Is the Use of the Death Penalty Justice and Is It Fair?

It is fair to say that capital punishment is under attack, particularly in the South where it is most commonly practiced. Not only have serious criticisms been raised by scholars in criminal justice, criminology and related disciplines, but newspapers have published scathing news reports suggesting that innocent people have been sentenced to death and even executed, and alleging racial discrimination in capital punishment practice.

According to Robinson (2011), four basic facts establish the realities of American capital punishment. The first is that capital punishment is practiced in most but not all United States jurisdictions. Specifically, there are 34 states with the death penalty, and 16 without. The federal government also maintains capital punishment, as does the military, but the District of Columbia does not carry out executions. However, of these death penalty jurisdictions, only nine regularly carry out an execution, meaning they have averaged at least one execution a year since 1976 when capital punishment was reinstated; thus only about one-quarter (26%) of death penalty states (nine of 34) and 18% of all states in the country (nine of 50) average one or more executions per year. Further, only one state has carried out at least ten executions per year since 1976, Texas. In fact, only about 10% of counties with the death penalty imposed a death sentence between the years 2004 and 2009.

Justice is typically defined as administering and maintaining what is just or right. Robinson (2011) says that there are three broad issues discussed and debated by scholars of justice theory: freedom, welfare, and virtue. Some justice theorists argue that what matters most for deciding what is right or just is freedom; whether individual rights are respected and protected. Another school of thought is the egalitarian libertarians. These scholars suggest that what matters most for justice is equality of opportunity in society and taking care of the least advantaged citizens. Other justice theorists focus on welfare, or general well-being and happiness of people in society. They argue that what matters most for justice is the welfare of society, or its overall happiness. Finally, other justice theorists argue that what matters most for justice is virtue, or moral goodness and righteousness.

The purpose of the death penalty is incapacitation, deterrence, and retribution. Incapacitation is understood as removing the ability of offenders to commit future crimes. Incarceration is the typical form whereas execution is the ultimate form. Deterrence refers to creating fear in would be offenders through punishment to prevent future crimes. Capital punishment can only be aimed at preventing crime by would-be murderers, general deterrence, since it cannot create fear in murderers who have already been executed, specific deterrence. Retribution refers to righting or rebalancing the scales of justice through punishment in order to achieve justice for crime victims. Executions are often depicted as retribution for the crime of murder, as well as a source of closure for murder victims' families.

Robinson (2011) claims that criminologists and capital punishment scholars overwhelmingly indicate that the death penalty fails to achieve these goals, mostly because of the rarity of death sentences and executions. Logically, if death sentences and executions were more common, capital punishment would be more likely to achieve these goals. Yet we also know that the more frequently the death penalty is used, the greater the costs associated with the policy, including not only additional financial costs but also a greater risk of convicting, sentencing to death, and executing the innocent. This ultimately has great significance for the "justice" of capital punishment.

Van Den Haag (1986) says that the death penalty is an effective form of deterrence because it is feared more than life imprisonment. Many of the convicts under death sentence appeal their sentence and try to get it reduced to life imprisonment. Van Den Haag argues that even though there is no factual evidence that the death penalty deters would be criminals more than life imprisonment, the fact that more people fear the death penalty makes it a better deterrent.

Reiman (1985) agrees with Robinson's view that the use of the death penalty is not successful as a deterrent. He gives four main reasons that refute Van Den Haag's argument. His first reason is that although people fear the death penalty more than life in prison, nobody wants to spend life in prison either. People do not have the mentality that they can commit a crime because they will "only" get sentenced to life in prison. Although the person will be alive, they will have all freedom taken from them, which after awhile, can be seen just as horrible, if not worse, than death. Reiman's second point is that if a person is contemplating committing a crime, they are already facing an enormous risk of being killed in the process. Roughly 500 to 700 suspected felons are killed by police in the line of duty every year and many Americans own their own guns. When taking that into account, it does not seem very likely that the would be criminal will be able to commit the crime without at least being injured by the police or the would be victim. His third reason against Van Den Haag's view is that using the death penalty is hypocritical. The law states that a person cannot take the life of another, but when they do, their punishment could be death. It is not possible to say murder is illegal and then have it as a possible punishment. He argues that not having the death penalty better exemplifies that idea that murder is wrong. His last point is that it is illogical to practice the death penalty simply because it is feared