of Morals and Legislation is relevant here as it is in this work that Bentham argued that utilitarian or useful actions of the law can be determined on the basis of their tendency to maximise pleasure and minimise pain of the majority of the people. Bentham also argued that the utility of punishment was its tendency to deter or reduce crime, for which Bentham proposed both deterrence (like Beccaria) and also reformation of offenders, to which end he proposed the construction of prison as per his design of the Panopticon. The design of the Panopticon is premised on the concept of reformation, correction, and rehabilitation of prisoners through surveillance and social control (Bentham, 1791). For Bentham, the only justification for punishment was the possibility of greater good of the society, through reformation of the prisoners and the ability of the punishment to provide deterrence. Moreover, Bentham emphasised on the need for proportionality before punishments were determined.

However, a counter argument to the rehabilitation argument of abolitionists is that rehabilitation is not the only purpose of punishment, and that punishment may be given to achieve different objectives and not just the rehabilitation of the offenders. This is not a new argument in favour of retention and this argument has essentially been made, especially from the point of view of deterrence over a long period of time. Rententionists have typically argued that death penalty serves important functions in the deterrence of crimes and it is not necessary that punishment be only given for the purpose of rehabilitation of the offenders. As noted in an earlier work:

“If rehabilitation and the protection of society from unrehabilitated offenders were the only purposes of legal punishment the death penalty could be abolished: it cannot attain the first end, and is not needed for the second. No case for the death penalty can be made unless "doing justice," or "deterring others," are among our penal aims. Each of these purposes can justify capital punishment by itself; opponents, therefore, must show that neither actually does, while proponents can rest their case on either.”

Another interesting point is that not everyone who supports rehabilitation, also supports abolition of death penalty. A recent research involving survey of philosophical positioning and attitude to death penalty revealed that 35.1 percent of respondents who expressed support for rehabilitation, also supported the death penalty. Admittedly, the number was smaller as compared to those who support deterrence and also support death penalty retention at 54.7 percent; however, it is to be noted that a significant number of people who support rehabilitation, also support death penalty retention. Therefore, rehabilitation by itself is not an argument that is particularly related to abolition. Those who believe in rehabilitation of the offenders do not necessarily argue for abolition, because they may consider some kinds of offenders, such as serial killers and serial rapists, as beyond rehabilitation. In such cases, it may be argued that punishment is also given for the objective of deterrence as well as protection of society by terminating the threat to the society. With respect to the last point however, that is, termination of threat posed by the offender, it may be argued that instead of death penalty life imprisonment may also serve the purpose of terminating the threat posed by the offender by keeping the offender away from the society. In any case, even if it is accepted that rehabilitation does not necessarily reject the idea of retention of death penalty; it may still be argued that death penalty must be abolished unless the legal system is able to give death penalty without potential for error and only in the most deserving cases. A framework for the same is provided in the just execution theory, which is discussed below.

Just Execution Theory

The just execution theory is at times used to support retention of death penalty on the ground that if the execution of the individual is done under just causes and is done as per the proper exercise of state power, then death penalty is justified and can be retained. The just execution theory provides the framework within which death penalty may be given and justified. However, even as just execution theory provides the framework for justified execution, it provides a high standard for measuring whether execution is just or not, and if this standard is not met the state law, then death penalty given under the law would not be justified. The standards set by the just execution theory being so high, it is rare for any state to achieve these standards through their laws and processes.

