Is the Death Penalty a Necessary Evil?

Stephen H. Unger
January 5, 2012

Capital punishment is not a significant cause of death among the US population of more than 312 million. More Americans are killed annually by lightning strikes, an average of roughly 74, than the approximately 45 who are executed. But the principles involved are important and the controversy is heated. For a brief history, see [McFeely].

Arguments for and against the death penalty involve both theoretical and practical considerations. What would be best in an ideal world might not be acceptable in the one we live in. What are the arguments for and against capital punishment?

The Case for Capital Punishment

Many believe that the possibility of winding up on death row is a powerful argument against committing a capital crime (i.e., murder. The last execution in the US for a crime other than homicide, in this case, robbery, occurred in 1964). If indeed the death penalty is a significantly stronger deterrent than the usual alternative, life in prison, then a case could be made that the existence of the death penalty is likely to save more lives than it takes, and that the lives saved are likely to be those of innocent people.

A variation of this argument is that, regardless of how effectively the death penalty might deter potential murderers in general, it is 100% effective in deterring executed murderers from repeating their crimes.

If there is good reason to believe that a particular convicted murderer might kill again, given the chance, then the alternative to execution would be a long, perhaps lifetime, prison sentence, to protect the general public. For such people, costly prisons are needed, and it is necessary to have prison guards whose working lives are spent in proximity to very dangerous individuals. In effect, for each killer so sentenced, we are sentencing prison guards as well. If not needed for such work, these guards might serve society in other useful and less onerous occupations.

In primitive societies lacking formal mechanisms for apprehending and punishing criminals, it is common for families, or broader kinship groups, to try to avenge the killing of members. This is generally undesirable as it can lead to endless cycles of killing. An important function of a criminal justice system is to head off such reactions. But, in the case of particularly horrific murders, the families of the victims sometimes feel that anything short of death would be grossly inadequate punishment. So the death penalty might be considered as satisfying the need for justice, or, in some cases, vengeance, on the part of people who lose loved ones to brutal killers.

The Case Against Capital Punishment

The deliberate taking of life by a government acting as an agent of the people sets a bad example. It constitutes an exception to, and hence a weakening of, the rule against killing people.

Apart from any theoretical arguments, the actual history of capital punishment in the US does not make pleasant reading. Despite repeated efforts at reform, it is clear that our judicial system, at all levels, does a very poor job adjudicating capital cases. It isn't all that great for non-capital cases, but in these the cost of erroneous convictions is not so great and irreversible. During the period from 2000 to 2007, an average of 5 death row inmates per year were exonerated, an increase over past years [DPIC-1]. This may be only the tip of the iceberg. In most jurisdictions, there is substantial resistance on the part of prosecutors and judges to conceding that serious errors are made in such cases. It takes great efforts to win such appeals, even where the grounds for reversal are very solid. It is reasonable to assume that other bad verdicts are not corrected because the necessary legal firepower is not available, and/or the evidence is less compelling.

In many cases, successful appeals were based on DNA evidence clearly indicating that the defendant was not guilty. Suppressed evidence, recanting witnesses, or witnesses improperly pressured and coached by the prosecution were shown, in many cases, to have caused erroneous convictions. Grossly inadequate defense is a major cause. Quality of counsel is a critical factor in capital cases. The defense of those in low income brackets is generally in the hands of court appointed attorneys or PDs (public defenders). PDs are often inexperienced, usually greatly overworked, and are seldom able to devote adequate time and energy to their clients' needs. Sometimes a high quality attorney is assigned to, or volunteers to, defend a poor person, but most court appointees are not very effective.

On the other hand, when wealthy people are charged, they hire teams of top notch lawyers and investigators. Eminent expert witnesses are called upon as needed. Note that even most middle income people would have a hard time paying for an adequate legal defense. Lewis E. Lawes, Sing Sing prison warden for 21 years, supervised executions of 303 prisoners. He strongly opposed the death penalty. He is quoted as saying,"Did you ever see a rich man go the whole route through to the Death House? I don't know of any." [Blumenthal].

Altho racial bias is not generally as blatant as it was a half century ago, it is by no means absent from our judicial system. Blacks, in particular, are still victims of bias in court rooms, and not just in the South [Radio]. This has been shown in appeals of a number of capital cases. A sickening example of systematic bias is a training video used to teach new Philadelphia prosecutors how to choose "unfair" jurors, with emphasis on excluding blacks, particularly black women [Tabak].

Prison personnel who have to participate in the actual execution of convicts, dragging them into the death chamber, strapping them onto a table, etc., are themselves undergoing extraordinarily unpleasant experiences.

A Closer Look at Deterrence

Where the death penalty has been ruled out, the maximum sentence for murder is life imprisonment without the possibility of parole. A critical question is the annual number of murders that are deterred by the difference between the penalties. It is very difficult to determine this number. If a state A, with the death penalty, has a lower murder rate than state B without the death penalty, does this mean that the death penalty successfully deterred many potential killers in A, or does B simply have many more murderous inhabitants than A?

