how to start off an essay about capital punishment

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Capital Punishment Essay for Students in English: 250 and 350 Words Samples

• Updated on  
• Mar 12, 2024

Capital Punishment Essay: Capital punishment refers to sentencing a criminal with the death penalty after due process of law. This form of punishment can be traced back to the ancient Greek of the 7th century BC, which operated under the ‘Laws of Draco’. In addition to the Greeks, Romans also sanctioned citizens to the death penalty for murder, rape, arson, and treason. 

Likewise, present-day India awards the death penalty for heinous crimes against mankind such as murder, criminal conspiracy, dacoity with murder, encouraging mutiny, and waging war against the central government. However, as we have evolved as humans, courts resort to this extreme form of punishment in rarest of the rare cases. 

Also Read: Essay on Human Rights: Samples in 500 and 1500

Capital Punishment Essay in 250 Words

Capital punishment or the death penalty is the state-sanctioned execution of a person as punishment for a crime. It is usually the most severe punishment a judicial system can impose on offenders. It is usually reserved for the most serious crimes like rape and murder. 

Since time immemorial, mankind has opted for different methods of capital punishment. From hanging, beheading, and firing squads to burning, stoning, and poisoning humans have used every possible way to execute offenders. Methods can vary but all these have one thing in common i.e. inhumanity.  

Capital punishment, in all its forms, is considered barbaric. It is seen as cruel, savage, and a form of revenge, reminiscent of a bygone era where understanding and respect for human life were absent. Some argue that these methods even involve physical torture.

While some believe the death penalty deters crime, studies have shown no significant correlation between its use and a decrease in violent crimes. In simpler terms, the threat of execution does not necessarily prevent people from committing serious offences. Therefore, it becomes crucial to consider whether capital punishment truly serves any purpose in our modern world. 

Owing to the controversial characteristics of this punishment option, the ‘Abolition of the Death Penalty’ has become one of the most prominent discussions in the United Nations. Besides, Human Rights activists and organisations also raise their voices against capital punishment. With all the ongoing debate, there is optimism that this inhuman practice might be done away with in the future. 

Also Read: World Day for International Justice

Essay on Capital Punishment in 350 Words

Capital punishment or the death penalty has been a topic of contention in India. While the Supreme Court of India has reserved the death penalty for the rarest of rare cases, the penal process evokes a debate for and against this form of punishment. 

One of the primary arguments in favour of capital punishment is deterrence i.e. fear of severe forms of the death penalty will reduce crimes. Supporters of this penal process are of the view that the threat of capital punishment prevents a potential offender from committing heinous crimes like murder, rape, war against the government, and abetment to mutiny. Also, they propound that the assertion of severe punishments upholds the safety and security of people as the state has the responsibility to maintain social order and safeguard its people. 

However, people against capital punishment argue that the death penalty is inept in rehabilitating prisoners, which is the basic aim of any legal penal option. They also propose that punishment by execution does not deter people from committing crimes as individualist punishment overlooks broader social failures. Also, execution by barbaric measures shifts the responsibility of the state and peer groups from addressing the root causes of crime to individual punishment. 

Another reason for concern regarding capital punishment is the risk of executing innocent individuals due to flaws in the justice system. The possibility of wrongful convictions highlights the serious consequences of irreparable harm of taking a person’s life. This irreversible consequence outlines the significance of strict legal procedures and safety measures to prevent miscarriage of justice. 

Thus, the debate over capital punishment in India is a complex one, encompassing moral, legal, and societal considerations. While proponents argue for its necessity in ensuring justice and deterring crime, opponents raise valid concerns regarding its effectiveness, morality, and potential for miscarriages of justice. As the legal landscape continues to evolve, it is essential to critically examine these arguments and consider the broader implications of capital punishment on society and the individuals it affects.

It is time to #StopExecutions and #AbolishTheDeathPenalty – Join us now at https://t.co/LeukqEMJWA @RepEspaillat @EspaillatNY #LisaMontgomery #CoreyJohnson #DustinHiggs pic.twitter.com/wzTuklnrRx — Death Penalty Action (@DeathPenaltyAct) January 12, 2021

Ans: Yes. The legal system in India can grant capital punishment in case of murder, criminal conspiracy, abetment to mutiny, dacoity with murder, and waging war against the Union Government.

Ans: Start the essay on capital punishment by defining this penal process. Thereafter, cite arguments in favour and against the death penalty. Also, you can mention how the government and society benefit and lose through this ultimate yet barbaric form of justice.

Ans: Capital punishment refers to sentencing a criminal with the death penalty after due process of law. 

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Ankita Singh

Ankita is a history enthusiast with a few years of experience in academic writing. Her love for literature and history helps her curate engaging and informative content for education blog. When not writing, she finds peace in analysing historical and political anectodes.

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Capital Punishment Essay for Students and Children

500+ words essay on capital punishment.

Every one of us is familiar with the term punishment. But Capital Punishment is something very few people understand. Capital punishment is a legal death penalty ordered by the court against the violation of criminal laws. In addition, the method of punishment varies from country to country. Where some countries hung the culprits until death and some shoot or give them a lethal injection.

Types of Capital Punishments

In this topic, we are going to discuss the various methods of punishment that are used in different countries. But, before that let’s talk about the capital punishments that people used in the past. Earlier, the capital punishments are more like torture rather than a death penalty. They used to strain and punish the body of the culprit to the extreme that he/she dies because of the pain and fear of torture.

Besides, modern methods are quicker and less painful than traditional methods.

• Electrocution – In this method, the criminal is tied to a chair and a high voltage current that can kill a man easily is passed through the body. In addition, it causes organ failure (especially heart).
• Tranquilization – This method gives the person a slow but painless death as the toxin injections are injected into his body that takes up to several hours for the criminal to die.
• Beheading – Generally, the Arab and Gulf countries use this method. Where they decide the death sentence by the crime of the person. Furthermore, in this method, they simply cut the person’s head apart from the body.
• Stoning – In this the criminal is beaten till death. Also, it is the most painful method of execution.
• Shooting – The criminal is either shoot in the head or in his/her chest in this method.
• Hanging – This method simply involves the hanging of culprit till death.

Get the huge list of more than 500 Essay Topics and Ideas

Advantages and Disadvantages of Capital Punishments

Although many people think that it’s a violation of human rights and the Human Rights Commission strongly opposes capital punishment still many countries continue this practice.

The advantages of capital punishment are that they give people an idea of what the law is capable of doing and the criminal can never escape from the punishment no matter who he/she is.

In addition, anyone who is thinking about committing a crime will think twice before committing a crime. Furthermore, a criminal that is in prison for his crime cannot harm anyone of the outside world.

The disadvantages are that we do not give the person a second chance to change. Besides, many times the real criminal escape the trial and the innocent soul of the prosecution claimed to guilty by false claims. Also, many punishments are painful and make a mess of the body of the criminal.

To conclude, we can say that capital punishment is the harsh reality of our world. Also, on one hand, it decreases the crime rate and on the other violates many human rights.

Besides, all these types of punishment are not justifiable and the court and administrative bodies should try to find an alternative for it.

FAQs about Capital Punishment

Q.1 What is the difference between the death penalty and capital punishment?

A.1 For many people the term death penalty and capital punishment is the same thing but there is a minute difference between them. The implementation of the death penalty is not death but capital punishment itself means execution.

Q.2 Does capital punishment decrease the rate of crime?

A.2 There is no solid proof related to this but scientists think that reduces the chances of major crimes to a certain level.

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Capital Punishment and the Death Penalty Essay

Criminal law and procedure, historical development of criminal law, difference between legal and social parameters in criminal law, elements of a crime.

In most nations, there are two or three sorts of courts that have authority over criminal cases. A single expert judge typically handles petty offenses, but two or more lay justices in England may sit in a Magistrates’ Court. In many nations, more severe cases are heard by panels of two or more judges (Lee, 2022). Such panels are frequently made up of attorneys and lay magistrates, as in Germany, where two laypeople sit alongside one to three jurists. The French cour d’assises comprises three professional judges and nine lay assessors who hear severe criminal cases. Such mixed courts of professionals and ordinary residents convene and make decisions by majority voting, with lawyers and laypeople having one vote.

The United States Constitution permits every defendant in a non-petty matter the right to be prosecuted before a jury; the defendant may forgo this privilege and have the decision decided by a professional court judge. To guarantee the court’s fairness, the defense and prosecution can dismiss or challenge members whom they prove to be prejudiced (Lee, 2022). Furthermore, the defense and, in the United States, the prosecution has the right of vexatious challenge, which allows it to confront several participants without providing a reason.

One of the most primitive texts illustrating European illegitimate law appeared after 1066, when William the Conqueror, Duke of Normandy, conquered England. By the eighteenth century, European law addressed criminal behavior specifically, and the idea of trying lawbreakers in a courtroom context began to transpire (Zalewski, 2019). The English administration recognized a scheme referred to as common law, which is the method through which regulations that regulate a group of people are established and updated. Corporate law relates to public and illegal cases and is grounded on the establishment, adjustment, and expansion of laws by adjudicators as they make permissible judgments. These decisions become standards, prompting the consequences of impending cases.

Misdemeanors, offences, and sedition are the three types of unlawful offenses presented before the courts. Misdemeanors are petty infringements decided by penalties or confiscation of property; some are penalized by less than a year in prison. Offences are meaningfully more heinous felonies with heavier consequences, such as incarceration in a federal or state prison for a year or more. Treason is characterized as anything that breaches the country’s allegiance. Felonious law changes and is often susceptible to modification based on the ethics and standards of the period.

Parameters are values with changing attributes, principles, or dimensions that may be defined and monitored. A parameter is usually picked from a data set because it is critical to understanding the situation. A parameter aids in comprehending a situation, whereas a parameter defines the situation’s bounds (Doorn et al., 2018). The critical concept of the Legal parameter is that behaviors are restricted by unspoken criteria of deviance that are agreeable to both the controlled and those that govern them. Impartiality, fairness, and morality are all ideals conveyed by social justice, and they all have their origins in the overarching concept of law (Doorn et al., 2018). From a social standpoint, it involves various topics such as abortion, cremation, bio-genetics, human decency, racial justice, worker’s rights, economic freedom, and environmental concerns.

All crimes in the United States may be subdivided into distinct aspects under criminal law. These components of an offense must then be established beyond possible suspicion in a court of law to convict the offender (Ormerod & Laird, 2021). Many delinquencies need the manifestation of three crucial rudiments: a criminal act, criminal intent, and the concurrence of the initial two. Depending on the offense, a fourth factor called causality may be present.

First is the criminal act (Actus Reus): actus reus, which translates as “guilty act,” refers to any criminal act of an act that occurs. To be considered an unlawful act, an act must be intentional and controlled by the defendant (Ormerod & Laird, 2021). If an accused act on nature, they may not be held responsible for their conduct. Words can be deemed illegal activities and result in accusations such as perjury, verbal harassment, conspiracy, or incitement. On the contrary, concepts are not considered illegal acts but might add to the second component: intent.

Second is crime intent (Mens Rea): for a felonious offense to be categorized as a misconduct, the culprit’s mental circumstance must be reflected. According to the code of mens rea, a suspect can only be considered remorseful if there is felonious intent (Ormerod & Laird, 2021). Third is concurrence, which refers to the coexistence of intent to commit a crime and illicit behavior. If there is proof that the mens rea preceded or happened simultaneously with the actus reus, the burden of proving it is met. Fourth is causation: this fourth ingredient of an offense is present in most criminal cases, but not all. The link concerning the defendant’s act and the final consequence is called causation. The trial must establish outside a possible suspicion that the perpetrator’s acts triggered the resultant criminality, which is usually detriment or damage.

The risk of executing an innocent man cannot be entirely removed despite precautions and protection to prevent capital punishment. If the death penalty was replaced with a statement of life imprisonment, the money saved as a result of abolishing capital punishment may be spent in community development programs. The harshness of the penalty is not as efficient as the guarantee that the penalty will be given in discouraging crime. In other terms, if the penalty dissuades crime, there is no incentive to prefer the stiffer sentence.

Doorn, N., Gardoni, P., & Murphy, C. (2018). A multidisciplinary definition and evaluation of resilience: The role of social justice in defining resilience . Sustainable and Resilient Infrastructure , 4 (3), pp. 112–123. Web.

Lee, S.-O. (2022). Analysis of the major criminal procedure cases in 2021 . The Korean Association of Criminal Procedure Law , 14 (1), pp. 139–198. Web.

Ormerod, D., & Laird, K. (2021). 2. The elements of a crime: Actus reus . Smith, Hogan, and Ormerod’s Criminal Law , pp 26–87. Web.

Rancourt, M. A., Ouellet, C., & Dufresne, Y. (2020). Is the death penalty debate really dead? contrasting capital punishment support in Canada and the United States . Analyses of Social Issues and Public Policy , 20 (1), 536–562. Web.

Stetler, R. (2020). The history of mitigation in death penalty cases . Social Work, Criminal Justice, and the Death Penalty , pp. 34–45. Web.

Wheeler, C. H. (2018). Rights in conflict: The clash between abolishing the death penalty and delivering justice to the victims . International Criminal Law Review , 18 (2), 354–375. Web.

Zalewski, W. (2019). Double-track system in Polish criminal law. Political and criminal assumptions, history, contemporary references . Acta Poloniae Historica , 118 , pp 39. Web.

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IvyPanda. (2023, December 17). Capital Punishment and the Death Penalty. https://ivypanda.com/essays/capital-punishment-and-the-death-penalty/

"Capital Punishment and the Death Penalty." IvyPanda , 17 Dec. 2023, ivypanda.com/essays/capital-punishment-and-the-death-penalty/.