As per the just execution theory, if the execution of the death penalty is just and meets the requirements of due process, then the execution of death penalty can be justified. Therefore, just execution theory provides justification for execution of death penalty under certain circumstances. MacKinnon and Fiala explain the standards of just execution. These standards include the legitimate authority of the state to execute a person, where such authority is exercised with reference to due process of law. Secondly, there is a criminal wrongdoing by the individual which justifies execution of the death penalty. Third, execution of the death penalty is driven by the demands of justice and not vengeance. This seems to be a response to the critics of the death penalty’s retributive elements as where the execution is not driven by notions of vengeance, instead it is driven by justice, just execution theory may be applied. Fourth, the execution of the sentence should be fair and not involve any discrimination. This may be controversial in the United States, as a criticism of death penalty is that it is racialized to some extent. Fifth, the purpose for execution of death penalty should be the advancement of value of life, which may be justified on the basis of the nature of the crime and the criminal who has been executed. Sixth, execution of death penalty should not be done in a way that is cruel. This asks for prohibition of cruelty in execution of death penalty; however, in the United States, there has been much debate on the manner of execution of death penalty through lethal injections, which are considered cruel by critics. However, the Supreme Court has upheld use of lethal injections in the absence of physicians in the execution of death penalty recently. Seventh, death penalty should be given where it is the last resort for ensuring justice. Eight, death penalty is given where it leads to restoration of social equilibrium that was intervened by the act of the offender. Ninth, death penalty is given where it is the proportionate response to the crime. These standards of just execution are discussed in more detail in this section and they are analysed in the context of death penalty in the United States.

1. Legitimate authority of the state to execute a person

The legal system in the United States allows the state to carry out execution of death penalty. Legitimate power in that sense is bestowed on the state and there is no constitutional bar on the state against giving death penalty. On the contrary, the number of statutes that allow the death penalty are a testament to the fact that the American legal system has legitimized death penalty in the technical sense. However, a question can still be raised as to whether the state has legitimate authority to execute a person from a moral standpoint. In many cases the restrictions or conditions drawn on the exercise of the power to execute persons, go on to show that there is a conscious attempt to not let the state exercise this power in many cases. There is a moral presumption that the state ought not to kill its own citizens. Despite this moral presumption the state continues to exercise this power. One reason for this may be that state is increasingly taking on the role of the one that achieves vengeance on behalf of the victim of the crime. This is because there is a tendency of legal system to shut out the victims of the crimes in the legal process, as the state takes on the role of the one who has the standi to prosecute the offender. Private justice is no longer permitted and instead it is the function of the state to serve justice to the offender. Some argue that in this process of state led prosecution the victims lose their voice to articulate what they would think is justice in the case. However, that is not appropriate because the entire criminal justice trial functions to reconstruct the crime against the victim. By morally justifying the state’s power to execute offenders as a way to serve justice to the victim, there is a justifiable charge that the state becomes a party to the demand for revenge. This is inappropriate because in the modern legality, it would be difficult to reconcile the idea of revenge, which lends to concepts such as passion. It is also worthwhile to note that philosophers such as Kant, who have supported retributive punishment, have also written against revenge as a basis for punishment by the state. The use of such power by the state is fraught with moral difficulty and message. The moral content of this exercise of power cannot be doubted when it is considered that the United States stands alone in the exercise of such power among the developed, liberal, western nations of the world, most of whom have abolished the death penalty on the ground that state is not morally competent to take the lives of its own citizens. The legitimacy of the state to execute its own citizens also suffers when it is considered that there are many cases of erroneous convictions and executions that have come to light. Another aspect of legitimacy of the state’s power to execute is that the state’s agencies, including, prosecutors, judges and juries, get to participate in the process for applying death penalty, without actually being involved in the real killing, which must be done by the executioners. Another interesting aspect is that Americans are traditionally mistrustful of state power, which makes the support for death penalty counterintuitive in the American context.

2. Criminal wrongdoing by the individual which justifies execution of the death

The legal system allows the giving of death penalty in certain kinds of cases. Interestingly, death penalty is not given for every murder, which is borne by statistics that show that executions make up less than .3 percent of all murder cases. There is no acceptance of mandatory death sentences for all murder cases in the United States. There appears to be a moral angle in the denial of mandatory death penalty for each murder offence, which is supplemented by legal conditions and restrictions on the death penalty, as well as clemency provisions in the law, which lead to a situation wherein not all people who have committed murder will be given death penalty and not all death row inmates will be executed. This would mean that there is a subjective element involved in the criminal wrongdoing and its link to the death penalty. If not all murder convicts will be given death penalty, then that means that some murder convicts will be executed and many others will not. An important question that would arise here is whether there are objective factors that distinguish between those who will be given death penalty and those who will not receive this punishment for the same crime. In the absence of such objective factors, the distinction between the two can be driven by subjective factors that may call into question the fairness of the entire process.

