Death Penalty Term Paper

Pages: 11 (3141 words)  ·  Bibliography Sources: ≈ 6  ·  File: .docx  ·  Level: College Senior  ·  Topic: Criminal Justice


Their task certainly is not to interpret popular feeling or perception. They do not take polls and are not meant to respond to popular feelings. They are meant to interpret the law independently. Nor are the judges meant to enact their own moral theories into law. It is not the task of the Supreme Court to discover or to reveal new moral standards. Their task is to interpret the laws, including the Constitution. If the voters want to accept new moral standards, if, for instance, they now consider the death penalty wrong, they can vote accordingly to elect representatives who will repeal it. Courts are not meant to be legislatures. Our Constitution distinguishes the making (or repealing) of laws, through the political process, from the interpretation of laws through the judicial process. The judges are supposed to interpret laws. Legislators are to make them.

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To be sure, sometimes an interpretation is hard to distinguish from a new law, but at other times that distinction is easy. In the case of the death penalty it certainly is. Neither a consensus (which is absent anyway) nor a moral discovery by judges can be a ground for judicial repeal of the death penalty, which the Constitution says plainly can be imposed, provided there is due process. Wherefore the court has concentrated on the dueness of the legal process. Repeal requires the enactment of laws through the political process. Those who insist on judicial repeal ask the Supreme Court to do the work of legislators, and to assume their function. The very fact that opponents of the death penalty wish to use the judicial rather than the political process for repeal suggests that they know quite well that they do not have popular backing.


TOPIC: Term Paper on Death Penalty One Is Most Assignment

Perhaps the most straightforward argument for the death penalty is that it saves innocent lives by preventing convicted murderers from killing again. What if death penalty has been abolished? A look at these numbers helps us understand the risk here. Out of 52,000 state prison inmates in 1984 serving prison time on murder charges, around 810 were convicted felons who had once before been convicted of murder and together they had killed 821 persons after those convictions. (U.S. Department of Justice, 1999). Executing each of these inmates after the first murder conviction would have saved the lives of more than 800 persons.

Abolitionists respond to this argument by observing that only a fraction of murderers receive the death penalty. Professor Bedau, for instance, argues that "the only way to [completely] prevent such recidivism would be execute every murderer, a policy that is politically unavailable and morally indefensible" (Bedau, & Radelet, 1987). This response is unsatisfying. It is no indictment of death penalty procedures to learn that they do not single-mindedly pursue the goal of incapacitating murderers. Instead, the American death penalty responds to a variety of concerns, including not only incapacitation but also the possibility of rehabilitation and mercy. No other criminal justice sanction makes the prevention of recidivism its exclusive goal. Society sends most criminals to prison for a term of years, rather than for life, reserving the life sentence for the worst of the worst. Yet no one would argue that recidivism is somehow inappropriately pursued with life imprisonment merely because such sentences are reserved for the circumstances where, in light of all relevant factors, they are most appropriate.


The death penalty's incapacitative benefits come from preventing the individual murderers who are apprehended and executed from killing again. This effect is what criminologists refer to as specific deterrence. More significant benefits come from the death penalty's restraining effect on the much larger pool of persons who are potential murderers, what criminologists refer to as general deterrence. Evidence for capital punishment's general deterrent effect comes from three sources: logic, firsthand reports, and social science research.

Logical Support for Deterrence

Logic backs the conclusion that death penalty is an effective deterring force for different kinds of serious crimes including murders. Such an assumption is uncontroversial in other contexts. As Professor James Q. Wilson has explained: "People are governed in their daily lives by rewards and penalties of every sort. We shop for bargain prices, praise our children for good behavior and scold them for bad, expect lower interest rates to stimulate home building and fear that higher ones will depress it, and conduct ourselves in public in ways that lead our friends and neighbors to form good opinions of us. To assert that 'deterrence doesn't work' is tantamount to either denying the plainest facts of everyday life or claiming that would-be criminals are utterly different from the rest of us." (Wilson, 1983).