IvyPanda . (2023) 'Capital Punishment and the Death Penalty'. 17 December.

IvyPanda . 2023. "Capital Punishment and the Death Penalty." December 17, 2023. https://ivypanda.com/essays/capital-punishment-and-the-death-penalty/.

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IvyPanda . "Capital Punishment and the Death Penalty." December 17, 2023. https://ivypanda.com/essays/capital-punishment-and-the-death-penalty/.

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5 Death Penalty Essays Everyone Should Know

Capital punishment is an ancient practice. It’s one that human rights defenders strongly oppose and consider as inhumane and cruel. In 2019, Amnesty International reported the lowest number of executions in about a decade. Most executions occurred in China, Iran, Saudi Arabia, Iraq, and Egypt . The United States is the only developed western country still using capital punishment. What does this say about the US? Here are five essays about the death penalty everyone should read:

“When We Kill”

By: Nicholas Kristof | From: The New York Times 2019

In this excellent essay, Pulitizer-winner Nicholas Kristof explains how he first became interested in the death penalty. He failed to write about a man on death row in Texas. The man, Cameron Todd Willingham, was executed in 2004. Later evidence showed that the crime he supposedly committed – lighting his house on fire and killing his three kids – was more likely an accident. In “When We Kill,” Kristof puts preconceived notions about the death penalty under the microscope. These include opinions such as only guilty people are executed, that those guilty people “deserve” to die, and the death penalty deters crime and saves money. Based on his investigations, Kristof concludes that they are all wrong.

Nicholas Kristof has been a Times columnist since 2001. He’s the winner of two Pulitizer Prices for his coverage of China and the Darfur genocide.

“An Inhumane Way of Death”

By: Willie Jasper Darden, Jr.

Willie Jasper Darden, Jr. was on death row for 14 years. In his essay, he opens with the line, “Ironically, there is probably more hope on death row than would be found in most other places.” He states that everyone is capable of murder, questioning if people who support capital punishment are just as guilty as the people they execute. Darden goes on to say that if every murderer was executed, there would be 20,000 killed per day. Instead, a person is put on death row for something like flawed wording in an appeal. Darden feels like he was picked at random, like someone who gets a terminal illness. This essay is important to read as it gives readers a deeper, more personal insight into death row.

Willie Jasper Darden, Jr. was sentenced to death in 1974 for murder. During his time on death row, he advocated for his innocence and pointed out problems with his trial, such as the jury pool that excluded black people. Despite worldwide support for Darden from public figures like the Pope, Darden was executed in 1988.

“We Need To Talk About An Injustice”

By: Bryan Stevenson | From: TED 2012

This piece is a transcript of Bryan Stevenson’s 2012 TED talk, but we feel it’s important to include because of Stevenson’s contributions to criminal justice. In the talk, Stevenson discusses the death penalty at several points. He points out that for years, we’ve been taught to ask the question, “Do people deserve to die for their crimes?” Stevenson brings up another question we should ask: “Do we deserve to kill?” He also describes the American death penalty system as defined by “error.” Somehow, society has been able to disconnect itself from this problem even as minorities are disproportionately executed in a country with a history of slavery.

Bryan Stevenson is a lawyer, founder of the Equal Justice Initiative, and author. He’s argued in courts, including the Supreme Court, on behalf of the poor, minorities, and children. A film based on his book Just Mercy was released in 2019 starring Michael B. Jordan and Jamie Foxx.

“I Know What It’s Like To Carry Out Executions”

By: S. Frank Thompson | From: The Atlantic 2019

In the death penalty debate, we often hear from the family of the victims and sometimes from those on death row. What about those responsible for facilitating an execution? In this opinion piece, a former superintendent from the Oregon State Penitentiary outlines his background. He carried out the only two executions in Oregon in the past 55 years, describing it as having a “profound and traumatic effect” on him. In his decades working as a correctional officer, he concluded that the death penalty is not working . The United States should not enact federal capital punishment.

Frank Thompson served as the superintendent of OSP from 1994-1998. Before that, he served in the military and law enforcement. When he first started at OSP, he supported the death penalty. He changed his mind when he observed the protocols firsthand and then had to conduct an execution.

“There Is No Such Thing As Closure on Death Row”

By: Paul Brown | From: The Marshall Project 2019

This essay is from Paul Brown, a death row inmate in Raleigh, North Carolina. He recalls the moment of his sentencing in a cold courtroom in August. The prosecutor used the term “closure” when justifying a death sentence. Who is this closure for? Brown theorizes that the prosecutors are getting closure as they end another case, but even then, the cases are just a way to further their careers. Is it for victims’ families? Brown is doubtful, as the death sentence is pursued even when the families don’t support it. There is no closure for Brown or his family as they wait for his execution. Vivid and deeply-personal, this essay is a must-read for anyone who wonders what it’s like inside the mind of a death row inmate.

Paul Brown has been on death row since 2000 for a double murder. He is a contributing writer to Prison Writers and shares essays on topics such as his childhood, his life as a prisoner, and more.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

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• Capital Punishment Essay

Essay on Capital Punishment

Capital Punishment is the execution of a person given by the state as a means of Justice for a crime that he has committed. It is a legal course of action taken by the state whereby a person is put to death as a punishment for a crime. There are various methods of capital punishment in order to execute a criminal such as lethal injection, hanging, electrocution, gas chamber, etc. Based on moral and humanitarian grounds, capital punishment is subjected to many controversies not only at the national level but also at the global platform. One must understand the death sentence by itself.

Many records of various civilizations and primal tribal methods denote that the death penalty was a part of their justice system. The system of the prison was evolved to keep people in confinement for some time who have done wrong in their life and was harmful to society. The idea behind keeping the criminal in the prison was to give them a chance to change and reform themselves. The idea works well with people who have done minor offences like theft, robbery, etc. A complication arises when grievous offences like brutal and inhumane acts of rape, murder, mass killing, etc. are involved. So, the contentious part is the grimness of the crime, which is the deciding reason for execution. 

During the 20th century period, millions of people died in the wars between the nations or states. In this violent period, military organizations practised capital punishment as a way of maintaining discipline. The death penalty was employed for crimes in many religious beliefs and historically was practised widely with the support of religious hierarchies. Today, there is no religious faith attached to the morality of capital punishment. It has been left to the discretion of the judiciary system to award the punishment in special circumstances. 

Most people feel that punishment for crimes like murders, rapes, and mass killings should not be death but some reformative or preventive sentence. The death penalty cannot reform a criminal, since once dead he cannot be reformed. Some people hold the view that no one has the right to take away anyone’s life for any reason. One should not take the role of God in taking away anybody’s life. At the same time, a criminal has no right to take away anyone’s life for any reason at all. If a person could go to an extent of taking someone’s life, he too has no right to live in a civilized society. Both the arguments can be cited to support viewpoints that are poles apart. 

Mankind has coined a large number of methods of capital punishment:

hanging by the rope until a person breathes his last.

death by electric current.

the murderer faces a firing squad.

the offender is beheaded and executed.

the culprit is poisoned.

the offender is stoned to death.

he is burnt alive at the stake.

the criminal is made to drown.

the criminal is thrown before hungry beasts of prey.

death through crucifixion.

Guillotine.

the offender is thrown into a poisonous gas chamber.

Methods can be different but all of these methods have one thing common and that is capital punishment is barbaric in all forms. It is savage and vindictive. It is a relic of an uncivilized era. Many people say that the methods by which executions are carried out involve physical torture. Contrary to the popular belief that the death penalty deters all future crimes, various surveys have shown that the threat of the death penalty does not in any way reduce the occurrence of violent crimes. 

Capital Punishment in India

Capital punishment in India does not come with a single stoke. The practice of Capital punishment is not very common in India. In our country, the Court of Session awards a death sentence according to the gravity of the offence, and this verdict requires confirmation by the High Court. Then an appeal can be made to the Supreme Court of India. In some cases, an appeal to the Supreme Court lies as a matter of right, where the High Court has reversed the verdict of the Sessions Court either into acquittal or punishment or has enhanced the sentence to capital punishment. 

Lastly, if needed an appeal can be made to the president of India and the governors of states for mercy. The President is solely guided by the notes in the files by the Home Minister or the Secretariat. He is bound to pen down the reasons for mercy. It is exercised very judiciously. 

Contemplating over capital punishment has been ramping on for a countless number of years. It is true that the death sentence is not the solution to the increase in crimes but at the same time, capital punishment inflicts physiological fear in the minds of people. In many countries, the use of this punishment has helped to deter crimes and change the minds of future criminals against committing heinous crimes. Capital punishment should be given in the rare of the rarest cases after proper investigation of the criminal’s offence. 

FAQs on Capital Punishment Essay

Q1. What Do You Understand By Capital Punishment?

Ans. Capital Punishment is the execution of a person given by the state as a means of Justice for a crime that he has committed. It is a legal course of action taken by the state whereby a person is put to death as a punishment for a crime. There are quite a few methods of capital punishment to execute a criminal such as lethal injection, hanging, electrocution, gas chamber, etc.

Q2. Why Do Some People Argue Against Capital Punishment?

Ans. Some people argue against capital punishment because they hold the view that no one other than God has the right to take anyone’s life. They argue that criminals should get a chance to change or reform themselves into good and responsible human beings. If they are executed, then they cannot be reformed.

Q3. What are Some Methods that Mankind has Coined for Capital Punishment?

Ans. Mankind has coined various methods of capital punishment:

the criminal is burnt alive at the stake.

the offender is thrown before hungry beasts of prey.

Q4. Does Capital Punishment Deter the Rate of Crimes?

Ans. There is no solid evidence to the theory of capital punishment that it reduces the crime rate but yes it does instil psychological fear in the minds of future criminals against committing heinous crimes.

Death Penalty - Essay Samples And Topic Ideas For Free

The death penalty, also known as capital punishment, remains a contentious issue in many societies. Essays on this topic could explore the moral, legal, and social arguments surrounding the practice, including discussions on retribution, deterrence, and justice. They might delve into historical trends in the application of the death penalty, the potential for judicial error, and the disparities in its application across different demographic groups. Discussions might also explore the psychological impact on inmates, the families involved, and the society at large. They could also analyze the global trends toward abolition or retention of the death penalty and the factors influencing these trends. A substantial compilation of free essay instances related to Death Penalty you can find at Papersowl. You can use our samples for inspiration to write your own essay, research paper, or just to explore a new topic for yourself.

Death Penalty and Justice

By now, many of us are familiar with the statement, "an eye for an eye," which came from the bible, so it should be followed as holy writ. Then there was Gandhi, who inspired thousands and said, "an eye for an eye will leave us all blind." This begs the question, which option do we pick to be a good moral agent, in the terms of justice that is. Some states in America practice the death penalty, where some states […]

The Controversy of Death Penalty

The death penalty is a very controversial topic in many states. Although the idea of the death penalty does sound terrifying, would you really want a murderer to be given food and shelter for free? Would you want a murderer to get out of jail and still end up killing another innocent person? Imagine if that murder gets out of jail and kills someone in your family; Wouldn’t you want that murderer to be killed as well? Murderers can kill […]

Stephen Nathanson’s “An Eye for an Eye”

According to Stephen Nathanson's "An Eye for an Eye?", he believes that capital punishment should be immediately abolished and that the principle of punishment, "lex talionis" which correlates to the classic saying "an eye for an eye" is not a valid reason for issuing the death penalty in any country, thus, abolishment of Capital Punishment should follow. Throughout the excerpt from his book, Nathanson argues against this principle believing that one, it forces us to "commit highly immoral actions”raping a […]

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Does the Death Penalty Effectively Deter Crime?

The death penalty in America has been effective since 1608. Throughout the years following the first execution, criminal behaviors have begun to deteriorate. Capital punishment was first formed to deter crime and treason. As a result, it increased the rate of crime, according to researchers. Punishing criminals by death does not effectively deter crime because criminals are not concerned with consequences, apprehension, and judges are not willing to pay the expenses. During the stage of mens rea, thoughts of committing […]

The Death Penalty: Right or Wrong?

The death penalty has been a controversial topic throughout the years and now more than ever, as we argue; Right or Wrong? Moral or Immoral? Constitutional or Unconstitutional? The death penalty also known as capital punishment is a legal process where the state justice sentences an individual to be executed as punishment for a crime committed. The death penalty sentence strongly depends on the severity of the crime, in the US there are 41 crimes that can lead to being […]

About Carlton Franklin

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How To Write an Essay About Death Penalty

Understanding the topic.

When writing an essay about the death penalty, the first step is to understand the depth and complexities of the topic. The death penalty, also known as capital punishment, is a legal process where a person is put to death by the state as a punishment for a crime. This topic is highly controversial and evokes strong emotions on both sides of the debate. It's crucial to approach this subject with sensitivity and a balanced perspective, acknowledging the moral, legal, and ethical considerations involved. Research is key in this initial phase, as it's important to gather facts, statistics, and viewpoints from various sources to have a well-rounded understanding of the topic. This foundation will set the tone for your essay, guiding your argument and supporting your thesis.

Structuring the Argument

The next step is structuring your argument. In an essay about the death penalty, it's vital to present a clear thesis statement that outlines your stance on the issue. Are you for or against it? What are the reasons behind your position? The body of your essay should then systematically support your thesis through well-structured arguments. Each paragraph should focus on a specific aspect of the death penalty, such as its ethical implications, its effectiveness as a deterrent to crime, or the risk of wrongful convictions. Ensure that each point is backed up by evidence and examples, and remember to address counterarguments. This not only shows that you have considered multiple viewpoints but also strengthens your position by demonstrating why these opposing arguments may be less valid.

