Right: Reno, Nevada Rabbi Benjamin Zober has said that the religious scripture forbidding of murder, (Thou shalt do no murder) applies to society as a whole, not just to individuals. Zober wrote, "When we, under the supposed color of law, deliberate, decide, and plan the purposeful extinguishing of human life, we commit murder. The death penalty is murder."
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Arguments against abolishing the death penalty
1. The death penalty is the most appropriate response for certain heinous crimes.
Defenders of the death penalty argue that it is only applied to the most grievous of crimes, crimes which of their very nature represent a complete disregard for the rule of law and the value of human life.
Writing in July 2019, Graeme Wood, a staff writer for The Atlantic, stated, 'There are crimes that deserve death... Certain crimes are so depraved that merely to witness or read about them is to feel traumatized and victimized, secondhand.'
According to this line of argument, such crimes forfeit the perpetrator's right to have his or her life respected. Certain actions, it is argued, place a person outside the normal social contract of mutual obligation which operates in most societies. It is argued that as a principle of justice, the perpetrators of such crimes must be punished by forfeiting their lives.
Judges sometimes state this consideration when passing sentence on offenders. In 2002, Orange County Chief Circuit Judge Belvin Perry stated in passing sentence on a man convicted of kidnap and murder, 'You have not only forfeited your right to live among us as a free man, but...you have forfeited your right to live at all."
Responding to the convicted man's plea that he would attempt to make amends by living a reformed life in prison, Judge Perry referred to the nature of his crime which the jurors had found to be 'especially heinous, atrocious [and] cruel'. Commenting on the kidnapped murder victim, the Judge noted, 'The horror, the agony, the emotional strain and fear she must have felt knowing of her impending death is beyond comprehension.'
The work of numerous philosophers has been used to support this view regarding certain crimes justifying the death penalty. Eighteenth century English philosopher, John Locke, supported capital punishment under these circumstances, stating, 'a criminal who, having renounced reason...has, by the unjust violence and slaughter he has committed...declared war against all mankind... may be destroyed...'
Defenders of the death penalty note that the United States only applies it to the most serious crimes. The United States federal government lists 41 capital offenses that are punishable by death.
Under current Supreme Court precedent, only homicidal crimes may be punishable by death. What is more, many states require prosecutors to prove that at least one aggravating factor occurred at the time of the killing. An aggravating factor could include any of the following:
Torture, extreme depravity, or an extremely heinous and atrocious killing
Killing that occurred during the commission of a first-degree felony, including robbery, kidnapping or rape
The murder was committed for pecuniary gain (i.e., by a "hit man")
The victim was a police officer, government official, informant, or witness
The victim was particularly vulnerable, such as a child or an elderly, pregnant or disabled person
The murder was a hate crime committed because of the victim's race, gender, nationality, ancestry, or religion
Although United States state and federal statutes contain various capital crimes other than those involving the death of the victim, the United States Supreme Court addressed this issue in 2008 and ruled that in practice the death penalty should be applied only where a life had been taken. Former United States Supreme Court Justice Anthony Kennedy, writing for the majority in Kennedy v. Louisiana (2008) stated, 'As it relates to crimes against individuals...the death penalty should not be expanded to instances where the victim's life was not taken.'
2. Capital punishment gives a sense of closure to the families and friends of murder victims
Those who support capital punishment often argue that ending the life of the perpetrator gives redress to the family and friends of the murder victim and allows them to move on with their lives with some feeling of closure.
This is the view that has been adopted by President Trump and his administration. Attorney General William Barr has stated, 'We owe it to the victims and their families to carry forward the sentence imposed by our justice system.'
The importance of the effect of the crime of murder on those who have been left behind has become increasingly recognised in the United States. Victim impact statements are now routinely included in sentencing hearings so that juries can be aware of the effect of the crime on the friends and family of the deceased.
United States Chief Justice William Rehnquist has defended the importance on these impact statements in helping to determine the punishment given the convicted murderer. Rehnquist has stated, 'Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question. ...It ensures that the victim is not a faceless stranger, and redresses the unfairness of criminal sentencing, which focuses solely on the life and circumstances of the offender.'
Currently ten death row prisoners have been executed at the direction of the Trump administration with three more scheduled before Trump's presidency ends on January 20, 2021. Two of those already executed are Christopher Vialva (executed on September 24) and Brandon Bernard (executed on December 10) for the 1999 murders of youth ministers Todd and Stacie Bagley in Texas.