Whenever society faces a problem with a burgeoning number of crimes, be it kidnappings in the 1930s, aircraft hijackings in the 1970s, domestic violence in the 1980s, or political terrorism in the 2000s, the public response is almost invariably to increase the criminal penalties associated with those crimes. We take it as uncontroversial that these increased penalties will deter at least some prospective criminals, which makes the increased penalty worthwhile. Our entire criminal justice system is premised on the belief that increasing penalties increases deterrence.

The logic of deterrence applies to aggravated homicides no less than to other crimes. As the Supreme Court observed in Gregg v. Georgia, "There are carefully contemplated murders, such as the murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act." (Gregg v. Georgia, 1976). Of course, as the Supreme Court suggests, the death penalty applies only to "carefully contemplated" first-degree murders, that is, murders committed with premeditation and malice. It is no answer to the deterrence argument to say that the death penalty cannot prevent a killing during a fight in a barroom brawl. Such heat of passion offenses are typically punished as second-degree murders and are not eligible for capital punishment. The ultimate penalty is reserved for first-degree murders and, indeed, for a subset of first-degree murders that are especially aggravated. Nor is it an answer to say that murders continue to be committed in this country in the face of the death penalty. The salient issue is not whether the death penalty deters every murder, only whether it deters some murders. Logic suggests that at least some potential murderers will be deterred.


Abolitionists like Stephen Nathanson argue that because the statistical evidence in favor of the deterrent effect of capital punishment is indecisive, we have no basis for concluding that it is a better deterrent than long prison sentences (Nathanson, 2001). If I understand these opponents, their argument presents us with an exclusive disjunct: Either we must have conclusive statistical evidence (i.e., a proof) for the deterrent effect of the death penalty, or we have no grounds for supposing that the death penalty deters. Many people accept this argument. There is a middle position that holds that while we cannot prove conclusively that the death penalty deters, the weight of evidence supports its deterrence. Furthermore, I think there are too many variables to hold constant for us to prove via statistics the deterrence hypothesis, and even if the requisite statistics were available, we could question whether they were cases of mere correlation vs. causation. On the other hand, commonsense or anecdotal evidence may provide insight into the psychology of human motivation, providing evidence that fear of the death penalty deters some types of would-be criminals from committing murder.


In contrast to the general declines in the leading death penalty states, the largest abolitionist states have seen rising homicide rates. Among non- death penalty states, nine are large enough to have two congressmen and have no wild swings in murder rates from year to year. These states are Wisconsin, Minnesota, Massachusetts, Iowa, Michigan, West Virginia, Rhode Island, and Hawaii. Of these, six have seen their murder rates go up since 1966 (Wisconsin, Minnesota, Michigan, West Virginia, Rhode Island, and Hawaii), one has stayed the same (Maine), and two have seen slight reductions (Massachusetts by 0.4 of a percentage point and Iowa by 0. (U.S. Department of Justice, Bureau of Justice Statistics, 1999).

These state-by-state comparisons are bolstered by more sophisticated and recent econometric analysis that controls for the variety of demographic, economic, and other variables that differ among the states. The best of these studies suggest that the death penalty has an incremental deterrent effect over imprisonment; in plainer terms that the death penalty saves innocent lives.


It is interesting nonetheless to ask: Do we today consider the death penalty cruel? Research has shown that the majority of Americans do not. According to polls, something like 70% are in favor of the death penalty (U.S. Department of Justice, Bureau of Justice Statistics, 1999).

When the Supreme Court objected to some aspects of state laws imposing capital punishment, more than two-thirds of all the states reenacted them so as… [END OF PREVIEW] . . . READ MORE

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How to Cite "Death Penalty" Term Paper in a Bibliography:

APA Style

Death Penalty.  (2005, October 28).  Retrieved December 1, 2021, from

MLA Format

"Death Penalty."  28 October 2005.  Web.  1 December 2021. <>.

Chicago Style

"Death Penalty."  October 28, 2005.  Accessed December 1, 2021.