Exploring Ethical and Moral Dimensions

An essential aspect of writing an essay on the death penalty is exploring its ethical and moral dimensions. This involves delving into philosophical debates about the value of human life, justice, and retribution. It's important to discuss the moral justifications that are often used to defend the death penalty, such as the idea of 'an eye for an eye,' and to critically evaluate these arguments. Equally important is exploring the ethical arguments against the death penalty, including the potential for innocent people to be executed and the question of whether the state should have the power to take a life. This section of the essay should challenge readers to think deeply about their values and the principles of a just society.

Concluding Thoughts

In conclusion, revisit your thesis and summarize the key points made in your essay. This is your final opportunity to reinforce your argument and leave a lasting impression on your readers. Discuss the broader implications of the death penalty in society and consider potential future developments in this area. You might also want to offer recommendations or pose questions that encourage further reflection on the topic. Remember, a strong conclusion doesn't just restate what has been said; it provides closure and offers new insights, prompting readers to continue thinking about the subject long after they have finished reading your essay.

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Home — Essay Samples — Philosophy — Ethical Dilemma — The Morality of Capital Punishment: Is It Ethical

The Morality of Capital Punishment: is It Ethical

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Published: Sep 12, 2023

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Arbitrary application of the death penalty, risk of executing innocent individuals, failure as a deterrent to crime, the ethical alternative: life imprisonment.

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Article Contents

Imperatives, acknowledgements.

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A Factful Perspective on Capital Punishment

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David T Johnson, A Factful Perspective on Capital Punishment, Journal of Human Rights Practice , Volume 11, Issue 2, July 2019, Pages 334–345, https://doi.org/10.1093/jhuman/huz018

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Substantial progress has been made towards worldwide abolition of capital punishment, and there are good reasons to believe that more progress is possible. Since 2000, the pace of abolition has slowed, but by several measures the number of executions in the world has continued to decline. Several causes help explain the decline, including political leadership from the front and an increased tendency to regard capital punishment as a human rights issue rather than as a matter of domestic criminal justice policy. There are significant obstacles in the movement to eliminate state killing in the world, but some strategies could contribute to additional decline in the years to come.

People tend to notice the bad more than the good, and this ‘negativity instinct’ is apparent when it comes to capital punishment ( Rosling et al. 2018 : 48). For example, two decades ago, Leon Radzinowicz (1999 : 293), the founder of Cambridge University’s Institute of Criminology, declared that he ‘did not expect any substantial further decrease’ in the use of capital punishment because ‘most of the countries likely to embrace the abolitionist cause’ had already done so. In more recent years, other analysts have claimed that the human rights movement is in crisis, and that ‘nearly every country seems to be backsliding’ ( Moyn 2018 ). If this assessment is accurate, it should be cause for concern for opponents of capital punishment because a heightened regard for human rights is widely regarded as the key cause of abolition since the 1980s ( Hood and Hoyle 2009 ).

To be sure, everything is not fine with respect to capital punishment. Most notably, the pace of abolition has slowed in recent years, and executions have increased in several countries, including Iran and Taiwan (in the 2010s), Pakistan (2014–15), and Japan (2018). But too much negativity will not do. I adopt a factful perspective about the future of capital punishment: I see substantial progress toward worldwide abolition, and this gives me hope that further progress is possible ( Rosling et al. 2018 ).

This article builds on Roger Hood’s seminal study of the movement to abolish capital punishment, which found ‘a remarkable increase in the number of abolitionist countries’ in the 1980s and 1990s ( Hood 2001 : 331). It proceeds in four parts. Section 1 shows that in the two decades or so since 2000 the pace of abolition has slowed but not ceased, and the total number of executions in the world has continued to decline. Section 2 explains how death penalty declines have been achieved in recent years. Section 3 identifies obstacles in the movement toward elimination of state killing in the modern world. And Section 4 suggests some priorities and strategies that could contribute to additional decline in the death penalty in the third decade of the third millennium.

These examples exclude estimates for the People’s Republic of China, which does not disclose reliable death penalty figures, but which probably executes more people each year than the rest of the world combined.

Table 1 displays the number of countries with each of these four death penalty statuses in five years: 1988, 1995, 2000, 2007, and 2017. Overall, the percentage of countries to retain capital punishment has declined by half over that period, from 56 per cent in 1988 to 28 per cent in 2017. But Table 2 shows that the pace of abolition has slowed since the 1990s, when 37 countries abolished. By comparison, only 23 countries abolished in the 2000s, with 11 more countries abolishing in the first eight years of the 2010s. The pace of abolition has declined partly because much of the lowest hanging fruit has already been picked.

Number of abolitionist and retentionist countries, 1988–2017

Note : Figures in parentheses show the percentage of the total number of countries in the world in that year.

Sources : Hood 2001 : 334 (for 1988, 1995, and 2000); Amnesty International annual reports (for 2007 and 2017).

Number of Countries That Abolished the Death Penalty by Decade, 1980s – 2010s

Sources : Death Penalty Information Center; Amnesty International annual reports.

Table 3 uses Hood’s figures for 1980 to 1999 ( Hood 2001 : 335) and figures from Hands Off Cain and Amnesty International to report the estimated number of executions and death sentences worldwide from 1980 to 2017. Because several countries (including China, the world’s leading user of capital punishment) do not disclose reliable death penalty statistics, the figures in Table 3 cannot be considered precise measures of death sentencing and execution trends over time, but the numbers do suggest recent declines. For instance, the average number of death sentences per year in the 2010s (2,220) was less than half the annual average for the 2000s (4,576). Similarly, the average number of executions per year in the 2010s (867) was less than half the annual average for the 2000s (1,762). Moreover, while the average number of countries per year to impose a death sentence remained fairly flat in the four decades covered in Table 3 (58 countries in the 1980s, 68 in the 1990s, 56 in the 2000s, and 58 in the 2010s), the average number of countries per year which carried out an execution declined by about one-third, from averages of 37 countries in the 1980s and 35 countries in the 1990s, to 25 countries in the 2000s and 23 countries in the 2010s. In short, fewer countries are using capital punishment, and fewer people are being condemned to death and executed.

Number of death sentences and executions worldwide, 1980–2017

Notes : (a) The numbers of reported and recorded death sentences and executions are minimum figures, and the true totals are substantially higher. (b) In 2009, Amnesty International stopped publishing estimates of the minimum number of executions per year in China.

Sources : Hood 2001 : 335 (1980–1999); Hands Off Cain (2001); Amnesty International annual reports (2002–2017).

In 2001, Hood (2001 : 336) reported that 26 countries had executed at least 20 persons in the five-year period 1994–1998. Table 4 compares those figures with figures for the same 26 countries in 2013–2017, and it also presents the annual rate of execution per million population for each country (in parentheses). The main pattern is striking decline. In 2009, Amnesty International stopped publishing estimates of the minimum number of executions per year in the People’s Republic of China, so trend evidence from that source is unavailable, but other sources indicate that executions in China have declined dramatically in the past two decades, from 15,000 or more per year in the late 1990s and early 2000s ( Johnson and Zimring 2009 : 237), to approximately 2,400 in 2013 ( Grant 2014 ) and 2,000 or so in 2016. Of the other 25 countries in Hood’s list of heavy users of capital punishment in the 1990s, 11 saw executions disappear (Ukraine, Turkmenistan, Russia, Kazakhstan, Congo, Sierra Leone, Kyrgyzstan, South Korea, Libya, Rwanda, and Zimbabwe), eight had the execution rate decline by half or more (USA, Nigeria, Singapore, Belarus, Taiwan, Yemen, Jordan, Afghanistan), and two experienced more modest declines (Saudi Arabia and Egypt). Altogether, 22 of the 26 heavy users of capital punishment in the latter half of the 1990s have experienced major declines in executions. Of the remaining four countries, one (Japan) saw its execution rate remain stable until executions surged when 13 former members of Aum Shinrikyo were hanged in July 2018 (for murders and terrorist attacks committed in the mid-1990s), while three (Iran, Pakistan, and Viet Nam) experienced sizeable increases in both executions and execution rates.

Executions and execution rates by country, 1994–1998 and 2013–2017

a The figure of 429 executions for Viet Nam is for the three years from August 2013 to July 2016.

Notes: Countries reported to have executed at least 20 persons in 1994–1998, and execution figures for the same countries in 2013–2017 (with annual rates of execution per million population for both periods in parentheses).

As explained in the text, in addition to the 26 countries that appeared in Table 3 of Hood (2001 : 336), India had at least 24 judicial executions in 1994–1998, Indonesia had four, and Iraq had an unknown number. The comparable figures for these countries in 2013–2017 (with the execution rate per million population in parentheses) are India = 2 (0.0003), Indonesia = 23 (0.09), and Iraq = 469 (2.78).

Sources : Hood 2001 : 336 (1994–1998); Amnesty International (2013–2017); the Death Penalty Database of the Cornell Center on the Death Penalty Worldwide (for India, Indonesia, and Iraq); Johnson and Zimring 2009 : 430 (for India 1994–1998).

The execution rate increases in Table 4 are striking but exceptional. In Iran, the fourfold increase in the execution rate gives it the highest per capita execution rate in the world for 2013–2017, with 6.68 executions per million population per year. This is approximately four times higher than the estimated execution rate for China (1.5) in the same period. The increase in Viet Nam is also fourfold, from 0.38 executions per million population per year to 1.5, while the increase in Pakistan is tenfold, from 0.05 to 0.49. Nonetheless, Viet Nam’s substantially increased execution rate in the 2010s would not have ranked it among the top ten executing nations in the 1990s, while Pakistan’s increased rate in the 2010s would not have ranked it among the top 15 nations in the 1990s. Even among the heaviest users of capital punishment, times have changed.

At least two countries that did not appear on Hood’s heavy user list for the 1990s executed more than 20 people in 2013–2017. The most notable newcomer is Iraq, which executed at least 469 persons in this five-year period, with an execution rate of 2.78 per million population per year. And then there is Indonesia. In the five years from 1994 to 1998, this country (with the world’s largest Muslim population) executed a total of four people, while in 2013–2017 the number increased to 23, giving it an execution rate of 0.09 per year per million population—about the same as the (low) execution rates in Japan and Taiwan.

When Iraq and Indonesia are added to the heavy user list for 2013–2017, only five countries out of 28 have execution rates that exceed one execution per year per million population, giving them death penalty systems that can be deemed ‘operational’ in the sense that ‘judicial executions are a recurrent and important part’ of their criminal justice systems ( Johnson and Zimring 2009 : 22). By contrast, in 1994–1998, 14 of these 28 countries had death penalty systems that were ‘operational’.

India is a country with a large population that does not appear on the frequent executing list for either the 1990s or the 2010s. In 2013–2017, this country of 1.3 billion people executed only two people, giving it what is probably the lowest execution rate (0.0003) among the 56 countries that currently retain capital punishment. India has long used judicial execution infrequently, but its police and security forces continue to kill in large numbers. In the 22 years from 1996 through 2017, India’s legal system hanged only four people, giving it an annual rate of execution that is around 1/25,000th the rate of executions in China. But over the same period, India’s police and security forces have killed thousands illegally and extrajudicially, many in ‘encounters’ that officials try to justify with the lie that the bad guy fired first.

Two fundamental forces have been driving the death penalty down in recent decades ( Johnson and Zimring 2009 : 290–304). First, while prosperity is neither a necessary nor a sufficient condition for abolition, economic development does tend to encourage declines in judicial execution and steps toward the cessation of capital punishment. Second, the general political orientation of government often has a strong influence on death penalty policy, at both ends of the execution spectrum. High-execution rate nations tend to be authoritarian, as in China, Viet Nam, North Korea, Singapore, Saudi Arabia, Iran, and Iraq. Conversely, low-execution rate nations tend to be democracies with institutionalized limits on governmental power, as in most of the countries of Europe and in Australia, New Zealand, Canada, South Korea, and India. Of course, these are tendencies, not natural laws. Exceptions exist, including the USA at the high end of the execution spectrum, and Myanmar and Nepal at the low end.

In addition to economic development and democratization, concerns about wrongful convictions and the execution of innocents have made some governments more cautious about capital punishment. In the USA, for example, the discovery of innocence has led to historic shifts in public opinion and to sharp declines in the use of capital punishment by prosecutors and juries across the country ( Baumgartner et al. 2008 ; Garrett 2017 ). In China, too, wrongful convictions and executions help explain both declines in the use of capital punishment and legal reforms of the institution ( He 2016 ).

The question of capital punishment is fundamentally a matter of human rights, not an isolated issue of criminal justice policy.

Death penalty policy should not be governed by national priorities but by adherence to international human rights standards.

Since capital punishment is never justified, a national government may demand that other nations’ governments end executions. ( Zimring 2003 : 27)

As the third premise of this orthodoxy suggests, political pressure has contributed to the decline of capital punishment. This influence has been especially striking in Europe, where abolition of capital punishment is an explicit and absolute condition for becoming a member of the European Union. In other countries, too, from Singapore and South Korea to Rwanda and Sierra Leone, the missionary zeal of European governments committed to abolition has led to the elimination of capital punishment or to major declines in its usage.

Political leadership has also fostered the death penalty’s decline. There are few iron rules of abolition, but one seems to be that when the death penalty is eliminated, it invariably happens despite the fact of majority public support for the institution at the time of abolition. This—‘leadership from the front’—is such a common pattern, and public resistance to abolition is so stubborn, that some analysts believe ‘the straightest road to abolition involves bypassing public opinion entirely’ ( Hammel 2010 : 236). There appear to be at least two political circumstances in which the likelihood of leadership from the front rises and the use of capital punishment falls ( Zimring 2003 : 22): after the collapse of an authoritarian government, when new leaders aim to distance themselves from the repressive practices of the previous regime (as in West Germany, Italy, Portugal, Spain, Romania, Cambodia, and Timor Leste); and after a left-liberal party gains control of government (as in Austria, Great Britain, France, South Korea, and Taiwan).