3. Demands of justice and not vengeance

Death penalty is justified when it serves demands of justice and not vengeance. In other words, the purpose for executing an offender must be that such execution will serve justice. To some extent the American legal system has created standards that go on to ensure that death penalty is only given in the cases that merit it from a justice point of view. The application of death penalty in the United States is restrictive. Most of these restrictions serve to ensure that death penalty is given in the rare cases. However, there is a undeniable angle of media trials and intense public anger in certain cases, such as, the Oklahoma city bombing which led to the intense pressure on the criminal justice system to execute Timothy Mcveigh, even before the trial had started.

4. Execution of the sentence should be fair and not involve any discrimination

The fourth standard of the just execution theory demands that execution must be fair, which may be interpreted to mean that there are no racial, ethnic or religious discrimination against the individual to whom the punishment is applied and that this discrimination does not vitiate the justness of the execution of the individual. That there is a possibility of racial and ethnic discrimination in the application of the penalty, is a point that even the United States Supreme Court has acknowledged. It was the possibility of the racial discrimination that led to the Supreme Court putting a moratorium on death penalty in Furman, due to which there were no executions in the United States in the four years following the judgment of the court. The Court particularly mentioned that there was a evidence of freakish and capricious manner of applying death penalty, where it was based on racial considerations. If the application of death penalty is vitiated by racial prejudice that works against the African American and other minorities, then it is hard to say that death penalty is being given in a manner that is fair. This is seen in the Fulman judgment as well as in the findings of several studies that show that death penalty in the United States is more likely to be given to African American convicts.

5. Purpose for execution of death penalty should be the advancement of value of life

The fifth condition asks that the purpose of giving death penalty must be to advance the sanctity and value of life. In other words, death penalty is given so that persons who unjustly take a life also risk losing their own life as a consequence of their crime. However, as already discussed earlier, there is no mandatory death penalty which is applied in every case of murder. This would mean that there are cases where a person has taken a life but does not risk his own as the death penalty may not be given to him or her.

6. Execution of death penalty should not be done in a way that is cruel

The sixth standard under the just execution theory is the prevention of cruel punishment. Even if death penalty is considered to be justified, the manner in which it is executed becomes a question of concern in the context of cruelty. In the United States, death penalty is generally executed through lethal injections. This is a controversial area because in the recent years, abolitionists have argued that the manner of execution of death penalty in the United States is cruel. Therefore, the use of lethal injections is an area of concern. One of the reasons why the use of lethal injection has been emphasised to be cruel is that there is no mandate for there to be a physician participation in the execution process. The possibility of something going wrong in the process of lethal injection induced death, without there being a physician present, and the consequent painful death of the individual, has been considered to be a principal ground to argue that execution is cruel. This issue was raised recently in the United States Supreme Court, where the argument was that execution by lethal injection without physician supervision is cruel and prohibited under the Eighth Amendment to the American Constitution. Even if there is little research to suggest that there is actual suffering involved in the execution of the death penalty with lethal injections, there is a concern that absence of physician may be necessary to ensure that there is proper administration of injection and a response ready in case something goes wrong at the time of administration of lethal injection. It is also argued that physician present at the site where the death penalty is being administered is necessary for preventing needless suffering of the individual. The first drug that is usually administered in lethal injection is the drug pancuronium bromide, which is a drug that may lead to complications if administered in inadequate quantity or administered wrongly. This is the drug which may cause paralysis of the body, leading to a situation where an otherwise conscious individual to whom the drug is administered, will be aware that he is suffocating to death, while paralysis prevents him from saying or doing anything about it. This drug has been a controversial part of the lethal injection debate in the United States, as those who favour abolition of death penalty argue that administration of this drug is akin to cruel treatment.

