The death penalty figures to become a prominent issue in US national politics in the months to come, thanks to two events: the very probably wrongful execution of Troy Davis in Georgia (US), despite heaps of evidence that tarnishes the reliability of his conviction, and the boistrously positive (and highly publicized) reaction of a conservative audience to Texas Governor and leading Republican presidential candidate Rick Perry's boasting, during a debate, that his Texas under his governorship executed 234 people. Though some people will tell you that the death penalty has a deterrent effect on murder rates, and others will tell you it actually increases murder rates, there is a strong case to be made that these data are, in either direction, reliant upon too many assumptions to be conclusive. It makes sense, therefore, to consider other, more powerful reasons beyond the utilitarian reductionism of deterrence measurments. Below are a few arguments against the death penality, which is one of the most repulsive abominations of the modern world, and should be ended immediately, unequivocally, and without remorse.
1) Constitutional. Shortsighted people, including many judges, will often argue that there is not enough precedent available for us to understand the death penalty as a Federal issue. They argue instead that it's the right of states to decide whether to have the death penalty or not (hence, some do and some do not). Of course there is constitutional-law merit to this argument; but it's not the most valid argument, even along constitutional lines. For one, before any challenge to the constitutionality of a Federal law banning the death penality throughout the US, it's of course well within the constitutional remit of Congress to legislate such a law (which means constitutionality is already a weak excuse for Federal government inaction on this issue).
But beyond this, the Eighth Amendment to the Constitution does explicitly prohibit 'cruel and unusual punishment' (and the Supreme Court has subsequently ruled that this also applies to the states). The phrase 'cruel and unusual punishment, taken from the English Bill of Rights of 1689, has traditionally referred to brutal executions like disembowelment or boiling to death, for example. Today, we assume that execution by electric chair and lethal injection are neither cruel nor unusual. By medeival standards, that's a fair assumption. By contemporary standards, we have already begun to phase out the electric chair because of its brutality. Beyond this, however, lies the very legitimate question of whether 'cruel and unusual' ought only to apply to matters of physical or sensory pain. Is it not both cruel and unusual to systematically execute a human being, even (and perhaps especially) by subjecting them to the ultimate authority of the state, strapping them down to a bed, and pronouncing that they, in such a position, will be executed? Peter Moskos, a professor at the John Jay College of Criminal Justice, has recently caused a stir by proffering the notion that, given the choice, one would be more likely to accept five lashes with a cane (a la Singapore) than to endure five years in prison. A fundamental aspect of this logic is that the most painful punishment is not necessarily the most cruel. Applied crossways to the logic that underpins our understanding of 'cruel and unusual' as a matter of physical pain, it would be hard for a reasonable person to deny two things: one, the cruelest punishment is death (hence, 'upon pain of death'); two, though a caning or a beating cause more physical pain, theoretically, than a lethal injection, the horrific nature of systematic execution--the pain of death--has as much to do with the fact of execution itself as the means by which the execution is carried out. If boiling to death is cruel and unusual because of the physical pain and duress it causes, it is also cruel and unusual because of the finality of that pain, as well as the anticipation that one's last living moments will be spent suffering. Simply because the physical pain is reduced in more 'humane' means of execution, should we then disregard the cruelty of the very act of putting to death?
2) Limitations on the powers of the state. By assuming that the state has the sovereignty to execute one of its citizens, we put more faith in the state and its competence than perhaps we'd like to believe. Conservatives frequently support the death penalty from 'tough on crime,' religious, or retributive justice standpoints; but how do conservatives square placing the ultimate authority--the authority to execute--in the hands of the state while denying that the state should have much authority otherwise? What does it mean to suggest that the state has the right to kill citizens, but not provide them with a health insurance option; to execute, but not to levy taxes on carbon emissions; to carry out 'final justice,' but not to regulate the corporate consumption of natural resources? If there's one power with which we ought not to entrust the government, it's the systematic execution of its citizens. Once execution happens, there is of course no turning back. And there are plenty of instances in which the government gets it wrong.
3) The function of the law. Some believe that the function of the law is to punish people. Others believe it is to carry out revenge or provide retribution (these first two beliefs often go hand in hand). Still others believe that the law can provide parameters for the rehabilitation of criminals. All of these positions are seriously flawed, and lead to significant problems in the criminal justice system. For one, the medieval-religious notion of punitive or retributive justice lends us to make emotional and irrational decisions about crime.
In the case of the death penalty, such views feed bloodlust and an archaic 'eye for an eye' mentality. We condemn these kinds of measures when they take place abroad, in countries we presume to be inferior and barbaric: how can death by stoning persist in Iran or Saudi Arabia, canings in Singapore, or torture in China? Yet, when we apprehend crime (especially violent crime) on our own soil, we direct our attention not to the suffering of the victims of crimes and their families, but to the desire that the criminal suffer as payback (instead of five lashes, five years of sanctioned beatings and rape in US prisons...but 'they deserve it,' we say). The same mentality drives the notion, commonly held by USonians, that if you take a life, you deserve to have your own life taken from you (or you 'forfeit your right to live')--an eye for an eye. This is sometimes self-righteous religiosity (Biblical or Sharia approaches to criminal justice), but it's also religious self-righteousness--the believe that we can and should be arbiters of justice.
The fact is, we are not arbiters of justice, but generally well meaning people who want to keep those who harm others off the streets and out of the way of those who abide by the law and play fair. When you strip away our emotional responses to crime, what's left is the general sentiment that we just don't want anyone to hurt us, steal from us, kill us, etc. We therefore create a justice system not to deliver final justice or judgment, nor to take retribution into the hands of the state on behalf of the wronged, but to keep one another safe by separating those who do criminal harm from those who do not. Taken this way, the death penalty, and all the costs it entails to make sure it's done with adequate due process (even though this is often not even enough to assure accuracy and rightful convictions), is not worth the cost of locking criminals up, making them work in the process to earn their keep until they've demonstrated an ability to rejoin broader society without criminally harming others.
The reasons for abolishing the death penalty are sensible and manifold, but they are not easy to digest when we take emotional and archaic approaches to criminal justice. We ought to be beyond such solutions as state-sponsored execution; and until we are, we fall well short of the degree of civilization whose lack we decry in our foreign enemies, and whose benefits we tout for ourselves as a supposed global exemplar.
