The Death Penalty

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Publisher’s Note

The Death Penalty is one of the greatest points of contention within our country. Even within political parties, the morality and legality of the Death Penalty is hotly contested. Our contributors do a commendable job making arguments in favor of, and in opposition to, the Death Penalty.


The Faireway Staff

The Case for the Death Penalty


Jorge Plaza, University of Notre Dame

Our increasingly divided political climate has pushed many bipartisan stances fallen off the common ground. 20 years ago, the American public seemed to have reached a general consensus regarding capital punishment. Gallup polls found that, in 1994, support for the death penalty reached a historic high of 80%. In the following 1996 presidential election, both Bill Clinton and Bob Dole promised to pass legislation that would expand the number of criminal executions.

Recently, however, support for the death penalty has been dying. According to the same Gallup poll, public support has dropped down to 49%. This change in the public mood is reflected by the 2016 shift in the Democratic Party’s platform, which now calls for the abolition of the death penalty. Since the Second Vatican Council in the 1960s, the Catholic Church has expressed opposition to capital punishment. This position was further solidified by Pope Francis, whom has deemed the practice as inadmissible.

On the right side, it is important to note that support for capital punishment does not necessarily follow from conservative natural law philosophy. According to natural law theory, there are objective moral principles that can be attained by human reason and ought to reflect human law. These moral principles find themselves in nature, therefore, acting contrary to objective morality disrupts the natural order. Proponents of natural law, especially Catholics, contend that the death penalty is inconsistent with the theory’s emphasis on preserving life. Though the Vatican holds a harsh oppositional stance, there are still many non-Catholic (and Catholic) natural law conservatives that express valid status quo arguments.

The issue at hand is very sensitive with many points of view. I believe that both sides ought to have their best arguments presented. This article is meant to give an honest account of the popular conservative position for the sake of meaningful public discussion.

Let us first consider the case of Junko Furuta. On November 25th, 1988, she was kidnapped and held captive for 40 days by 4 fellow classmates. Over the course of these 40 days, Furuta was reportedly raped over 400 times.. She was beaten until she would go into convulsions, she could not consume any food or liquid without vomiting, she was lit on fire multiple times, and after she finally passed away from her injuries, her body was placed into a 55-gallon drum which was then filled with wet concrete. One of the assailants, Jo Ogura, reportedly bragged about his crimes. Ogura was released in August 1999, serving only 8 years in prison, but he was arrested again in July 2004 and sentenced to 7 years in prison for kidnapping, assault, and battery.

The sentencings for Furuta’s case were firmly criticized for being far too lenient by the public. Given the severity of the crimes, many would argue that the only justifiable punishment is the death penalty. If we admit that an innocent human life has infinite value, then destroying that life ought to warrant an extremely harsh punishment. As David French writes, “[t]here are times when it is the only punishment that truly fits the crime.”  Though others might argue that life imprisonment is a harsher punishment, they may be underestimating the great human psychological capability to adjust to life-long circumstances while overestimating the severity of prison-life in developed countries (where many inmates may be given televisions, conjugal visits, gyms, etc.) Also, retrospectively, the death penalty would have prevented the crimes committed later by Ogura.

There are, indeed, counterexamples that ought to be considered. George Will from the National Review points to the case of Vernon Madison. In 1985, officer Julius Schutle came to the residence of Vernon Madison in response to a domestic disturbance call. As Schutle arrived at the scene, Madison shot and killed him. In his third trial (as the first two were deemed unconstitutional), Madison was sentenced to death. Madison has been on death row for over 30 years and has developed vascular dementia. He can hardly give an account of the meal he was given 5 minutes prior, much less the crime he had committed 30 years prior.

It is important to note, however, that Madison’s prolonged imprisonment was the result of legal activism by death penalty opponents. Along with greatly increasing the number of legal protocols, the ACLU has risen the costs of administrating the death penalty to exceed the costs of life imprisonment. Death penalty opponents can then make the argument that the death penalty is more expensive than life imprisonment, which is a problem they themselves created.

But let us assume that there was no legal meddling involved and that Madison still developed his acute mental illness. Executing Madison would be, at best, morally problematic and, at worst, an affront to human dignity. Some conservatives might argue that the death penalty would still work towards a greater good as a deterrent for future horrendous crimes. Unfortunately, there is little to no evidence that the death penalty deters future criminals. The issue lies in the fact that the death penalty is applied too inconsistently and too infrequently to properly steer away would-be wrong doers.

I find that the strongest conservative defense of the death penalty can be found in the late Antonin Scalia’s distinction between individual and gubernatorial justice. Democracies have a tendency to place government at the same level as individuals, but civilized societies bestow many great powers to the state that cannot belong to the individual. Elected officials are sworn to serve, protect, and administer justice. They are given the responsibility to arrest, try, and punish criminals. Individual citizens cannot perform these tasks because they lack the requisite power and there is too much room for error. Without a social contract that grants power of the sword to a governing body, your neighbor could very easily become your accuser, judge, and executioner. At the same time, you would struggle to defend yourself against the band of thieves breaking down your door. In the words of Thomas Hobbes, life would be poor, brutish, and short.

Though individuals have the power to alter the laws to reflect the society’s ethics, it would seem short-sighted to pass an outright prohibition for a morally ambiguous issue. Advocates of the death penalty will freely admit that there are morally questionably cases like Madison’s, but there are also cases like Furuta’s where the death penalty may be the only just option.