Although use of the death penalty continues to decline, there are countervailing forces that continue to present obstacles to abolition, as they have for decades. First and foremost, there is an argument about national sovereignty made by many states, that death penalty policy and practice are not human rights issues but rather matters of criminal justice policy that should be decided domestically, according to the values and traditions of each individual country. There is the role of religion—especially Islamic beliefs, where in some countries and cultures it is held that capital punishment must not be opposed because it has been divinely ordained. There are claims that capital punishment deters criminal behaviour and drug trafficking, though there is little evidence to support this view ( National Research Council 2012 ; Muramatsu et al. 2018 ). And there is the continued use of capital punishment in the USA, which helps to legitimate capital punishment in other countries ( Hood 2001 : 339–44).

The death penalty also survives in some places because it performs welcome functions for some interests. For instance, following the Arab Spring movements of 2010–2012, Egypt and other Middle Eastern governments employed capital punishment against many anti-government demonstrators and dissenters. In other retentionist countries, capital punishment has little to do with its instrumental value for government and crime control and much to do with the fact that it is ‘productive, performative, and generative—that it makes things happen—even if much of what happens is in the cultural realm of death penalty discourse rather than the biological realm of life and death’ or the penological realms of retribution and deterrence ( Garland 2010 : 285). For elected officials, the death penalty is a political token to be used in electoral contests. For prosecutors and judges, it is a practical instrument that enables them to harness the rhetorical power of death in the pursuit of professional objectives. For the mass media, it is an arena in which dramas can be narrated about the human condition. And for the onlooking public, it is a vehicle for moral outrage and an opportunity for prurient entertainment.

In addition to these long-standing obstacles to abolition, several other impediments have emerged in recent years. Most notably, as populism spreads ( Luce 2017 ) and democracy declines in many parts of the world ( Levitsky and Ziblatt 2018 ), an ‘anti-human rights agenda’ is forcing human rights proponents to rethink their assumptions and re-evaluate their strategies ( Alston 2017 ). Much of the new populist threat to democracy is linked to post-9/11 concerns about terrorism, which have been exploited to justify trade-offs between democracy and security. Of course, we are not actually living in a new age of terrorism. If anything, we have experienced a decline in terrorism from the decades in which it was less of a big deal in our collective consciousness ( Pinker 2011 : 353). But emotionally and rhetorically, terrorism is very much a big deal in the present moment, and the cockeyed ratio of fear to harm that is fostered by its mediated representations has been used to buttress support for capital punishment in many countries, including the USA (the Oklahoma City bombings in 1995), Japan (the sarin gas attacks of 1994 and 1995), China (in Xinjiang and Tibet), India (the Mumbai attacks of 1993 and 2008 and the 2001 attack on the Parliament in New Delhi), and Iraq (where executions surged after the post-9/11 invasion by the USA, and where most persons executed have been convicted of terrorism). More broadly, the present political resonance of terrorism has resulted in some abolitionist states assisting with the use of capital punishment in retentionist nations ( Malkani 2013 ).

Some analysts believe that the ‘abolition of capital punishment in all countries of the world will ensure that the killing of citizens by the state will no longer have any legitimacy and so even more marginalize and stigmatize extra-judicial executions’ ( Hood and Hoyle 2008 : 6). Others claim that the abolition of capital punishment is ‘one of the great, albeit unfinished, triumphs of the post-Second World War human rights movement’ ( Hodgkinson 2004 : 1). But states kill extrajudicially too, and sometimes the scale so far exceeds the number of judicial executions that death penalty reductions and abolitions seem like small potatoes. The most striking example is occurring under President Rodrigo Duterte in the Philippines: thousands of extrajudicial executions in a country that abolished capital punishment (for the second time!) in 2006.The case of the Philippines illustrates a pattern that has been seen before and will be seen again in polities with weak law, strong executives, and fearful and frustrated citizens ( Johnson and Fernquest 2018 ). State killing often survives and sometimes thrives after capital punishment is abolished (as in Mexico, Brazil, Nepal, and Cambodia, among other countries). And in countries where capital punishment has not been abolished, extrajudicial executions are frequently carried out even after the number of judicial executions has fallen to near zero (as in Bangladesh, India, Indonesia, and Thailand).

Despite these obstacles to abolition, the decline of capital punishment seems likely to continue in the years to come. The trajectory of this institution is shaped by political and cultural processes over which human rights practices have little influence ( Garland 2010 : Chapter 5), but priorities and strategies do matter. In this section I suggest five imperatives for the future.

First, opponents of capital punishment should recognize the limited importance of public opinion and the generally disappointing results of public education campaigns. There is in fact ‘no real evidence of a public relations campaign ever having had a significant, sustained effect on mass public opinion on capital punishment’ ( Hammel 2010 : 39). Such campaigns are not useless ( Singer 2016 ), but when they make a difference they usually do so by influencing the views of elites. To put the point a little differently, cultural change can stimulate death penalty reform, but the cultural shifts that matter most are those that operate ‘on and through state actors’ ( Garland 2010 : 143). This is where abolitionists should focus their efforts at persuasion.

Second, legal challenges to capital punishment should continue, for they have been effective in Africa, the former British colonies of the Caribbean, the USA, and many other countries (see the Death Penalty Project, https://www.deathpenaltyproject.org ). Moreover, legal challenges tend to be most effective when they come not from individual attorneys but from teams of attorneys and their non-attorney allies—social workers, scholars, mitigation investigators, and the like ( Garrett 2017 : Chapters 5–6). The basic strategy of successful teams is to ‘Make the law do what it promises. Make it be perfect’ ( Von Drehle 2006 : 196). One result is the growing recognition that state killing is incompatible with legal values. Another is a shift in focus from what the death penalty does for people to what it does to them. The evidence of the death penalty’s decline summarized in the first section of this article suggests that country after country has realized that retaining capital punishment breeds disrespect for law by exposing many of its shortcomings ( Sarat 2001 ). In some contexts, this recognition is best cultivated not by invoking ‘human rights’ as a ‘rhetorical ornament’ for anti-death penalty claims ( Dudai 2017 : 18), but simply by concentrating on what domestic law promises—and what it fails to deliver.

Third, research has contributed to the decline of capital punishment, both by undermining claims about its purported deterrent effects and by documenting flaws in its administration. In these ways, a growing empirical literature highlights ‘the lack of benefits associated with capital punishment and the burgeoning list of problems with its use’ ( Donohue 2016 : 53). Unfortunately, much of the available research concentrates on capital punishment in one country—the USA—which provides ‘a rather distorted and partial view of the death penalty’ worldwide ( Hood and Hoyle 2015 : 3). Going forward, scholars should explore questions about capital punishment in the many under-researched retentionist nations of Asia and the Middle East, and they should focus their dissemination efforts on the legal teams and governmental elites that have the capacity to challenge and change death penalty policy and practice, as described above in the first and second imperatives.

Fourth, abolition alone is not enough, in two senses. For one, it is not acceptable to replace capital punishment with a sentence of life without parole which is itself a cruel punishment that represents ‘life without hope’ and disrespect for human rights and human dignity ( Hood 2001 : 346). Moreover, when life without parole sentences are established, far more offenders tend to receive them than the number of offenders actually condemned to death. Overall, the advent of life without parole sometimes results in small to modest reductions in execution, but its main effect on the criminal process is ‘penal inflation’ ( Zimring and Johnson 2012 ). For most human rights practitioners, this is hardly a desirable set of outcomes. In addition, abolition is a hollow victory when extrajudicial executions continue or increase afterwards, yet this occurs often. The nexus between judicial and extrajudicial executions is poorly understood and much in need of further study, but the available evidence from countries such as Mexico and the Philippines suggests that ending judicial executions may do little to diminish state killing. In the light of this legal realism, a single-issue stress on abolishing capital punishment because it is inconsistent with human rights might well be considered more spectacle than substance ( Nagaraj 2017 : 23).

Finally, while the present moment is in some ways an ‘extraordinarily dangerous time’ for human rights advocates ( Alston 2017 : 14), there is room for optimism that the death penalty may be nearing the ‘end of its rope’ ( Garrett 2017 ). Overall, a factful consideration of contemporary capital punishment suggests that the situation in the world today is both bad and better ( Rothman 2018 ). A factful perspective on capital punishment also makes it reasonable to be a ‘possibilist’ about the future of this form of state killing ( Rosling et al. 2018 : 69). Substantial progress has been made toward worldwide abolition, and there are good reasons to believe that more progress is possible.

Special thanks to Professor Roger Hood for his foundational studies of the death penalty worldwide.

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Garrett B. L. 2017 . End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice . Cambridge, MA : Harvard University Press .

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Hodgkinson P. 2004 . Capital Punishment: Improve It or Remove It? In Hodgkinson P. , A. Schabas W. (eds), Capital Punishment: Strategies for Abolition , pp. 1 – 35 . New York : Cambridge University Press .

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Hood R. , Hoyle C. . 2015 . The Death Penalty: A Worldwide Perspective (5th ed.). New York : Oxford University Press .

Johnson D. T. , Fernquest J. . 2018 . Governing through Killing: The War on Drugs in the Philippines . Asian Journal of Law & Society 5 ( 2 ): 359 – 90 .

Johnson D. T. , Zimring F. E. . 2009 . The Next Frontier: National Development, Political Change, and the Death Penalty in Asia . New York : Oxford University Press .

Levitsky S. , Ziblatt D. . 2018 . How Democracies Die . New York : Crown .

Luce E. 2017 . The Retreat of Western Liberalism . New York : Atlantic Monthly Press .

Malkani B. 2013 . The Obligation to Refrain from Assisting the Use of the Death Penalty . International & Comparative Law Quarterly 62 ( 3 ): 523 – 56 .

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Muramatsu K. , Johnson D. T. , Yano K. . 2018 . The Death Penalty and Homicide Deterrence in Japan . Punishment & Society 20 ( 4 ): 432 – 57 .

Nagaraj V. K. 2017 . Human Rights and Populism: Some More Questions in Response to Philip Alston . Journal of Human Rights Practice 9 ( 1 ): 22 – 4 .

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Pinker S. 2011 . The Better Angels of Our Nature: Why Violence Has Declined . New York : Viking .

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Sarat A. 2001 . When the State Kills: Capital Punishment and the American Condition . Princeton University Press .

Singer P. 2016 . Is There Moral Progress? In Ethics in the Real World: 82 Brief Essays on Things that Matter , pp. 9 – 11 . Princeton University Press .

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Zimring F. E. , Johnson D. T. . 2012 . The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Criminal Justice. In Peterselia J. , R. Reitz K. (eds), The Oxford Handbook of Sentencing and Corrections , pp. 737 – 52 . New York : Oxford University Press .

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Facts &  Research

History of the Death Penalty

The death penalty has existed in the United States since colonial times. Its history is intertwined with slavery, segregation, and social reform movements.

There are excellent sources available for those interested in the history of capital punishment. The following pages contain a brief summary of that history, with an emphasis on developments in the United States.

This chart* chronicles the United State’s use of the death penalty over the past four centuries. The chart highlights the gradual rise in use of capital punishment in the seventeenth, eighteenth, and nineteenth centuries; a peak of executions in the early 20th century; moratorium; and then the resumption of executions after moratorium.

The use of the death penalty has declined sharply in the United States over the past 25 years. New death sentences have fallen more than 85% since peaking at more than 300 death sentences per year in the mid 1990s. Executions have declined by 75% since peaking at 98 in 1999.

For a timeline of significant events in the history of the death penalty in the United States, see DPIC’s Death Penalty Timeline . For dynamic visualizations and more information on executions and new death sentences in the modern era of capital punishment, see DPIC’s Executions and Sentencing Data pages.

*The statistics used in the chart were primarily compiled from M. Watt Espy and John Ortiz Smylka’s database, “Executions in the U.S. 1608-2002: The Espy File.” (Inter-University Consortium for Political and Social Research) Periodically, DPIC will feature additional information derived from the Espy file. See also The Espy File .

News & Developments

May 15, 2024

“ I Just Wanted…to Stay Alive”: Who was William Henry Furman, the Prisoner at the Center of a Historic Legal Decision?