The possibility of cruel death is one of the grounds based on which the American Pharmaceutical Association, declared in February 2015 that they discourage pharmacist participation in executions as this goes against the role of the pharmacists as health care providers. In fact, some pharmaceutical companies have gone so far as to say that their drugs be not used in the composition of lethal injections in the United States. For instance, Pfizer have said that do not allow their products to be used for composition of lethal injections for the execution of death penalty. Pfizer is not the only European company to refuse to sell their drugs for use in lethal injections. Another corporation, Hospira, which manufactured the drug sodium thiopental, which is also used in the lethal injection, ceased production of the drug so as to prevent the use of the same for executions. Doctors too are prohibited by their code to participate in execution, because a doctor’s function is to help people under the Ethics of Care principle, and not to assist in the killing of anyone. This means that executions are conducted in the absence of physicians irrespective of the unnecessary pain or other complications that may arise at the time of the execution by lethal injection. Execution of a person by lethal injection can take up to 10 minutes to complete; and each execution is unique because of the person’s biological and genetic makeup which may produce different kinds of reactions to the drugs in the lethal injections. Botched executions are not rare in the history of lethal injections execution in the United States. Between 1976 and 2014, there were forty three cases of botched up executions around the United States. The reasons for these botched up executions ranged from improper administration of the IVs, unnecessary prolongation of the execution process, and related issues that led to the execution not being carried out properly. These issues could be avoided if physician would be present at the time of the execution. The Supreme Court allows the states to continue executing people via lethal injection in the absence of physicians. This could be because the alternative to lethal injections have also proved to be equally difficult. Electrocution is also a painful method for executing a person and there are significant number of botched up executions via electrocution. Hanging, beheading, and shooting, methods that are adopted in countries that allow death penalty, have been found to be barbaric or unacceptable in the United States. In light of the lack of suitable alternatives, the decision of the Supreme Court in Baze v Rees, can be seen as the court’s acceptance of a lesser evil. However, that may not be sufficient or adequate argument under Eighth Amendment of the Constitution, which bars cruel punishment.

7. Last resort for ensuring justice

A principle has evolved over a period of time that death penalty be given only in the cases where the crime is so rare and gruesome that nothing less than a death penalty would serve the purpose of justice. To some extent, the United States has developed mechanisms, mostly through the jurisprudence developed by the Supreme Court, which ensures that death penalty is given only in the rare cases. However, there is a tendency of the juries to return a sentence of death penalty in a capricious manner because it cannot be said that death penalty is given on the basis of any objective factors.

8. Restoration of social equilibrium

Restorative justice aims at restoring to the society the equilibrium that was lost due to the act of the offender. Death penalty may be justified on the basis that some crimes are of such nature, that they violate the social equilibrium. This is particularly true of serial killings and sexual offences of a gruesome nature. However, it is not necessary that all such crimes receive the death penalty because there is a subjective element to how juries decide on and return the sentences of death penalty. These sentences are not uniformly given in all offences. Therefore, it is not necessary that death penalty is always applied to restore the social equilibrium.

9. Proportionate response to the crime

Due to the demand that punishment be a proportionate response to the crime committed, death penalty is reserved for murder cases, as only in these cases would the penalty seem to be a proportionate response to the crime. The standards of just execution theory are not easy to attain in any legal system, which may mean that it is practically impossible to apply just execution theory in any jurisdiction. In the United States itself, there are clear indications of the violation of some of these standards. There are indications that death penalty is impacted by factors of race. The execution of death penalty through electrocution and lethal injections, is also considered to be cruel by many critics and there is research that shows that use of lethal injections, especially in absence of physicians may lead to painful death.