The families of Todd and Stacie Bagley have expressed gratitude to President Trump, Attorney General William Barr, and other officials. Speaking for herself and her husband, Mrs Bagley issued a statement after Christopher Vialva's execution in which she stated, 'We have had to wait for 21 years for justice and closure...I want to make sure to thank everyone that participated in seeing that Todd and Stacie received justice for this horrific crime... We appreciate that President Trump felt compassion to the victims and the families to reinstate the Death Penalty and allow us some closure and to give Todd and Stacie justice.'
The Bagley family also issued a statement following the second execution. They again stated it had been 'very difficult' to wait 21 years for the sentence imposed 'on those who cruelly participated in the destruction of our children, to be finally completed...The lives of family and friends were shattered, and we all have grieved for 21 years waiting for justice to finally be served...Thank you to all who were involved in this process of getting justice for Todd and Stacie.'
Similar sentiments were also expressed following the execution of Lezmond Charles Mitchell, who was put to death for the 2001 murders of Alyce Slim, a 63-year-old Navajo woman, and her 9-year-old granddaughter Tiffany Lee.
Tiffany Lee's father stated, 'I have waited 19 years to get justice for my daughter, Tiffany. I will never get Tiffany back, but I hope that this will bring some closure...
Had it not been for the Trump administration, I do not think I would have ever received justice or a sense of finality.'
3. Capital punishment is the only permanent protection from the worst offenders
Defenders of capital punishment argue that it permanently removes from society those who are regarded as posing a dire, on-going threat.
One of the dangers posed by prisoners who are not executed is that they will break out of jail. Those sentenced to life imprisonment are seen as an ongoing escape risk. On March 30, 2001, The National Review published a comment by Deroy Murdock in which he stated, 'Life sentences too often are mere challenges for prisoners to escape, from which they aspire to terrify law-abiding citizens and sometimes kill again.' In the article, Murdock described the escapes of some fifteen prisoners serving life sentences over a period of ten years. Most of these escapes had occurred over the previous twelve months.
Murdock supplied detailed accounts of some of these escapes. All involved further crimes and risk to members of the community. He described how, 'After escaping a Florida prison in 1991, John Fred Woolard shot and killed a park ranger. Last May 28, [2001] Woolard escaped again, this time from a Mississippi prison, accompanied by armed robber Roy Randall Harper. The two convicts allegedly fired at a sheriff's deputy who stopped them for speeding, then embarked on a high-speed chase in a stolen van last June 14. Woolard surrendered three days later, after a final getaway bid in yet another carjacked van.' .
Woolard's escapes resulted in one death, the unlawful discharge of a firearm, the theft of two motor vehicles and a high-speed chase to avoid recapture. Supporters of the death penalty note that the risks to the community from such escapes are obvious
Captain Dave Arnold, personnel director at the Virginia Peninsula Regional Jail in Williamsburg has explained that there are many sentenced to life in prison whose primary focus becomes to escape. Arnold stated, 'There are always people who rebel against being contained. There are those who will take that to heart and make it their mission to get out. These guys can look for all kinds of flaws [in the prison system]. It's their job to poke holes in the system.'
Those who favour the death penalty also argue that life in prison represents a threat to prison guards and other prisoners. An opinion piece written by Michael Dalton and published in the Utah-based Deseret News argues 'Life in prison...is not really a viable solution, since many murders are committed in prison. Fellow inmates and guards alike have been killed by imprisoned murderers, and it is not fair for non-violent criminals to be imprisoned with convicted murderers.'
On March 24, 2019, The Houston Chronicle published an article outlining the disadvantages of working as a correctional officer. The report noted,' Prison guards have the second highest mortality rates of any profession; extreme stress, substance abuse, depression, workplace injuries and suicidal thoughts, are just a few of their daily struggles... It's not uncommon for jail guards to see inmates killing each other, engaging in large-scale fights or setting their cells on fire. Some prisoners will harm themselves or commit suicide. Hepatitis, AIDS and other infectious disease are common in a prison environment - and you'll be exposed to these risks on a daily basis'.
The psychological dangers faced by prison guards are particularly high. 'As a result of extreme stress, depression and PTSD, jail guards are more likely to commit suicide. Some sources say that suicide rates among prison employees are 39 percent higher than those of the average person. Approximately 10 percent of corrections officers and 14 percent of retired guards have attempted suicide or thought about killing themselves.'
Defenders of the death penalty note that guards are put at very high risk when having to deal with prisoners serving life sentences.
4. The state supplies those accused of capital crimes with protections against a miscarriage of justice
Defenders of the death penalty argue that those accused of capital crimes are supplied with many legal protections to ensure that no innocent person is convicted and then executed for a crime he or she did not commit.