Furman v. Georgia was one of the most mon­u­men­tal cas­es in American legal his­to­ry: the 1972 deci­sion over­turned every state death penal­ty statute in the coun­try and spared the lives of near­ly six hun­dred peo­ple sen­tenced to die. But the lead peti­tion­er, William Henry Furman, was lit­tle aware of his impact. Poor, Black, men­tal­ly ill, and phys­i­cal­ly and intel­lec­tu­al­ly dis­abled, he was sen­tenced to death for the killing of a home­own­er dur­ing a botched rob­bery, which he main­tains was acci­den­tal. ​ “ If…petitioner Furman or his crime illus­trates the ​ ‘ extreme,’ then nearly…

Oct 13, 2023

New Legal Research Declares ​ “ Heightened Standards” of Due Process in Capital Cases an ​ “ Illusion”

In a new law review arti­cle, Professor Anna VanCleave of the University of Connecticut School of Law argues that the ​ “ height­ened stan­dards” of due process pro­tec­tion for cap­i­tal defen­dants, required under the Eighth Amendment, are in prac­tice no more than ​ “ a veneer of legit­i­ma­cy and pro­ce­dur­al cau­tion” that fail to vin­di­cate defen­dants’ rights. Professor VanCleave found that in the absence of clear guid­ance from the Supreme Court as to the actu­al mean­ing of ​ “ height­ened stan­dards,” low­er courts apply the same stan­dards used in non-cap­i­tal crim­i­nal cas­es or even relax rules…

Dec 07, 2022

As Lethal Injection Turns Forty, States Botch a Record Number of Executions

On December 7 , 1982 , Texas strapped Charles Brooks to a gur­ney, insert­ed an intra­venous line into his arm, and inject­ed a lethal dose of sodi­um thiopen­tal into his veins, launch­ing the lethal-injec­tion era of American exe­cu­tions. In the pre­cise­ly forty years since, U.S. states and the fed­er­al gov­ern­ment have put 1377 pris­on­ers to death by some ver­sion of the method. Touted as swift and pain­less and a more humane way to die — just as exe­cu­tion pro­po­nents had said near­ly a cen­tu­ry before about the elec­tric chair — the method…

Nov 07, 2022

Closing the Slaughterhouse: The Inside Story of Death Penalty Abolition in Virginia

Virginia made his­to­ry in 2021 when it became the first Southern state to abol­ish the death penal­ty. Closing the Slaughterhouse: The Inside Story of Death Penalty Abolition in Virginia tells the sto­ry of the commonwealth’s jour­ney from lead­ing exe­cu­tion­er to ground­break­ing abo­li­tion­ist state. Written by jour­nal­ist, author, and anti-death penal­ty advo­cate Dale Brumfield , the book explores Virginia’s his­to­ry sur­round­ing cap­i­tal pun­ish­ment, start­ing with the first exe­cu­tion in 1608 through its abo­li­tion on July 1 ,  2021 .

Aug 01, 2022

Massachusetts Formally Exonerates Last ​ ‘ Witch’ Wrongfully Condemned During Salem Hysteria. Will Connecticut Follow Suit?

As Massachusetts for­mal­ly exon­er­at­ed the last per­son con­demned for witch­craft in the colony, efforts are under way to clear the names of the 46 peo­ple wrong­ful­ly charged with witch­craft in neigh­bor­ing Connecticut dur­ing the 17 th cen­tu­ry Puritan witch hunts.

Jun 21, 2022

Pennsylvania Teen Exonerated 91 Years After Sham Trial and Execution on Racially Motivated Charges that He Had Murdered a White Woman

An African-American teenag­er who was con­vict­ed and sen­tenced to death in Pennsylvania on false charges that he had mur­dered a white woman has been exon­er­at­ed, 91  years after he was executed.

Jan 14, 2022

Commentary: ​ ‘ Southern Pride,’ White Mob Mentality, and the Death Penalty

The same brand of Southern pride that inspired lynch­ings after the U.S. Civil War fuels sup­port for the death penal­ty today, writes legal ana­lyst Joia Erin Thornton (pic­tured) in a com­men­tary on the web pub­li­ca­tion, Blavity . In The Dark Southern Pride Upholding The Barbaric Death Penalty , pub­lished December 23 , 2021 , Thornton argues that, just as Southern states in Reconstruction turned to extreme carcer­al pun­ish­ments to reim­pose vio­lent con­trol over Black Americans after the abo­li­tion of slav­ery, Southern states today lead the way in executions.

Sep 01, 2021

Massachusetts 8 th Graders Push to Exonerate Woman Sentenced to Death in 1693  in Salem Witchcraft Hysteria

A group of 8 th graders from North Andover Middle School in North Andover , Massachusetts are cham­pi­oning efforts to posthu­mous­ly par­don a young woman who was sen­tenced to death for witch­craft in 1693 dur­ing the height of the Salem witch­craft hysteria.

May 06, 2021

South Carolina Legislature Authorizes Use of Electric Chair and Firing Squad as State Reaches 10 Years Without an Execution

One day shy of the tenth anniver­sary of the state’s last exe­cu­tion, the South Carolina leg­is­la­ture, frus­trat­ed by the state’s inabil­i­ty to obtain exe­cu­tion drugs, approved a bill that would autho­rize putting pris­on­ers to death in the elec­tric chair or by fir­ing squad.

Apr 30, 2021

Martin Luther King III : Virginia’s Death Penalty Repeal Shows ​ ‘ What is Possible When We Confront This Country’s Racist Past’

The his­to­ry of racial oppres­sion and lynch­ing in the U.S. South has, civ­il rights advo­cate Martin Luther King III writes, ​ “ too fre­quent­ly … gone untold and unad­dressed.” But, he says in an April 17 , 2021 op-ed in USA Today , Virginia ​ ’ s repeal of the death penal­ty ​ “ shows us what is pos­si­ble when we con­front this country’s racist past, and acknowl­edge how racism per­me­ates this country’s prac­tices and laws.”

Apr 09, 2021

Report: 83 % of Death Sentences Have Not Resulted in Executions Under Ohio’s ​ ‘ Lethargic’ Death Penalty

Just one out of every six death sen­tences imposed in Ohio in the past forty years has result­ed in an exe­cu­tion, accord­ing to the Ohio Attorney General’s 2020 Ohio Capital Crimes Annual Report . The report, released by Attorney General Dave Yost on April 1 , 2021 , crit­i­cized the state’s death-penal­ty sys­tem as ​ “ increas­ing­ly time-con­sum­ing, cost­ly, and lethargic.”

Syracuse Journal of Law & Civic Engagement

An inquiry into the ethics of capital punishment.

D. Alicia Hickok , Partner at Drinker Biddle & member of the American Bar Association’s Steering Committee of the Death Penalty Representation Project , & J.J. Williamson , Associate in the Drinker Biddle’s Litigation Group

The word “ethic” is derived from the Greek “ethos,” which itself has taken on multiple meanings. In the traditional Greek, it is used by Aristotle to describe the apparent character of the speaker. The Oxford English Dictionary recognizes that its origin relates to nature or disposition, but instead defines “ethos” as “[t]he characteristic spirit of a culture, era, or community as manifested in its attitudes and aspirations” or “the character of an individual as represented by his or her values or beliefs.” [1] Regardless of the definition, it is apparent that ethical behavior is necessarily an individual action and portrayal in relation to a community – although Aristotle’s definition is more susceptible to an absolute source of such “right behavior” or “moral action” than the Oxford English Dictionary’s.

The United States Supreme Court has certainly recognized that current community values are critical to an analysis regarding whether capital punishment violates the Eighth and Fourteenth Amendments to the United States Constitution. [2] But it has also recognized that an examination of those values must be tempered with respect for the “dignity of man” such that punishment must not be excessive, either through “the unnecessary and wanton infliction of pain” or by being “grossly out of proportion to the severity of the crime.” [3] These “natural law” values correspond in many instances to moral views set forth in ancient and sacred writing. Any analysis of the ethics of capital punishment thus need to echo the Supreme Court’s recognition of the possibility that something that has become “accepted” in society may nonetheless be “immoral.”

The response to an “immoral” but “accepted” practice represents an ethical choice. Indeed, many people have explored the dilemmas that arise when a community – either through its laws or practices – mandates or prohibits a course of action that is fundamentally at odds with what a person recognizes as an ultimate moral code. This is seen in Judeo-Christian scripture at least as early as Daniel 6, when King Darius was beguiled into signing a law that forbade prayer to any but him. Daniel was a slave who had become a trusted advisor to the king. He continued with his duties, but also continued to pray to God at home daily; the legal consequence of which was that Darius was compelled to throw Daniel into a lions’ den (from which, Daniel 6 explains, God delivered him, thus honoring Daniel’s adherence to the conduct dictated by his faith rather than the law created by the king).

In examining the ethics of capital punishment, then, this article will address three questions: Is there an absolute position on the death penalty that renders it immoral in all circumstances? What does the law permit, command, or prohibit? Does the practice accord with these permissions, commands, and prohibitions – and is the perception that it does? The answer to those questions then prompts a fourth: how is a lawyer in today’s legal system to act ethically in a state that authorizes capital punishment?

I. Is Capital Punishment Wrong According to Traditional Moral Measures?

One might perhaps think that the answer to any question of the ethics of capital punishment begins and ends with moral law. To be sure, in Gregg v. Georgia , [4] the Supreme Court recognized that right and wrong can transcends the laws on the books at any given moment. It certainly is the case that for some religious groups, any notion of capital punishment is contrary to fundamental beliefs. But it is equally the case that not all persons within those religious traditions – and not all religions – condemn capital punishment.

It is beyond the scope of this article to explore the full range of religious responses, which range from a conviction that the taking of a life can be compensated for only by another life to a belief that the sacredness of life can never justify condoning of the taking of another’s life, and include everything in between.

A brief overview of a couple of religious perspectives may, however, give a flavor of the moral reasoning undergirding religious responses. Those who favor the death penalty often cite both to the religious admonitions to honor civil law and to the recognition in Exodus 21 that injury is to be recompensed in kind, admonishing Israel to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” [5]

On the other hand, of those who are fundamentally opposed to capital punishment, most believe that taking of the life of another is wrong even for the state to do. In addition, many express a belief that capital punishment is an offense against the community, or that it is unfairly harmful to the person delegated to carry out the sentence. The conviction that the taking of life is wrong is heightened by – or in some cases replaced with – concerns that the punishment does not achieve its stated goals and is too fraught with uncertainty to be a viable sentence, even if there is a theoretical authority for a state to take a life.

Thus, for example, the Green Country Society of Friends spoke out about Oklahoma’s death penalty statute in 1996 by first recognizing that people “have the need and the right to seek safety and order for themselves and their communities” but rejecting capital punishment as a means to achieve that because (1) it does not respect the Spirit of God that they believe dwells in each person; (2) it “magnifies the tragedy of a lost life by killing again, ignoring the human capacity for change, quenching forever the possibility of redemption and renewed contribution”; (3) because it harms the community by giving violence a “legitimate status as a way to resolve problems”, sanctioning vengeance as an acceptable response to harm, shifting the focus from healing and help to victims, offenders, and affected families and communities, and because it is possible that an innocent person is being executed; (4) because those persons to whom the task of execution is delegated are at “moral and psychological peril to themselves.” [6] In 1999, the United States Conference of Catholic Bishops, observing that it had been opposed to the death penalty for over twenty-five years, stated:

We oppose capital punishment not just for what it does to those guilty of horrible crimes but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.

We are painfully aware of the increased rate of executions in many states. Since the death penalty was reinstituted in 1976, more than 500 executions have taken place, while there have been seventy-four death-row reversals late in the process. Throughout the states, more than 3,500 prisoners await their deaths. These numbers are deeply troubling. The pace of executions is numbing. The discovery of people on death row who are innocent is frightening. [7]

After Timothy McVeigh, a Catholic, was executed in Indiana, John and Lauren McBride authored an article in the Saint Anthony Messenger, a paper in the area, [8] reflecting on the execution and on a commencement address that Sister Helen Prejean gave at St. Mary of the Woods College in 2001. Sister Helen Prejean had said that that the death penalty was imploding because it “has always been unfair,” remarking on the expense, the lack of deterrence, and the irreversible and irremediable character of the penalty. Quoting Matthew 25, the authors of the article contended that when Jesus taught that what was done to the least of his brothers was done to him, and linked that to Sister Helen’s admonition that scripture teaches not to return hate with hate or violence with violence. The author also quoted Archbishop Daniel M. Buechlein of the Indianapolis Archdiocese (which includes Terre Haute), who wrote that the “death penalty ‘feeds a frenzy for revenge… [which] neither liberates the families of victims nor ennobles the victims of crime. Only forgiveness liberates.’” [9] In conclusion, the authors reflected on a movement in churches across the nation to ring their bells whenever an execution takes place, remembering John Donne’s statement that “any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.” [10] The author also interviewed others who were not opposed to the death penalty per se but nonetheless expressed concerns that the process needed reform and decried the racial and economic disparities in its application.

These concerns are echoed in Jewish law, which did not proscribe capital punishment, but which did define strict parameters within which it could be applied. The Talmud Sanhedrin, in exchanging views on the Mosaic law from the third to the fifth centuries C.E., stressed the need for procedural protections before a person could be sentenced to death for treason, discussing the scriptural requirement that there be two witnesses. [11] If one witness was disqualified, the evidence of the others was invalid. Witnesses were sequestered and examined and cross-examined, with accusing witnesses permitted to retract testimony but defending witnesses not. Inconsistencies – even as to time or day – disqualified witnesses. These protections were both to “ensure reliability of outcome and to enhance the possibility of acquittal in a capital case.” [12]

A Talmudic brief was submitted as an amicus in Bryan v. Moore . [13] The authors of the brief were addressing only whether electrocution was cruel and unusual. In their analysis, they recognized that from ancient times, rabbis have been divided whether capital punishment could ever be imposed. Even those that sanctioned it required strict standards of proof (before a court of at least 23 judges), and when execution was carried out, the law required a means to be chosen that prevented unnecessary pain and avoided mutilation or dismemberment. Indeed, any in favor point to sacred writings that stress the authority to enforce justice and protect a community but also stress the exceptional nature of the punishment. [14]

These historic and faith-based perspectives, taken together, have led many persons – and an increasing number of states – to conclude that even if it is theoretically possible to have a crime that warrants a sentence of death, the cost (both economically and morally) is too high, the risk of inaccuracy is too great, and the procedural protections are not strict enough.

But many others, including many with deeply-held religious convictions, affirm the decisions of the Supreme Court, Congress, and the legislatures and high courts of many other states that continue to uphold and enforce the death penalty. That said, the law enunciated by the United States Supreme Court has not stagnated over time. Instead, the United States Supreme Court has narrowed the classes of persons who can be subject to the death penalty and has fleshed out the characteristics that need to accompany any capital sentencing scheme in order for it to satisfy the requirements of the United States Constitution.