Public Support for Death Penalty

One of the biggest arguments advanced by retentionists in United States is that there is significant public support for death penalty, therefore, it should not be abolished. On the other hand, abolitionists argue that public support for death penalty can be driven by using an emotive rhetoric or politically charged arguments, which does not necessarily convert to morally justified arguments in favour of death penalty. However, the argument that public support is a justified ground for continuing with the death penalty is not just an emotive argument, but one that has found resonance within the United States Supreme Court itself, which has acknowledged the significance of public support for death penalty as a ground for continuing with the penalty. The Supreme Court had stressed on the importance of public opinion and public support for the purpose of identifying and justifying the criminal sanctions that are to be imposed in the society. In the same case, the Supreme Court also considered retribution to be an important factor for justification of death penalty. It will be useful to reproduce here the passage from the judgment, which focuses on the link between death penalty and public opinion, which is as follows:

“In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.”

There are three important points from the above passage in the judgment, which may be noted here. First, the court considered capital punishment to be an expression of moral outrage of the society; or in other words, capital punishment was more the social demand for certain offensive conduct. Second, the court admitted that the function of capital punishment, while an expression of moral outrage by the wider society, may still be unappealing to many members of the society. Third, that even if the function of capital punishment was unappealing to many, capital punishment was still considered to be essential in a well ordered society in order to allow citizens legal processes that will vindicate their wrongs rather than take the law in their own hands. This last is interesting in that it shows that the Supreme Court acknowledged that by giving the capital punishment to certain offensive criminal conduct, the state was merely doing something on the behalf of the wronged person and ensuring that the wronged person does not take the law in their own hands. This is the link to retribution or even an ‘eye for an eye’ approach, which says that the function of punishment is retribution. It is interesting because the Supreme Court was referring to a retributive instinct that is present in people for justifying the capital punishment. This aspect of the judgment has been criticised for being provocative. It has been argued that by legitimising the thirst for revenge that may be the driving force behind public opinion in support for death penalty, the Supreme Court supports the setting of the public policy on controversial, difficult and emotive grounds. A desire for revenge, as referred to as retribution in the judgment, cannot be an appropriate basis for public policy on death penalty, even if the court considered this to be more about public demand for just desserts. Therefore, one of the criticisms against using public support as a sole measure for deciding on retention of death penalty is that public support can also mean that there is strong possibility of death penalty being supported as a way for revenge. The judgment of the court in Gregg v Georgia, is not an outlier, and the line of judgments by the Supreme Court over the years before this judgment has shown a tendency of the court to see the legitimacy of the punishment within the context of the public opinion. For instance, in an earlier case, the Supreme Court held that the definition of cruel and unusual punishment had to be decided on the basis of the evolving standards of decency in the society. Clearly, the Supreme Court has linked the justification of death penalty with public opinion. This approach of the Supreme Court may be seen in the context of policy making in a democracy, where the representatives make the law based on majority opinion, which makes public opinion an important ground for retaining death penalty. However, this may not always be a correct approach by the Supreme Court because it is not enough to see what the majority opinion is, the Court must also discern the reasons why the majority chooses what it does and what that choice means for the minority.

To make the above argument clearer, it may be mentioned that surveys and research have indicated that support for death penalty is driven by racial considerations, which is the reason why death penalty has traditionally found the most support amongst the white males. Therefore, it is not enough to see what majority (in this case, White American males) want, but what that may mean for the minority and how racial aspects are also involved in the issue. In the United States, the demographic majority is still the white community, which is the most numerous and politically powerful racial group in America. The majority support for death penalty is also seen in this group and white support for death penalty has always outstripped other racial minorities. To get this in the right perspective, it will be useful to remember that the American criminal justice system has traditionally been skewed against minorities, particularly African American men. Research shows that African American men are disproportionately represented in American jails, and even the law disproportionately targets men from the African American communities. This may be a reason why polls, surveys, and research have traditionally shown that African American men are overwhelmingly against the death penalty.