By choosing various combinations of states one could "prove" that capital punishment does—or does not —deter potential murderers. For example, the homicide rate (murders per 100,000 inhabitants per year) for Texas, by far the leading state in executions, is usually less than that for Michigan, which does not have the death penalty, but it is consistently higher than that for Maine, which also does not have capital punishment. The average homicide rates for those states that have the death penalty consistently exceed, by a substantial margin, the rate for those without it (e.g., in 2010 the numbers were 4.6 and 2.9 respectively) [DPIC-2]. While this fact does not prove anything, it does suggest that the death penalty is not a powerful deterrent.

Apart from statistics, we might just ask, as a matter of common sense, how effective capital punishment is likely to be as a deterrent. At first glance, it might seem obvious that the possibility of a death sentence would strongly discourage trigger pulling. But actually, psychologists generally consider the prospect of quick, certain punishment to be much more effective in influencing behavior than remote, uncertain punishment, even if the latter is much more severe. Capital punishment, tho obviously the most severe, is clearly very far from being prompt and certain. Let's look at this question in more detail.

Consider a common crime such as a liquor store robbery. It is not unusual in the course of such an event for a resisting proprietor to be shot dead, even tho the robber did not enter the store with that intent. In such cases, where a homicide is an unintended side effect of another crime, there is not much opportunity for deterrence to have an effect.

Murders committed in the heat of passion, or where the killer is out of control, perhaps due to alcohol or drugs, are not likely to be prevented by thoughts of possible extreme punishment.

The kinds of people, often very young, involved in highly dangerous activities such as gang wars, or the drug trade, where killing is a common occurrence, are also highly unlikely to worry about possible remote consequences of their actions. Nor, for very different reasons, are killers involved with organized crime.

Where a homicide is carefully planned, for example a spousal killing to collect life insurance, the murderer, who expects to evade detection, does not consider the consequences of failure. So, again, deterrence is not likely to come into play.

It is hard to think of a plausible situation where someone would commit murder despite the possible penalty of life in prison, but would back off this action if there was, in addition, a very much lower probability of being executed.

Murder by the Wealthy

I'm sure that the number of wealthy people committing murder in the course of armed robbery is vanishingly small. But I would guess that killing a spouse in a jealous rage is something that rich people are about as likely to do as middle class or poor people. The same might be said about murders committed under the influence of alcohol or drugs. Wealthy people might also be motivated to kill for financial reasons, e.g., disputes over inherited fortunes, or business matters.

Let's define the super-rich as those in the top one thousandth of the population by wealth. In general, with the exception of street crime and hold-ups (which account for about a quarter of all homicides), there is no evidence that rich people are significantly less likely than other people to commit murder under similar circumstances. Let's generously assume they commit murder at half the rate other people do. There are, roughly, 15,000 US homicides annually; assume half of them result in convictions. So, on average, we ought to see something like (1/1000)(1/2)(1/2)(15000)=15/4, or about 4 super-rich people convicted of murder every year. When is the last time you heard about such a case?

Major crimes causing the deaths of many innocent people, which can only be committed by wealthy people, are rarely subjects of criminal investigations and prosecution. For example, there are high level executives of tobacco companies who, in years past, deliberately suppressed data that clearly indicated the deadly effects of cigarette smoking, and consciously launched advertising campaigns to persuade young people to smoke. This resulted in untold numbers of deaths. Despite extensive investigations, which produced voluminous evidence of wrong doing, none of these executives were ever tried for any crime. [Lepew].

Weighing the Arguments

Philosophical arguments about the desirability of such institutions as capital punishment can't properly be settled by pointing out how they are resolved elsewhere in the world, but nevertheless such information can be interesting and might stimulate deeper thought. In the case of capital punishment, the US occupies a strange position internationally. All European countries have abolished this practice, and there have been no executions in the Western Hemisphere outside our borders since 2006. (Many Western Hemisphere countries still have capital punishment on the law books, but rarely use it. For example, altho the death penalty is still a legal option in Jamaica, the last execution there occurred in 1988.) Worldwide, by far the most executions take place in China (estimated at over 2000 in 2010), followed by Iran 252, North Korea 60, Yemen 53, US 46, Saudi Arabia 27, Libya 16, Syria 17, Bangladesh 9, Somalia 8 [Wikipedia]. Should we be proud to be members of this distinguished top-ten club?

Within the US, 16 states have abolished the death penalty. Public support for it has fluctuated widely since 1936, ranging between 43 and 80 percent (currently at 61%). But, altho people currently approve of the death penalty by a margin of nearly two to one, they are almost evenly split when asked to choose between the death penalty and life imprisonment without parole, and only about a third believe that the death penalty deters murder [Gallup]. Over the past decade the murder rate, the death sentence rate, and the execution rate have all been falling. There were 75 death sentences passed and 43 executions in 2011. There are currently about 3250 people on death row in the US. Most death row inmates, as a result of appeals, are eventually resentenced to life in prison, some receive shorter sentences, many die of natural causes, some by suicide. Some are acquitted on appeal. On average, those executed live on death row for about 14 years.