II. What Does the Law Permit, Command, or Prohibit?

Because statutes ultimately must conform to the Constitution, the starting point for this analysis are the determinations of the United States Supreme Court in holding that capital punishment was not absolutely proscribed by the Constitution. Two days before the bicentennial, on July 2, 1976, the United States Supreme Court issued five opinions, three affirming the constitutionality of state capital sentencing schemes, and two striking down other such schemes as unconstitutional. In Gregg , the Court explained that in an Eighth Amendment analysis of a statute, there is a presumption that a statute is valid, in part because legislative judgment “weighs heavily in ascertaining [contemporary] standards” and to “respond to the will and consequently the moral values of the people.” [15] After tracing the history of capital punishment in this country, the Court found that the “relative infrequency” with which juries imposed capital sentences did not reflect a “rejection of capital punishment per se” but the belief that the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” [16] The Court also recognized both the retributive and deterrent effects of the death penalty. [17]

But while a state has the right to impose the death penalty, it cannot do so arbitrarily or capriciously, and it must ensure that the sentencer’s discretion is guided and informed. [18] In looking at Georgia’s statutory scheme in particular, the Supreme Court observed that the Georgia Supreme Court was required to “review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’” [19] Thus, each instance in which a death sentence is imposed will receive the direct attention of the justices of the state’s Supreme Court, and they will address directly some of the criteria that the United States Supreme Court found needed to be present in a capital sentencing scheme to render it constitutional. [20]

Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case. In the years immediately following Gregg , it was that court’s regular practice to include in its review cases that did not result in a death sentence. The Supreme Court later clarified in Pulley v. Harris that a comparative proportionality review was not demanded for every capital sentence. [21] More recently, however, the Court explained that it had intended only to “convey our recognition of differences among the States’ capital schemes and the fact that we consider statutes as we find them” – not to undermine the Court’s prior conclusions that “such review is an important component of the Georgia scheme.” [22] As shown in the attached chart, it appears that currently there are at least nine states that have no provision for proportionality review in their state statutes.

In Proffitt v. Florida , [23] the sentencing findings of the jury were advisory only; the actual sentence was determined by the trial judge, but “‘[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. [24] The Supreme Court found that jury sentencing was not constitutionally mandated. [25] Likewise, in Jurek v. Texas , [26] the Court upheld Texas’s capital sentencing scheme, concluding that Texas’s narrowing of death-eligible crimes to a limited category of murders served the same function as aggravating factors did in Georgia and Florida. [27] But the Court was careful to say that it would not be enough to limit the evidence relevant to why a death penalty should be imposed; there must also be consideration of evidence why the death penalty should not be imposed. In other words, a capital sentencing system must: “guide[] and focus[] the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” [28] “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” [29] Finally, “[b]y providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” [30]

In contrast, in Woodson v. North Carolina , [31] the Supreme Court rejected the North Carolina statutory scheme, because North Carolina mandated a sentence of death for first-degree murder – in part because the Court construed such statutes as “simply paper[ing] over the problem of unguided and unchecked jury discretion.” [32] The Court explained what it meant to have a jury consider evidence in mitigation:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. [33]

Although Louisiana’s statute used “a different and somewhat narrower” definition of death-worthy murder than North Carolina, it was also mandatory, and the Supreme Court found it likewise unconstitutional in Roberts v. Louisiana . [34] In so holding, the Supreme Court reiterated that mandatory sentences simply could not be upheld, because society has “reject[ed] the belief that ‘every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.’” [35] The Court was also troubled that in order to provide an opportunity to sentence a defendant to less than death, juries were instructed on lesser offenses, regardless of the evidence, which the Court found “plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate – a result that contained an unacceptable “element of capriciousness.” [36]

Through a series of opinions, the Supreme Court would later clarify that a jury cannot sentence a defendant to death without being allowed to consider mitigating evidence; indeed, “when the jury is not permitted to give meaningful effect or a ‘reasoned moral response’ to a defendant’s mitigating evidence – because it is forbidden from doing so by statute or a judicial interpretation of a statute – the sentencing process is fatally flawed.” [37] And, of course, a jury cannot consider evidence in mitigation that counsel fails to uncover, apprehend, pursue, and present. Accordingly, counsel cannot competently represent a capital defendant without developing sufficient evidence about his or her background to make a reasonable strategic decision about what evidence to present in mitigation. [38]

Of course, evidence may not be put in front of a jury because it was never produced to the defense. The role of prosecutors to ensure a fair trial predates AEDPA by decades.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. [39]

These principles have given rise to a series of decisions, beginning with Brady v. Maryland , [40] in which the Supreme Court has articulated the constitutional obligation of the prosecution to provide the defense with exculpatory and impeachment evidence. Claims involving the obligations of the attorneys in a case (so-called Strickland (ineffectiveness) or Brady (withholding of evidence)) are the primary claims raised in collateral changes to capital convictions.

In addition, in recent years, certain classes of persons have been determined incapable of being sentenced to death, including persons who are mentally retarded (in Atkins v. Virginia ) [41] and juveniles ( Roper v. Simmons ). [42] In extending the rationale of Atkins to juveniles, the Supreme Court found that there were three characteristics of juveniles that rendered the death penalty inappropriate: (1) the lack of maturity and “underdeveloped sense of responsibility;” (2) a heightened susceptibility to “negative influences and outside pressures;” (3) and a less “well formed” character. [43] The Supreme Court concluded that:

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. [44]

There are also constraints upon the execution [45] and trial of persons who are mentally incompetent, [46] but these constraints have not led to a blanket prohibition against capital sentences for persons with specific mental illnesses – or to a suspension of all proceedings while a person is incompetent. [47]

There is one more factor that has not yet been addressed specifically by the United States Supreme Court but that bears on the reliability of the verdict and the information that is in front of sentencers to consider. There is wide variation in the statutory (or rules) requirements for notice of intent to seek the death penalty by the prosecution, with most states requiring notice at some point after arraignment (typically sixty days or less), but others requiring notice only at a certain point before trial . Indeed, in Alabama, the death penalty may be sought in any case in which a district attorney has charged a defendant with capital murder, with no notice other than the charge itself required. [48] And in New Hampshire, the only requirement is that notice occur before trial or acceptance of a guilty plea. South Carolina and Tennessee require notice only thirty days prior to trial. [49] If a defendant is provided with ample resources to prepare for a capital penalty phase – whether or not it is to occur – notice may not be problematic. But where resources are limited, it appears unreasonable to ask a lawyer – or for that matter, a trial court – to authorize extensive resources to prepare for a case in mitigation that may or may not be a part of the trial. And yet, mitigation preparation – with its requisite investigation and consultation of experts – cannot be authorized and carried out in only a month without seriously undermining the reliability of the information that is placed before the sentencer.

At the moment then, a capital sentence can be upheld by the Supreme Court as constitutional only if there is a trial in which the community can have confidence. That, in turn, requires a competent defendant represented by counsel who has the resources, time, and skill to present a sentencer with evidence in mitigation that informs the sentencer’s decision whether to impose death for the narrow class of the most serious crimes by making a non-arbitrary, non-capricious, guided decision.

The standards that are applied to evaluate the fairness of the capital process are increasingly narrowed, however. On the one hand, state and federal law permit collateral attacks on allegedly unfair processes, through state and federal habeas or other post-conviction relief mechanisms. But on the other hand, such attacks are subject to significantly heightened levels of deference and narrowed bases for challenge, some statutory (such as that imposed by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)), and others by the standard recognition that the presumption of the finality of a judgment increases with each level of review. In collateral review, traditional criminal precepts in multiple contexts (including ineffective assistance and non-disclosure of evidence) require a showing of prejudice that is defined, not by “whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” [50] This concept is notoriously subjective and uneven in its application, thereby undermining the confidence that is the stated goal.

More fundamentally, the Court has grappled – beginning with Woodson – with the recognition that fair procedures and reliability are more essential in the capital sentencing context than in any other, because death is different in kind, and not merely in degree – indeed “[d]eath in its finality differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” [51] And yet, in a system in which the focus – and expenditures of money – increase disproportionately at the very stages when the standard of review becomes the hardest to satisfy, the public message is that procedures are not fair, sentences of death are not reliable, and verdicts are not worthy of confidence.

III.       What is the Community Practice?

Because the United States Supreme Court has determined that capital punishment is not absolutely proscribed by the Constitution, current practice has largely been placed into the hands of the states, and more specifically the state legislatures, to determine how such a process will function, as well as to define its limits. Eighteen states, as well as the District of Columbia, have chosen to abolish the death penalty outright: Michigan was the first in 1846, and Maryland the most recent in 2013. Most recently, Governor Tom Wolf of Pennsylvania imposed a moratorium on the Commonwealth’s execution of individuals pending a review of a forthcoming report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. [52] The death penalty, then, remains a viable form of punishment for thirty-two states, as well as the federal government and the U.S. military, though the exact contours of the implementation of this ultimate type of punishment varies widely by jurisdiction.

One area in which the states that continue to employ the death penalty differ is in the qualification standards each state has set (or not set) for the lawyers who represent capital-eligible defendants at the trial level. The idea of standards for capital counsel is not new; in fact, suggested qualifications have been published since 1989, when the American Bar Association (“ABA”) published the Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. [53] A little over ten years later, the campaign to implement capital counsel qualifications began anew when, in 2001, the ABA commissioned the Death Penalty Representation Project to revise the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the “ABA Guidelines”). [54] The revised ABA Guidelines were subsequently adopted on February 10, 2003 by the ABA House of Delegates, intended to “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” [55] Interestingly, the scope of the ABA Guidelines was purposefully broad, and meant to

apply from the moment the client is taken into custody and extend to all states of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial post-convocation review, clemency, and any connected litigation. [56]

In setting qualifications for capital defense counsel, ABA Guideline 5.1 lists several factors that a state agency establishing such qualifications should consider, including whether counsel has:

• a license to practice in the jurisdiction;
• demonstrated commitment to zealous advocacy and high quality legal representation in the defense of capital cases;
• a completion of suggested training requirements;
• substantial knowledge of relevant federal and state law governing capital cases;
• skill in oral advocacy;
• skill in investigation, preparation, and presentation of evidence bearing on mental status;
• skill in investigation, preparation, and presentation of mitigating evidence;
• skill in the elements of trial advocacy, including jury selection, cross-examination of witness, and opening statements and closing arguments.

The ABA Guidelines also call for such measures as a monitoring of capital counsel’s workload, in order that the lawyer will “provide each client with high quality legal representation in accordance with [the ABA Guidelines].” [57] Additionally, capital counsel is to create a defense team that includes persons such as a mitigation specialist, mental health specialist, and other such specialists or persons as may be needed to bring a high level of legal representation on behalf of the client. [58] The ABA Guidelines do not address, however, how such a high caliber team should be funded, suggesting only that counsel should be compensated “for actual time and service performed at an hourly rate commensurate with the prevailing rates for similar services performed by retained counsel in the jurisdiction, with no distinction between rates for services performed in or out of court.” [59] While most of the guidelines speak to lawyer behavior, funding does not. In most instances, it is the state that funds capital defense, and it is the responsibility of the electorate to hold legislators accountable for ensuring sufficient funds to attract dedicated counsel and to provide them with sufficient resources to provide a thorough defense.

Since their revision, the ABA Guidelines have received some traction among both state and federal courts. [60] These qualification standards set forth by the ABA, however, are merely suggestions; the adoption of the ABA Guidelines, or the development and implementation of a separate code, is ultimately left to the States. This was emphasized by the Supreme Court in Bobby v. Van Hook , a per curiam decision that highlighted the notion that the ABA Guidelines are “‘only guides’ to what reasonableness [in the context of attorney representation] means, not its definition.” [61] So long as capital counsel make objectively reasonable choices in the course of representation, the “states are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented[.]” [62]

As the chart below illustrates, states have implemented capital counsel qualification standards in various degrees. For example, in 2005 Alabama adopted the ABA Guidelines as its code for capital counsel qualifications, noting, however, that the adoption of said Guidelines was “not to be considered a rule or requirement but only a recommendation.” [63] Texas has adopted a set of guidelines very similar to those promulgated by the ABA, which it calls the Guidelines and Standards for Texas Capital Counsel. [64] Like the ABA Guidelines, Texas requires defense teams to include a mitigation specialist and the lawyers on the team must complete a comprehensive training program in death penalty cases. [65]

Several states have taken some aspects of the ABA Guidelines a step further, requiring counsel to meet quantifiable benchmarks before being accepted—whether formally or informally—into the capital counsel bar. Arkansas requires its capital counsel attorneys to have at least three years of criminal defense experience, as well as having served as lead or co-counsel at least five capital trials. [66] Additionally, it also imposes an additional requirement of six hours of continuing legal education in the field of capital defense within the year leading up to the capital case. [67] California requires its capital counsel to have at least ten years of litigation experience in the field of criminal law, including ten serious or violent crime jury trials, at least two of which were for murder. [68] Like Arkansas, a CLE requirement (a requirement common to almost all states with capital counsel qualifications) is imposed, requiring fifteen hours of training in capital defense within the prior two years. [69]

Most states have crafted requirements that fall somewhere in between the Arkansas and California requirements, but not all. Colorado, for example, imposes qualifications upon capital counsel, but only at the post-conviction stage of proceedings. [70] And New Hampshire does not have any policies regarding qualification standards for capital defense counsel – although it is worth noting that New Hampshire has not executed anyone since 1939, despite the death penalty remaining in state law. [71]

Although the qualification standards discussed above pertain primarily to trial counsel, the only federal “stick” that is used to ensure the quality of representation is directed not at trial counsel but at post-conviction counsel. Sections 2261 and 2265 of title 28 of the United States Code (part of the Antiterrorism and Effective Death Penalty Act, “AEDPA”) “provide[] for an expedited review procedure by which state courts are given more deference in the federal habeas review process,” only if certain requirements are satisfied by the states. [72] But both provisions place requirements on the appointment of counsel at the post-conviction stage of the proceedings, i.e ., after a capital punishment sentence has already been imposed by the trial court and affirmed on direct appeal. The deference the state court adjudications receive, then, is based not on the quality of representation when the matter was tried before a finder of fact but the quality of representation in post-conviction collateral attacks – and those state-level collateral attacks are themselves entitled to a deference that a court on direct appeal does not employ.