The possibility of racial prejudice in attitudes towards death penalty is an important consideration in context of validity of public opinion as a deciding factor for retention of death penalty in the United States. This point may be supported by the findings of a research on white racism and support for death penalty, which show that in the differences between the support for death penalty in white and African American responders, at least one-third of the difference in support for the death penalty can be attributed to the influence of white racism, and that among the non-racist whites, the support for capital punishment is similar to that of African Americans. These findings are interesting because they reveal the importance of race relations in understanding the politics of death penalty and how these politics impact policy on retention of death penalty. For this reason, death penalty is considered to be symbolically important to both African American and white communities in the United States. Support for death penalty in white community has been explained in theoretical contexts of racial threat, racial stereotypes and racial resentment. The conflict theory has been used to explain that in the conflicts between white and African American and minorities, support for death penalty has been used by the white retentionists as a way to continue dominating the minorities, as the criminal justice system may be seen as an institution that can be controlled by the majority, and through which the minorities may be controlled by using the instrument of punishment. The white majority may also view the minorities, particularly African American minorities as dangerous and a threat to order in the society, and they may view the death penalty as an effective method for controlling and suppressing the dangerous minorities. It is also probable that for the white retentionists, there may be a perception that African Americans form the majority of criminals and are most likely to represent the larger proportion of inmates on death row, and therefore, retention of death penalty may be seen as an effective way of eliminating dangerous African American men. In other words, racist white retentionists may support death penalty because they are of the opinion that it is African American men who are more likely to be criminal, and more likely to be on death row, therefore, more likely to be affected by retention of death penalty. An interesting insight as to why white racists may believe that African Americans are more likely to be criminal is given in a research by Feagin and O'Brien, who argue that disproportionate rate of crime among African Americans is generally attributed to cultural deficiencies, and not to the possible systemic consequences of white racism, with these cultural deficiencies being explained as disorganised families and communities. Thus, there is a possible explanation of why white racist retentionists may support death penalty.

Given the racial divide in attitudes to retention of death penalty, it is difficult to base the retention of death penalty on the support it derives from public opinion, as public opinion in this context is itself very complex and has racial aspects and implications for minorities. If the findings of the different research studies are taken into consideration, then there is ground to argue that the retention of death penalty may have specific negative implications for racial minorities in the United States; or that the support for death penalty for the large part derives from the belief that it is minorities that are usually impacted by the death penalty. In either case, the public opinion on death penalty would not be appropriate for justifying the retention of death penalty. It may also be worthwhile to note that research indicates that public support for death penalty may be affected by information and that the information on deterrence and innocence may have an impact on public support for death penalty. The thesis that public opinion on death penalty may be changed through information has also been called the ‘Marshall hypothesis’ as it was first proposed by Justice Marshall. Justice Marshall noted in this case that the support for death penalty was largely due to a lack of knowledge or information about death penalty, and if people were fully informed about the nature of death penalty, the methods of executions and the processes involved, the great mass of citizens would conclude that the death penalty was both immoral and unconstitutional. Recent research that has sought to understand how information may impact public opinion on death penalty, finds that there is some support for the Marshall hypothesis as death penalty supporters were found to be less informed than death penalty opponents. Moreover, exposure to information about death penalty and knowledge gains was found to be linked with attitudinal change towards death penalty support. Interestingly however, retributivists’ attitudes toward death penalty were found to be largely unaffected by information and were found to be resistant to change as compared to those who were not retributivists. This indicates that public opinion on death penalty is most resistant to change among those who believe in retribution.

This section has shown that even if public opinion is used to justify death penalty, there are valid arguments against this approach. Public opinion may be driven by thirst for revenge or retribution, it may be racially motivated, and it may be prone to change with more information. These factors indicate that public opinion cannot be used as a sole ground for retaining death penalty.

Conclusion

The overarching question for this dissertation was whether death penalty ought to be abolished. In order to answer this question, both the arguments for abolition as well as retention, were considered. In particular, regard was had to theoretical positions in theories of punishment, particularly, deterrence, retribution and rehabilitation. The dissertation also considered the legal and constitutional aspects of the arguments for abolition and retention of death penalty. The dissertation considered the just execution theory as well for analysing whether it is possible to continue the death penalty based on the framework provided by the just execution theory, which does not relate to questioning the moral basis for retention of the death penalty, but lays down the conditions which must be followed in order to ensure that execution of an individual is just. Based on the analysis in the above sections, this concluding section of the dissertation concludes on the question raised as to abolition of death penalty. The conclusion that the dissertation comes to is that there is much to be said for arguments in favour of abolition of death penalty and little to justify the arguments made out in favour of retention of death penalty. The reasons for the conclusion are explained in some detail in this section.