Before a defendant faces federal prosecution for a serious criminal charge, a grand jury must have determined that there is enough evidence against them to justify their being brought before a court. The grand jury sits in secret. It is made up of between six and 23 citizens and has investigative powers. This protection against unjust prosecution was put in place by the Fifth Amendment to the United States Constitution (1791).
While all states have provisions to allow for grand juries, only around half use them, with other states preferring to rely on a preliminary hearing to determine whether to indict a defendant on non-federal charges.
The Fifth Amendment also protects citizens against being compelled to give evidence against themselves and against being tried twice for the same criminal offence. These protections are intended to safeguard the defendant from malicious prosecution which involves the unjust or unsupported prosecution of a defendant.
The Sixth Amendment to the United States Constitution (1791) gives all those facing a criminal charge in a federal court the right to a lawyer to assist in their defence. Where they are unable to afford to pay for an attorney one will be supplied. The same right to counsel for those facing a felony charge before a state court has been in place since 1963.
The Sixth Amendment and in the Constitution all those facing felony charges have the right to trial by jury.
In the 1968 ruling in Duncan v. Louisiana, it was determined 'Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. . . '
The central role of a jury in protecting the rights of the defendant is particularly important when the defendant has been found guilty of a crime for which he or she might be sentenced to death. In most instances, the decision as to whether the death penalty should be applied is taken by a jury.
In 2007 the Marquette Law Review published an overview of the protections offered to those accused of capital crimes. It noted, 'Defendants must have a dual trial, the first one to establish guilt or innocence.
If found guilty, a second trial is held to determine whether they get the death penalty or a lesser sentence. For example, in Texas, consideration of the death penalty during the punishment phase of the capital murder trial is based on whether the defendant is a continuing threat to society and whether mitigating evidence related to the person's character, background, and moral culpability warrants a sentence of life imprisonment.
A death sentence results in a mandatory automatic appeal to a higher court. The average length of time from sentence to execution is over twelve years because of the extensive appellate [appeal] process.'
5. The death penalty reflects the 'standards of decency' of American society
The death penalty is sometimes justified because has popular support among Americans.
Popular attitudes to the death penalty are extremely important in determining the legitimacy of the punishment. Challenges mounted in the Supreme Court to capital punishment have often centred on whether it should be judged 'cruel and unusual punishment'. 'Cruel and unusual punishment' is prohibited under the Eighth Amendment to the United States Constitution. Such punishments include torture, deliberately degrading punishment, or punishment that is too severe for the crime committed.
Since the 1950s, the Supreme Court has not made an independent judgement on whether capital punishment is too severe for the crimes that currently attract it. The Supreme Court, in attempting to determine whether a punishment is 'cruel and unusual', asks whether the punishment coincides with society's 'evolving standards of decency.'
This concept was first articulated by Chief Justice Earl Warren in 1958, in Trop v. Dulles, when he wrote that the Eighth Amendment is not static but 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' This effectively means that if the American populace supports the death penalty for particular sorts of crime then that is allowable under the United States Constitution, as the practice is in line with community standards. For the Supreme Court to abolish the death penalty, justices would need to be convinced that the 'standards of decency' of United States society had evolved to the point that capital punishment for adults was considered 'cruel and unusual' punishment. Supporters of the death penalty argue that this point has not currently been reached.Majority support among Americans for the death penalty for persons convicted of murder has been the norm since Gallop started polling in 1937. On only four occasions since have fewer than 50 percent of respondents supported capital punishment - 1957, 1965, 1966 and 1971. The highest level of support was 80 percent in 1994. For each year since 2017 support has ranged between 55 and 56 percent.
Most religious Americans support the death penalty for serious crimes. Mormons (75 percent), Protestants (74 percent), Roman Catholics (71 percent), and Eastern or Greek Orthodox Americans (64 percent) all express support for capital punishment. Most Atheists oppose (58 percent) the death penalty as a punishment for the most serious crimes.
Public opinion polls have not been judged as sufficient to demonstrate to the justices of the Supreme Court that the death penalty should no longer be judged constitutional. Other possible markers of a loss of popular support would be more states striking down their death penalty laws; fewer prosecutors seeking the death penalty and fewer juries and judges sentencing people to death.
Currently, 30 American states, the federal government and the United States military authorize the death penalty, while 20 states and the District of Columbia do not. Although executions are in decline across almost all states, the federal governments authorization of capital punishment has been at an historic high toward the end of Trump's presidency.