Two states – Utah and Pennsylvania – do not even fund capital defense at the state level. [73] It is a sobering statistic that Philadelphia’s compensation for court-appointed trial lawyers has been among the lowest of any major metropolitan area in the country – and that of the 100-plus inmates sentenced to death in Pennsylvania since 1978, almost all had their appeals overturned on collateral review. [74] Given the costs associated with post-conviction and habeas appeals, one cannot help but wonder whether the Supreme Court’s requirement of a verdict worthy of confidence needs to be the primary focus of funding for all jurisdictions that choose to maintain the death penalty, and whether, at some point, the Supreme Court will find that a right to a fair trial means that the structure that needs to be in place to ensure a fair trial has to precede trial.

It can thus be argued—as this article does—that the AEDPA statute places its emphasis on the wrong stage of the proceedings – and that creating an incentive to expend large sums of money, employ significant teams of lawyers, and retain multiple experts at the two levels of collateral attack – state and federal – at which the greatest degrees of deference are owed to the state court judgment is not only a poor allocation of resources but a trigger for tension between the bench and bar that ultimately can only harm the interests of the capital defendant.

This tension is a product of an appellate system that, on the one hand, accords deference to the fact-finding of judges and juries – and to the discretion of a trial court to manage the conduct of a trial and the evidence and witnesses that may be considered. That deference extends to the reasonable, strategic decision of a lawyer. On the other hand, habeas counsel and others are required to look at the trial through a prism of standards and scopes of review; even though they see in hindsight defenses that could have been raised, experts that could have been proffered, and mitigation that could have been presented to a jury. As will be seen at greater length below, the more convinced that those not a part of the trial become that capital trials are unfair, the further they push the envelope to force a new trial – and the more entrenched the perspective that all death sentences should be overturned, and the more strident and less respectful the call for that relief, the greater a gulf is placed between the bench and the bar.

The parameters that the United States Supreme Court have articulated for state statutory schemes – trials in which the community can have confidence at which sentencers who are fully apprised of the evidence, including evidence in mitigation, render rational and non-arbitrary sentences – are not advanced by comparing lawyers who are frequently poorly paid and who have to seek court approval for any appointed expert or testing to be measured against what sometimes appears to be unlimited resources and an unlimited appetite for flyspecking a trial in hindsight. It is at least an understandable (and perhaps a natural) reaction to say – as numerous opinions on ineffective assistance do – that the right to effective counsel is not the right to perfect or ideal counsel. [75] Or, as a recent Pennsylvania Supreme Court opinion explained, “a defendant’s competency to stand trial must be evaluated at the time of trial” – and contrary evidence produced in hindsight “overlooks this requirement.” [76]  But although the response of courts is natural, so is the unease reflected in the public’s reaction to a denial of relief in the face of new information by experts and others.

IV. What is the Ethical Response?

In a provocative article, Fred Zacharias and Bruce Green explain that the nineteenth century debate about what defines a lawyer’s ethical role – that of a lawyer’s ethical responsibility being to his or her client and that of a lawyer beholden to his or her own conscience – creates a false dichotomy. [77] Instead, they posit that a coherent ethic is found in Rush v. Cavenaugh , [78] which said, inter alia , that a lawyer “is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for the conviction of an innocent man.” Thus, they conclude, there is a professional conscience that co-exists with a personal conscience and that together set limits on what a lawyer can do in advocating for a client. [79] In this way, “lawyers’ obligations are distinguished from those of other agents because of their office, which imposes countervailing obligations to the court to which the lawyer owes fidelity.” [80]

On this view, there are obligations of professional conscience that transcend the obligations set forth expressly in rules of professional conduct (those being prohibitions against knowingly participating in illegality or fraud, filing frivolous claims, or failing to be candid with a court). [81] In addressing the unwritten obligations, a lawyer must exercise judgment in determining “the legal and systemic considerations that are familiar to lawyers” and weighing those against the client’s interests and the dictates of personal conscience. [82] The challenge here is that in most instances a person presumes that his moral convictions alone will dictate ethical choices and actions. But the legal profession – and particularly in Green’s and Zacharias’s view – requires one’s morality to inform and be informed by one’s obligations to the court and one’s duties to his or her client. This has significant implications for litigating capital cases, and particularly for collateral proceedings, because the goal cannot be to avoid the carrying out of a death sentence; it must instead be to vindicate a particular individual’s right to a fair trial, developed within the (a) law – either as it exists or as extended in good faith; (b) facts and procedural history of the case; and (c) rules of the court and professional conduct.

In 1982, the Honorable Ruggero Aldisert used the positioning of competence as first in the then-new Model Rules of Professional Conduct to discuss the responsibility a lawyer has “to his client, the courts, and the development of the law” – a responsibility that was greater than that imposed by other jurisdictions. [83] Focusing on appellate lawyers, he stressed that American lawyers need to be cognizant of their responsibility not only to the client “but also to the court in its law-making function.” [84] He then analyzed what in his mind makes an appellate lawyer competent, stating, inter alia , that the first argument in an appellate brief should be the one most likely to persuade the court and that the brief should set forth “only those arguments which have the capacity to persuade” – and he suggested that no brief should exceed five points and preferably should not have more than three. [85] This message of his – that winnowing is essential to a good appeal – is widely held among judges.

But in representing a capital defendant, this view is in tension not only with the requirement of exhaustion but with the uncertainty that a defendant will be able to avail himself or herself of developing jurisprudence without arguing for it. In Teague v. Lane , the United States Supreme Court determined that most new rules of criminal procedure – unless they came within certain narrow exceptions [86] – could not be applied retroactively. In O’Dell v. Netherland , the United States Supreme Court applied Teague to deny relief to a capital defendant, finding that the rule enunciated in Simmons v. South Carolina , 512 U.S. 154 (1994) – that a defendant must be permitted to inform his sentencing jury that he is parole-ineligible if the prosecution argues that he presents a future danger – was a new rule of criminal procedure and not a watershed one that “implicat[ed] the fundamental fairness and accuracy of the criminal proceeding.” [87] Likewise, in Beard v. Banks , the United States Supreme Court found that the invalidation of capital sentencing schemes that required jurors to disregard mitigation that was not found unanimously was a new rule that did not come within either exception. [88]

The response of a zealous advocate is to argue for good-faith extensions of the law – and to try to anticipate any such changes that might be on the horizon. But doing so is inconsistent with the premise with which Judge Aldisert and others begin – that only the strongest ( i.e ., the most likely to persuade a court) arguments should be in a brief. The ABA as well has said that given the legal climate, a lawyer has a responsibility to raise all arguments potentially available. [89] The resultant long briefs, filled with issues and sub-issues, some only partially developed, has led to frustrations by the bench at the time it takes to review (or ferret out) arguments and address them carefully, and a sense that the briefing and other tactics are placing personal agendas above the ethical obligation to the courts.

In the concurrence of Commonwealth v. Eichinger , for example, a Pennsylvania Supreme Court justice quoted the post-conviction trial court, which had had to reallocate its other cases to senior judges to handle a single post-conviction petition.

A lawyer has a sacred duty to defend his or her client. Our codes of professional responsibility additionally call upon lawyers to serve as guardians of the law, to play a vital role in the preservation of society, and to adhere to the highest standards of ethical and moral conduct. Simply stated, we are all called upon to promote respect for the law, our profession, and to do public good. …. This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. [90]

Another justice, also concurring, expressed his frustration this way:

Simply put, those who oppose the death penalty should address their concerns to the legislature. Using the court system as a way to delay, obstruct, and thus, by implication invalidate a law passed by duly elected senators and representatives cannot be characterized as proper, zealous advocacy. That is to say, “the gravity of a capital case does not relieve counsel of their obligation under Rule 3.1 of the Rules of Professional Conduct not to raise frivolous claims. . . . While an attorney may have an ethical obligation to be a zealous advocate, he has a duty not to pester the courts with frivolous arguments. In fact, an attorney does his client a disservice by failing to winnow out the weaker arguments and focusing on central, key issues, upon which his client might be granted relief. Adding weaker, particularly frivolous arguments, dilutes the force of the stronger ones and makes it difficult for a court to focus on those issues which are deserving of attention, i.e., those which are non-frivolous. Common sense dictates that, when an attorney raises an excessive number of issues, as occurred in this PCRA case, the motivation for so doing is to paralyze the court system to further political views. It is not hard to discern that, in such cases, the strategy of PCRA capital counsel is not necessarily to put forth the best legal arguments upon which the client may be granted relief, but rather, the strategy is to keep, at all costs, his client from suffering the ultimate penalty proscribed by law. Appellant as PCRA counsel have the duty, like any attorney, to raise and pursue viable claims, and they must do so within the ethical limits which govern all Pennsylvania. [91]

In other words, collateral capital litigation in Pennsylvania and elsewhere demonstrates the divide between those who advocate loyalty to the court and to jurisprudential principles and practices and those who seek to overturn death sentences through whatever procedural or legal means are available or are perceived as potentially available. Those who see the practices as disloyal to the courts also see them as divorced from a lawyer’s loyalty to his client. Those involved adamantly disagree, believing that saving or extending a life is in the best interests of the client.

The ramifications of the dilemma posed by this tension are not merely theoretical, or even philosophical. As the Supreme Court of Pennsylvania explained, its recent movement to strict word limits and other briefing parameters in all appeals was in response to what it perceived as briefing abuses in capital post-conviction briefing in that Court. [92] Similarly, while Pennsylvania has refused to find waiver for claims of incompetency that are raised for the first time in collateral proceedings, the Pennsylvania Supreme Court’s perception that such claims are being abused has led to an increasing number of justices expressing a willingness to overrule the preservation exception. [93] Said differently, what may extend the time that a defendant is alive may come at the cost of credibility and worse, not just for the defendant or petitioner in a given case but for all parties in all criminal – and, often, civil – cases. That is a high price to pay in response to a system that, if it is to work at all, must provide a cost-effective, reliable, non-arbitrary process for determining whether a defendant is death-worthy.

Moreover, when there is a lack of congruence between morality and ethics, those outside the profession question the efficacy of the system itself. Many people decry capital punishment as “too costly” or, at least more costly than life in prison – and empirically, that is true. [94] Some use that costliness as an additional reason that the death penalty should be abolished. Others decry the expense as wasteful and agenda-driven, and call for changes to the system to make it more “efficient.” [95] Part of the reason that the expense is as high as it is is attributable to the resources that are devoted to multiple rounds of review – direct appeal, followed by post-conviction trial court practice and appellate review, followed by federal habeas trial court practice and appellate review – with the potential for seeking a writ of certiorari after each round. And that may be repeated if, for example, claims in federal court are found unexhausted and a defendant is permitted to return to state court to exhaust them. The only way to lessen the costs on the “back end” of state and federal collateral review is to ensure that there are adequate resources at the front end – at the trial that is the focus of the constitutional assurances that a sentence of death can be carried out.

For states that have a death penalty on the books, the statutes and schemes must provide for verdicts in which a community can have confidence. That means that resources – mitigation specialists, mental health and other experts, and well-trained and fairly-compensated lawyers should represent defendants at trial and on direct appeal. Post-conviction proceedings and federal habeas proceedings should not be the primary stage at which the fairness of a trial is litigated. In order for that to happen, there needs to be changes, which in some cases or in some states may be radical ones.

First , as the law changes, it should change for all who were convicted under the old system. When Ring v. Arizona was decided, there were 30 resentencings on remand. [96] Until the bar has confidence that defendants will get the benefit of evolving law, lawyers will be unable to avoid arguing for extensions of the law in any way they perceive applicable to the defendants they represent.

Second , those firms and private donors that are assisting on the “back end” – at federal habeas or in state post-conviction proceedings – should help instead to fund trial-level resources, whether retaining and presenting experts, funding mitigation specialists, or donating funds to help pay for sufficient adequately compensated counsel.

Third , federal deference should be determined by how well a state ensures verdicts worthy of confidence, not by how well it structures post-conviction relief.

This article has explored several inverted incentives that call into question whether the constitutional scheme that the United States Supreme Court envisioned can be achieved – and that at the least shows that it is not there now. As lawyers, the authors of this article adhere strongly to the conviction that a lawyer may exercise zealous advocacy and personal belief only within the confines of our duties to the courts in which we practice – and, as Judge Aldisert suggested – to the law itself. In that spirit, we offer the following thoughts:

At the end of the day – whether because one cannot countenance any taking of life or because one believes that it is not possible to create a system worthy of confidence when it comes to a sentence of death, there will be some who will say that none of this matters: that no matter how a capital sentencing scheme is structured or what protections are in place, it is wrong to execute persons at all. There are two vehicles for the expression of that ethical choice: the legislatures, state and federal, which enact the laws defining or abolishing the death penalty; and the views of the community, which the United States Supreme Court has said is critical to an Eighth Amendment analysis. But for those struggling to respond to capital punishment as lawyers, all three duties of loyalty must be kept in balance: to one’s client, to one’s own conscience; and to the jurisprudential system – both the development of the law and the individual tribunal before which one appears. Daniel prayed before an open window, but he also continued to serve the king.