The arguments for abolition or retention of death penalty, may be moral as well as legal and constitutional. Moral arguments on death penalty are related to the moral agency of state to kill its own citizens or the morality of the death penalty as a punishment. Legal and constitutional arguments on abolition and retention of death penalty are related to the legal or constitutional provisions that may support or reject death penalty. With respect to the legal arguments, the focus has been on the Eighth Amendment to the United States constitution, which is related to cruel punishment; and Fourteenth Amendment to the constitution, which is related to the due process requirements in the criminal justice system. The Eighth Amendment also relates to the moral argument to an extent because it may be used to consider whether death penalty is a cruel punishment, and therefore, justified. The Supreme Court has at times shown a tendency to view it as such, most notably in the case of Furman v. Georgia, which saw the Supreme Court declaring execution of death penalty to be unconstitutional and also led to the moratorium on death penalty for a period of four years. However, admittedly, the stance by the Supreme Court on death penalty being unconstitutional is not the usual stance and since the lifting of the moratorium on death penalty in Gregg v Georgia, the Supreme Court has never gone back to its stated position in Furman v. Georgia. Nevertheless, the issue of moral validity of death penalty remains a valid and strong argument for the abolitionists. This moral argument derives its force from the liberal and humanitarian traditions and philosophy, which has tended to view death penalty as a barbaric and an inhumane form of punishment. It may be noted that Justice Marshall’s judgment in Furman v. Georgia, particularly noted that by abolishing the death penalty, the United States would join the league of those countries that have shown themselves to be more civilised and humane with respect to the question on death penalty. Justice Marshall also noted that death penalty was barbaric in nature. Abolitionists of the present time as well, argue that continuation of death penalty is inhumane and barbaric and therefore, this form of punishment ought to be abolished. As a support for that argument, abolitionists note the growing number of nations that have already abolished the death penalty. Most of these countries are liberal western democracies of which the United States is a part, but with respect to the death penalty, the United States is an outlier. In contrast to the modern western democracies, the United States continues to keep the death penalty. Therefore, abolitionists argue that the continuation of death penalty in the United States is not morally justified.

Even if it is argued that the United States has the right to make laws for itself based on its own experiences and that their laws need not be influenced by the moral arguments presented by other states, moral arguments against the use of death penalty can still be made out on the basis of the just execution theory. The just execution theory does not say that death penalty is in itself immoral; but that unless the execution of an individual satisfies the conditions of just execution framework, then such execution is unjustified. These conditions relate to due process, as well as other requirements, which would allow the state to justify the application of the death penalty. In the United States, as this dissertation has showed, the continued application of death penalty goes against many conditions of the just execution framework. As this dissertation showed, there is a possiblity of bias in the criminal justice system against the African American and minority defendants, which can be used to argue that there is a possiblity of unjust execution due to racial bias against African Americans and minorities. Another condition of the just execution theory that is not satisfied in the United States relates to the avoidance of cruel punishment. In the United States, death penalty is given through lethal injections in most cases. Earlier elecric chairs were used, but after a few botched executions in the electric chair, the lethal injection became the preferred mode of executing offenders. The problem with the lethal injection is that physicians are not present at the site, due to their professional aversion to killing people instead of saving them. This has led to situations where some drug in the lethal cocktail reacting adversely on the offender, which in the absence of physicians, has led to botched executions.

