Commentary on capital punishment


Now there are a lot of arguments and misconceptions against capital punishment. I’ve heard quite a few – in fact I’m quite well-read on the subject. The only part of capital punishment on which I choose to not be well read are the various tactics in which it is carried out. The method, to me, is independent of the concept.

I could write article after article, blog post after blog post about why various methods should not be employed, and many probably have. I’m not here to argue the method, though, only the concept of capital punishment. And there are a lot of arguments to choose from, such as this one:

"The Eighth Amendment’s protection against cruel and unusual punishment means that the death penalty is unconstitutional."

If you believe this, then you need to re-read the Fourteenth Amendment, more specifically the Due Process Clause:


The Due Process Clause states simply that the government may not, without first going through the necessary legal processes, seize your property, incarcerate you or strip you of your rights ("deprive you of…liberty"), or put you to death ("deprive you of life").

The mention of life separate from liberty and property means that the Constitution is implicitly declaring the death penalty as constitutionally exempt from the Eighth Amendment. Where an Amendment and the body of the Constitution conflict, the Amendment controls, and where two Amendments conflict, the newer Amendment controls.

"So what about those who’ve been released from death row, having had their convictions thrown out on new evidence?"

Any person who uses that as an argument needs to rethink their logic. You might as well say that those who’ve been released from prison, as contrasted from death row, due to new evidence surfacing means that the entire penal system should be abolished.

The fact that the prisoner was on death row is irrelevant to the argument. They were incarcerated by the State following a conviction by a jury of their peers in a Court of law, meaning the jury weighed the evidence presented to them and returned a verdict of Guilty.

Evidence later surfacing that provides the reasonable doubt necessary for a conviction to be set aside isn’t a problem with capital punishment, but with the criminal investigation. The only thing that capital punishment brings to that party is an implied time limit. I say "implied time limit" because there is not any limit on when a person can have their conviction overturned or vacated to the best of my knowledge. The only difference is whether the person will be alive when that happens.

And that applies equally to individuals not sentenced to death, as the person incarcerated could die unexpectedly in jail, whether on death row or not, or might expire during a life sentence before new evidence surfaces that allows the conviction to be vacated.

And yes, there have been cases where a person’s conviction has been posthumously vacated where the person in question died in prison. In 2000 convictions for murder against four members of the Patriarca crime family were overturned. The conviction was secured in 1968, and by the time the conviction was overturned, two of the men had expired in prison.

Miscarriages of justice are unfortunate, but abolishing the death penalty will not eliminate them, and there is nothing to suggest that the occurrence will be reduced.

"But capital punishment has no deterrent effect."

I agree. But let me raise your claim with this argument: the entirety of the corrections and criminal justice system has no deterrent effect on murder either. So what’s the point in arguing that there’s no deterrent effect when the threat of just going to prison for the rest of your life doesn’t deter either?

And I would not consider it unreasonable to expand the argument to say that the criminal justice system doesn’t deter any crime.

"If that’s the case, then why do so many try to cover up the murders they’ve committed?"

That is a psychological question that I don’t have the answer to, and I’m not going to speculate. But I’m sure if you read around there’ve been articles and books published on it.

But with regard to the murder itself, once someone forms the intent to kill a person, there is likely nothing to deter the person from actually going forward with the crime, other than a kink in their plan, assuming there is a plan. And the same could apply to virtually any other crime.

I mean think about it, is a person who has already decided they will kill someone suddenly going to back down upon realizing that they will go to jail? I highly doubt it.

"It costs more to keep a person on death row than it does to incarcerate them for life."

It also costs more to incarcerate a person for life than it does to parole them after 20 years, depending on the prisoner. Should we abolish mandatory life sentences without the possibility of parole?

If we start successfully arguing that certain punishments should not be allowed because of cost, eventually it’ll become that no punishment should be allowed because of cost. Instead of incarceration, perhaps just fine people for their crimes since that actually provides a positive revenue stream to jurisdictions instead of paying out to support prisoners while they are in jail.

If you find that statement irrational, then it is equally irrational to argue about the cost of keeping a person on death row.

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Thank you to Glenn Beck and his book Arguing with Idiots: How to Stop Small Minds and Big Government for the inspiration for this format. If you haven’t read this book, I highly recommend it. Now before you think I’m a Kool-Aid drinking conservative nut who will readily say "Yes, Glenn, I believe you" to anything he says, not the case. There are actually points of view on which I disagree with him, believe it or not.