In short, many conservatives assert that the punishment ought to fit the crime, and to preserve the immense value of an innocent life in accordance to natural law, sometimes that punishment ought to be death. Thanks to our democratic system, we can correct the errors of government by holding our elected officials accountable for the misadministration of this great power bestowed on them. As citizens, we ourselves are given the great responsibility to alter the law to account for the specific instances that lead to injustice while still preserving the original intention of the law. We should not shirk from this responsibility by opting for broad legislation for the sake of convenience.

The Case Against the Death Penalty


Audrey Fahlberg, University of Virginia

One wrongful conviction is one too many. Since 1973, over 160  people have been exonerated from death row in the United States due to evidence of innocence. These overturned convictions reveal the indisputable reality that the death penalty in its current form is unjust. Many people argue that with the perfection of DNA testing, wrongful convictions will no longer occur. This argument is categorically flawed. Primarily, it must be recognized that DNA testing cannot be used in most death penalty cases. The destruction of evidence, inadequate evidence collection or preservation, or simply the nature of the crime often negate the possibility for DNA evidence to determine guilt. Due to the lack of admissible DNA evidence in most criminal cases, most trial procedures depend on eyewitness testimony to incriminate a defendant.

Eyewitness testimony, however, is far from foolproof. According to studies carried out by the Innocence Project, eyewitness misidentification has played a role in 70% of wrongful convictions that have been overturned by DNA testing. Countless factors contribute to eyewitness misidentification. For example, officers administering suspect lineups often provide suggestive statements, unconscious gestures or vocal cues that may influence the witness. The use of a disguise by the perpetrator, a racial disparity between the witness and the suspect, a lack of distinctive characteristics of the suspect, and coerced testimonies also often lead to eyewitness misidentification. Consider Joseph Amrine who, in 1986, was convicted on the basis of three eyewitness testimonies. He was released in 2003 after all of these eyewitnesses, who were fellow inmates of Amrine, later recanted their jailhouse snitch testimonies, claiming that they were bribed into falsifying testimonies in exchange for protection or a reduction of their sentence. Until human judgment is infallible, the death penalty will be unjust.

Even in the case where DNA or scientific evidence overrides a court’s reliance on eyewitness testimony to convict a defendant, however, the suppression, falsification, or misinterpretation of evidence still often result in wrongful convictions. Take for example Cameron Todd Willingham, who was executed in 2004 for the alleged murder of his three daughters. It was later uncovered that “faulty science” mislabeled the fire as arson when the fire was later discovered to have occurred by accident. Or, consider the 2012 murder of Raveesh Kumra. Lukis Anderson was convicted of his murder because his DNA was found on the body of the victim, even though it was later discovered that the paramedics who responded to the

distress call after Kumra’s death had treated Anderson earlier that night and had transferred his DNA evidence onto the murder victim’s body via an oxygen monitoring device. Such cases prove that even scientific and DNA evidence are fallible.

In Furman v. Georgia (1972), the Supreme Court instituted a moratorium on capital punishment because of its arbitrariness in application, ruling that the death penalty in its current practice “[constituted] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” The death penalty was reinstated just four years later in Gregg v. Georgia (1976), which instituted a bifurcated trial system, requiring separate trials for the determination of guilt and subsequent sentencing. Even after the implementation of this bifurcated trial procedure, however, there continues to exist an indisputable correlation between race and death penalty sentencing.

The death penalty is one of the most blatantly sexist and racist punishments in the history of the United States. Since 1976, a staggering 288 executions have resulted from a black defendant killing a white victim, whereas only 20 executions have resulted from cases involving a white defendant and a black victim. ” In 2014, a study conducted by the University of Washington concluded that Jurors in Washington state are “three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case.”

Gender bias also dramatically affects death penalty sentencing. As of April 2018, “there were 55 women on death row,” a figure that constitutes just “2.01% of the total death row population of 2,743 persons.” Such grossly disproportionate death penalty sentencing has created a penal system that statistically values some lives more than others. Although defendants of the death penalty may claim that racial and gender discrimination pervade every level of the criminal justice system, this standard should not be applied to the death penalty because capital punishment is an issue of life and death. It is irreversible.

Many supporters of the death penalty proclaim deterrence in its defense. In 2014, the FBI Uniform Crime Report concluded that “the South accounts for over 80% of executions. The Northeast, which has less than 1% of all executions, had [the] lowest murder rate.” Murder rates have been consistently higher on average in states with the death penalty than those without, and the gap has grown bigger over the years. There is absolutely no correlation between the death penalty and deterrence, to make such a claim would be factually incorrect.

There are countless other flaws with capital punishment in its current form. The death penalty legitimizes the inhumane use of unregulated and untested lethal drugs on human beings, often causing inmates to convulse, scream in pain, and gasp for air for hours at a time before fatally succumbing to botched lethal injections. The death penalty categorically targets economically disadvantaged individuals who cannot afford capable defense attorneys. The death penalty is strikingly more expensive than life imprisonment. The death penalty negates the possibility for moral rehabilitation. The death penalty allows attorneys to pose questions to jurors and disqualify those who oppose capital punishment, prejudicially increasing the likelihood for a death penalty prone jury. The death penalty legitimizes the murder of innocent individuals to assuage community pressure to quickly solve a case. Though I wish I could expound on the countless other inhumane aspects of capital punishment, there is, unfortunately, a word limit to this article.

Under no circumstances should a state disregard the execution of innocent individuals in an effort to pursue justice. There is nothing more morally reprehensible than wrongfully stripping an individual of the most precious thing on earth: life itself. Any government that is willing to play the role of God and sacrifice even one innocent life for the sake of justice, is in fact unjust.

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