Moreover, there are European pharmaceutical companies that have stopped selling some of the drugs in the cocktail so as to prevent their usage in lethal cocktails, and American companies, unable to prevent this, have stopped making some drugs altogether. Due to this moral stance on lethal injections, there is a paucity of drugs as well. Research is not clear on the effect of lethal injection and whether these injections lead to a painful death or not, because the drugs paralyse the individual at the very beginning, so that he is not able to shout or scream. It takes many minutes after that for the individual’s heat to stop beating. It is possible that death is painful and the minutes leading up to death, may also be scary for the individual. Therefore, lethal injections may argued to be cruel method of executing an offender. On this ground as well, the just execution theory is not satisfied. Indeed, on this ground, even the Eighth Amendment of the constitution may be used although so far the Supreme Court has allowed use of lethal injections even in the absence of physicians. However, this may be due to the lack of empirical evidence on the possible link between lethal injections and painful death. In this case, the uncertainty on the issue should be sufficient for considering the use of lethal injections as unconstitutional under the Eighth Amendment.

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Four conclusions are clearly drawn in this dissertation. First, the dissertation concludes that there is a definite racial angle to the death penalty. Even if the United States has come a long way since legal lynching was allowed and the Jim Crow laws were applied in the Southern states, there are still valid and justified concerns that the criminal justice system often sees a prejudice that works against the interests of the African American and minority defendants. Due to this, the processes of the criminal justice system and the death penalty is seen to be particularly disadvantageous to the African American and minority defendants. The evidence on the link between death penalty and race factor, is not just empirical or anecdotal; but is contained in the caselaw of the Supreme Court, which shows how the Supreme Court has time and again overturned the decision of the lower courts sentencing African American defendants to the death penalty, because of lack of due process or evidence of clear prejudice. Second, the method of execution of death penalty is not in accordance with just execution or the Eighth Amendment to the constitution. This is because there is cruelty involved in the use of lethal injections as these first paralyse a person so that he cannot screamed while being perfectly aware and conscious as his organs start shutting down.

Third, death penalty does not serve any purpose other than retribution. There is no clear link between death penalty and deterrence and there is no research that has conclusively proved that death penalty has led to the decrease in crimes. Moreover, the confidential nature of the actual execution which sees only a few present, does not seem to link to deterrence in any way. If protection of society is considered, that too can be done by imprisoning the prisoner for life instead of executing him. Therefore, there is no link between death penalty and deterrence or protection of society. The only purpose that death penalty seems to serve is retribution or even vengeance. In case of trials that see intense public outcry, the issue of retribution takes upper hand. There may also be demands for death penalty from extreme public reactions to the crime of the offender. Even though at times such public reaction may be justified, it cannot form the basis for the giving of the punishment. In any case, public opinion on death penalty can be driven by emotive causes as well, in which case, death penalty on the basis of public opinion cannot be justified. However, when death penalty is given only because there is intense public and media interest in the trial and great demand for death penalty, then the purposes of death penalty are linked most obviously to vengeance. This cannot be the basis for applying death penalty.

Fourth, there is no uniformity in the application of death penalty. Death penalty is not always awarded by the jury even in capital offences. There is a capricious angle to how death penalties are awarded in certain cases, and not in certain other cases. This means that the offender to whom death penalty is awarded is already distinguished from those to whom death penalty was not awarded even in the case of similar crimes. Therefore, there is a subjectivity and discretion given to the jury to decide whether or not to impose death penalty. Research shows that death penalty is more easily awarded in case the defendant is African American or from a poor background, whereas, jury may hesitate to award the same punishment to someone who is white or from an affluent background. In fact, this point was also noted in Furman v. Georgia, where the judgment notes that the affluent defendants are more likely to not be awarded death penalty. This shows the whimsical nature of the process of awarding the death penalty in the United States. Moreover, the whimsical and capricious patterns of death penalty awards also means that it can hardly serve as a deterrent when there is no certainty as to the award of death penalty. This is another point that goes against the argument that death penalty should be retained because it serves as a deterrent. Moreover, this point also goes to show that death penalty awards may be unfair because some offenders may be given death penalty for offences wherein others are not. Based on the conclusions above, it may be emphasised that death penalty is no longer justified. In light of this, it is not justified to continue death penalty on the statute books. Even if moral grounds of abolition are not considered, death penalty retention fails on legal and constitutional grounds, as well as on the notions of just execution theory. Therefore, it is time to reconsider death penalty and perhaps repeal it from the statute books of the United States.

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