There are people, fortunately very few, who are so vicious as to constitute a continual threat to the lives and well being of all who come in contact with them. They are generally that way starting in childhood, often causing grief to many, and there are no known ways of "curing" them. Many psychopaths are crafty people with winning personalities, which makes them even more dangerous. What should be done when such people are convicted of homicide?

If we had great confidence that our criminal justice system were such that a guilty verdict, and the subsequent appeal process, would almost never result in the condemnation of an innocent person, then a good case could be made for the death penalty. The big advantage over life imprisonment would be a guarantee that the subject would not kill or hurt anyone else, particularly prison guards.

A principal drawback is that a public policy allowing the deliberate killing of humans, even vicious murderers, weakens the social barrier against killing people. It makes it easier for people to decide, under quite different circumstances, that some other argument also justifies killing. Some researchers claim that what they call the "brutalizing effect" of executions can cause increases in the homicide rate.

Unfortunately, there is little reason to have confidence in the fairness and and competence of our adversarial judicial system, where outcomes are heavily dependent on the relative skills of the opposing attorneys. Strong biases based on income create a world of difference between the treatment of wealthy people and others. Middle class people usually can't afford to hire top-of-the-line attorneys and investigators, so they are likely to get less competent defense. Poor people, forced to rely on court appointed lawyers or on over-worked public defenders, generally fare even worse. At the bottom are Blacks, who, in addition to being over-represented among the poor, are frequently the victims of racial prejudice.

Death by execution, regardless of the mechanism used, is exceedingly cruel, as the subjects have to live thru days, or perhaps weeks, counting off their remaining hours of life. One could argue that a person guilty of murder deserves this agony, but imagine what it must be like for a wrongly convicted innocent person. Extended imprisonment is bad enough, but at least there is a chance that the truth will eventually prevail. There are cases of verdicts being reversed after decades have elapsed.

It is not hard to understand, and to sympathize with, grieving family members who want the murderers of their loved ones to suffer the most extreme punishment. But it does not follow that such desires should be fully accommodated. Life imprisonment is a bit more than a slap on the wrist. Note that by no means do all survivors of victims thirst for this degree of vengeance [MVFR].

The case against capital punishment, based on the seriously flawed nature of our judicial system and the undesirability of lowering the social barrier against killing, might be overcome if it could be shown that the incremental deterrent effect of the death penalty over life imprisonment prevented the murder of a significant number of innocent people. But, as sketched above, this does not seem to be the case [Fagan], altho some scholars disagree [Muhlhausen], and it is not a matter susceptible to incontestable proof.

Ending Capital Punishment

Taken as a whole, our criminal justice system is not doing a good job. Our prisons are serving as a very expensive system for creating, training, and brutalizing criminals, to the detriment of law abiding citizens [Unger]. Poor people and downtrodden minority groups are badly treated.

When I consider the serious defects of our criminal justice system system, and add in the argument that the death penalty weakens the rule against killing people, my conclusion is that, on balance, altho the arguments are not overwhelming, we ought to abolish capital punishment.

There are several ways in which this might occur in the US. One is via a gradual process whereby individual states, as well as the federal government, enact repeals over a period of time. This might not go to completion, as it is possible that, in some states, capital punishment might remain on the books but not be used (this has occurred in several nations.) A more dramatic ending would be the passage of a constitutional amendment ending capital punishment everywhere in the country, but there isn't enough public support to bring this about in the near future. Most probably, over time, more states will opt out of the capital punishment business, and the overall number of annual executions will continue decreasing.


Ralph Blumenthal, "A Man Who Knew About the Electric Chair", Judiciary of the United States Senate, NY Times, November 6, 2011

DPIC-1, "Facts About the Death Penalty", Death Penalty Information Center

DPIC-2, "Death Penalty Information Center", 2011

Jeffrey Fagan, "Deterrence and the Death Penalty: a Critical Review of New Evidence", the New York State Assembly Standing Committee on Codes, January 21, 2005

Gallup Poll, "Death Penalty", Gallup Polls, 2011

Pepe Lepew, "How Big Tobacco got away with the Crime of the Century", Pepe's Non-Smoking Party Lounge, March 28, 2011

William S. McFeely, "Trial and Error: Capital Punishment in U.S. History", History Matters, January 2001

Bob McNamara, "Death Penalty Mistakes The Rule", CBS News,February 11, 2009

David Muhlhausen, "The Death Penalty Deters Crime and Saves Lives", Testimony before the Committee on the Judiciary of the United States Senate, August 28, 2007

MVFR, "Family Stories", Murder Victims for Reconciliation

Radio Works, "Deadly Decisions", American Public Media, Summer, 2003

Dudley Sharp, "Death Penalty and Sentencing Information In the United States",, 10/1/97

Ronald J. Tabak, "Racial Discrimination in Implementing the Death Penalty", American Bar Association

Stephen H. Unger, "Brutal Prisons Are Hurting Us All", Ends and Means, January 20, 2010

Wikipedia, "Use of capital punishment by country", Wikipedia, February 14, 2011

Comments can be sent to me at unger(at)cs(dot)columbia(dot)edu

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