[1] “ethos.” Oxford English Dictionary. 2014. http://www.oed.com/viewdictionaryentry/Entry/64840 (18 Apr. 2015).

[2] Gregg v. Georgia , 428 U.S. 153, 173 (1976).

[4] Gregg v. Georgia , 428 U.S. at 183-84.

[5] Exodus 21:23-25.

[6] Minute of the Green Country Monthly Meeting of the Religious Society of Friends, on Capital Punishment (May 12, 1996) available at http://www.qis.net/~daruma/cap-pun2.html.

[7] Statement of the Administrative Committee of the United States Conference of Catholic Bishops, on Ending the Death Penalty (Mar. 24, 1999).

[8] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp.

[9] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp .

[11] Sheldon M. Finkelstein, A Tale of Two Witnesses: The Constitution’s Two-Witness Rule and the Talmud Sanhedrin , 43 Litigation 4 (Summer 2010).

[12] Id . at 17.

[13] Bryan v. Moore , 528 U.S. 1133 (2000) (dismissing as improvidently granted a challenge to electrocution because Florida’s law changed in the interim to permit execution by lethal injection).

[14] E.g., Qur’an 6:151 (“Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom.”).

[15] Gregg , 428 U.S. at 175-76.

[16] Id. at 181-82.

[18] Gregg , 428 U.S. at 189, 194-95.

[19] Id . at 204.

[21] Pulley v. Harris , 465 U.S. 37 (1984).

[22] Walker v. Georgia , 555 U.S. 979, 983-84 (2008).

[23] Proffitt v. Florida , 428 U.S. 242 (1976).

[24] Id . at 208 (quoting Tedder v. State , 322 So. 2d 908, 910 (Fla. 1975)).

[25] Id . at 252.

[26] Jurek v. Texas , 428 U.S. 262 (1976).

[27] Id. at 271.

[28] Id . at 274.

[29] Id . at 276.

[31] Woodson v. North Carolina , 428 U.S. 280 (1976).

[32] Id. at 302.

[33] Id . at 304 (citations omitted).

[34] Roberts v. Louisiana, 428 U.S. 325 (1976).

[35] Id . at 333.

[36] Id . at 335.

[37] Abdul-Kabir v. Quarterman , 550 U.S. 233, 264 (2007).

[38] E.g., Wiggins v. Smith , 539 U.S. 510, 535-36 (2003). The first case to define a constitutional right to counsel as a right to effective counsel is Strickland v. Washington , 466 U.S. 668 (1984).

[39] Berger v. United States , 295 U.S. 78, 88 (1935). See also Mooney v. Holohan , 294 U.S. 103, 112 (1935) (rejecting the Attorney General’s contention that a prosecutor’s obligation extends only to evidence in possession of the defendant).

[40] Brady v. Maryland, 373 U.S. 83 (1963).

[41] Atkins v. Virginia , 536 U.S. 304 (2002).

[42] Roper v. Simmons , 543 U.S. 551 (2005).

[43] Id . at 569.

[44] Id . at 570 (citations and internal quotations omitted).

[45] Ford v. Wainwright , 477 U.S. 399, 401 (1986) (“For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.”).

[46] Drope v. Missouri , 420 U.S. 162, 172 (1975) (recognizing that it violates due process to fail “to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial.”).

[47] E.g ., Ryan v. Gonzales , 133 S. Ct. 696 (2013) (finding no statutory right to a suspension of habeas proceedings during the pendency of petitioner’s incompetence).

[48] Ala. Code § 13A-5-40.

[49] South Carolina Statutes, § 16-3-26; Tennessee Rule of Criminal Procedure 12.3(b)(1) (“When the indictment or presentment charges a capital offense and the district attorney general intends to ask for the death penalty, he or she shall file notice of this intention not less than thirty (30) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.”).

[50] Kyles v. Whitley , 514 U.S. 419, 434 (1995) (emphasis added).

[51] Lankford v. Idaho , 500 U.S. 110, 125-26 & nn. 20, 21 (1991).

[52] See Governor Tom Wolf, Memorandum, Death Penalty Moratorium Declaration, available at http://www.pa.gov/Pages/NewsDetails.aspx?agency=PAGovNews&item=16512.

[53] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/1989guidelines.authcheckdam.pdf .

[54] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf .

[55] ABA Guideline 1.1(A).

[56] ABA Guideline 1.1 (B).

[57] ABA Guideline 6.1.

[58] ABA Guideline 10.4. In 2008, the ABA published the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (the “Supplementary Guidelines”). The objective of the Supplementary Guidelines is to “summarize prevailing professional norms for mitigation investigation, development and presentation by capital defense teams, in order to ensure high quality representation for all persons facing the possible imposition or execution of a death sentence in any jurisdiction.”

[59] ABA Guideline 9.1.

[60] See, e.g ., Littlejohn v. Trammell , 704 F.3d 817 (10th Cir. 2013); Link v. Luebbers , 830 F. Supp. 2d 729 (E.D. Mo. 2011); State v. Hunder , 960 N.E.2d 95 (Ohio 2011).

[61] Bobby v. Van Hook , 558 U.S. 4, 8 (2009).

[62] Id . at 9.

[63] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[64] Guidelines and Standards for Texas Capital Counsel, State Bar of Texas , 69 Tex. Bar J. 10, 966-982 (Nov. 2006), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/TX_Bar_Association_adopted_version_of_ABA_Guidelines.authcheckdam.pdf .

[66] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[67] Public Defender Commission, State of Arkansas, available at http://www.arkansas.gov/apdc/news/qualifications.html#Cases.

[68] Cal. Rules of Court, R. 4.117.

[70] C.R.S.A. § 16-12-205.

[71] National Center for State Courts, Indigent Defense State Links, available at http://www.ncsc.org/Topics/Access-and-Fairness/Indigent-Defense/State-Links.aspx?cat=Capital%20Case%20Representation#New Hampshire.

[72] Wright v. Angelone , 644 F. Supp. 460, 462 (E.D.Va. 1996) (citing 28 U.S.C. §§ 2261, 2265).

[73] Daniel Silverman, Death Penalty System Broken, Philadelphia Inquirer, Feb. 5, 2015, available at http:/qqq/philly/com/philly/opinion/inquirer/20150105_Death-penatly_system_broker.html.

[75] E.g ., Yarborough v. Gentry , 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”)

[76] Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 at *33.

[77] Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics , 74 Geo. Wash. L. Rev. 1 (November 2005).

[78] Id . at 8, quoting Rush v. Cavenaugh , 2 Pa. 187, 189, 1845 Pa. LEXIS 306 (1845).

[79] In tracing the disappearance of this concept, they observe that Henry S. Drinker, in Legal Ethics at 145 & n.32 (1953) was the last treatise author to cite to Rush – and he did so as support for his conclusion that “[a] lawyer is not bound to give his client a moral lecture. He should advise what the law requires, but should not further any of the client’s unjust schemes, and should refuse to become a party to them.” Id .

[80] Zacharias and Green at 34.

[81] Id . at 51.

[82] Id . at 52-53.

[83] 11 Cap. U. L. Rev. 446 (1981-82).

[84] Id . at 454.

[85] Teague v. Lane , 489 U.S. 288, 407 (1989).

[86] Teague recognized exceptions for “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and “watershed rules of criminal procedure.” O’Dell v. Netherland , 521 U.S. 151, 311 (1997).

[87] O’Dell , 521 U.S. at 167.

[88] Beard v. Banks , 542 U.S. 406 (2004).

[89] See ABA Guideline 10.8 (stating that lawyer has duty to “consider all legal claims potentially available” in addition to “supplementing claims previously made with additional factual or legal information”); see also ABA Guideline 10.15.1 (stating that post-conviction counsel should “seek to litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation, including challenges to any overly restrictive procedural rules”).

[90] 2014 Pa. LEXIS 3558 at *68-69.

[91] Id . at *83-85.

[92] See Commonwealth v. Spotz , 99 A.3d 866, 916 (Pa. 2014) (post-decisional single justice opinion).

[93] While only one justice called for overruling the exception in Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 (Nov. 21, 2014), three did so in Commonwealth v. Blakeney , 2014 Pa. LEXIS 3517 (Pa. Dec. 29, 2014),

[94] See Senator Caroly McGinn, “Death Penalty Too Costly,” The Witchita Eagle , March 1, 2009, available at http://www.deathpenaltyinfo.org/new-voices-republican-senator-says-kansas-death-penalty-too-costly; Logan Carver, “Death Penalty Cases More Expensive than Lifetime Imprisonment, But Local CDA Says Cost Never a Consideration,” Lubbock Avalance-Journal, available at http://lubbockonline.com/stories/121309/loc_535156806.shtml .

[95] Arit John, A Botched Lethal Injection Won’t Change Anyone’s Mind About Capital Punishment (posted July 24, 2014), http://www.thewire.com/politics/2014/07/a-botched-lethal-injection-wont-change-anyones-mind-about-capital-punishment/375022 (discussing Chief Judge Alex Kozinski’s argument that to prevent executions from being cruel and unusual, a more efficient form of capital punishment, such as firing squads, should be employed).

[96] 536 U.S. 584 (2002)

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• Capital Punishment Debate Essay

A GUIDE TO WRITING A CAPITAL PUNISHMENT DEBATE ESSAY

Table of contents.

• Capital Punishment. Brief Definition and Explanation

The Debate. Capital Punishment Pros and Cons

Writing a capital punishment debate essay, examples of a capital punishment debate essay.

Also known as the death penalty, capital punishment is a government-sanctioned killing of a person who has committed a crime for which the punishment is death. These crimes are called “capital” acts and include such offenses as murder, mass murder, aggravated rape, treason, terrorism, spying, aircraft hijacking, actions to overthrow the government , and others, depending upon the country. 

Within the definition is the understanding that capital punishment only occurs following some type of judicial process in which the individual is given the death penalty. In the U.S., for example, it is the result of a court trial with the penalty imposed either by a jury or a judge.

Capital punishment only occurs following some type of judicial process in which the individual is given the death penalty

As for some capital punishment facts, here are a few stats:

• The death penalty is approved by about 55% of the adult U.S. population.
• Capital punishment in the U.S. is currently authorized in 29 states . Alternative punishments in other states are a life sentence without the possibility of parole.
• Lethal injection is the primary method of execution today, although a number of states do have alternatives when the drugs are not available or are considered to be unconstitutional because of the “cruel and unusual” nature of some of them. Alternatives may also be requested by the convict, including electrocution, gas, hanging, and firing squad.
• Among Western democracies, America is the only country that still has the death penalty .

Sample Capital Punishment Debate Essay

Writer144311.

Writer144311 has a background in marketing, technology, and business intelligence. S/he enjoys writing about data science, BI, new marketing trends and branding strategies. On TrustMyPaper s/he shares her practical experience through academic writing.

The capital punishment pros and cons have long been established and here are the most common ones that are used in arguing each side of this issue.

• It is a violation of human rights. No human has the right to take the life of another , except in extreme circumstances (war perhaps). The right to life, even if it is in prison, is basic.
• Social biases. The death penalty is given to the poor and minority groups more often than it is to white middle- and upper-class individuals. 
• Mistakes. Every year, convicted individuals are found to be innocent of their crimes and released. And, there have certainly been instances of the innocent being wrongly executed. The judicial system is not perfect.
• Convicted people who receive the death penalty are actually getting off a bit easier than those who must remain in prison, with the opportunity to think about their crimes and even to develop remorse and repentance. 
• Chance to reverse themselves. By receiving a life sentence without parole, the convict still has a chance to redeem themselves  and do good while he is in prison. 
• A “eye for an eye…” is in the Old Testament of the Bible. Giving a person the same punishment as they did to others is just retribution.
• It acts as a deterrent. People who know they might face the death penalty if caught are less likely to commit that crime . Everyone, even criminals, has a strong instinct to survive.
• Get to the root of evil and cut it out. Those who commit capital crimes must be put to death to get rid of their evilness once and for all. They cannot “infect” anyone else ever again.
• It is less expensive . It costs a lot of taxpayer money to keep someone in prison, and those tax dollars could be better spent elsewhere.
• Those serving time for less terrible crimes and prison staff are all safer if those convicted of capital crimes are executed.

Obviously, your essay will be of the argumentative type . This means you must take a stand and defend it with facts . At the same time, you must look at the other side’s arguments and do your best to refute them.

Your essay will involve research. For example, is capital punishment really a deterrent? Countries that have long abolished the death penalty have lower crime rates than those in the U.S. You need facts and figures, or your argument is worthless.

This essay could require more than the basic 3 body paragraphs. You may want to choose your three best arguments to present, and then choose the three best arguments that the opposing side presents, and refute them. This might require as much as 6 paragraphs unless you can present your side and the related opposition in one paragraph. 

Your introduction must contain your thesis statement – the position you are taking. The body paragraphs that follow will provide your points and refute the opposing side’s points. 

Plenty of examples of argumentative essays on the capital punishment debate are out there on the web. You can access these and see the arguments others have made, both in support of your position and in rebuttal of the other side. You may get some new or unique ideas – just be certain your essay is a unique, original piece of writing.

External links

• Chammah, M. (2018, January 4).  What to Know About the Death Penalty in 2018 . The Marshall Project; The Marshall Project. https://www.themarshallproject.org/2018/01/03/what-to-know-about-the-death-penalty-in-2018
• States and Capital Punishment . (2018). Ncsl.Org; National Conference of State Legislatures. http://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx
• Reality Check team. (2018, October 14). Death penalty: How many countries still have it?  BBC News . https://www.bbc.com/news/world-45835584
• Should There Be A Death Penalty? - The People Speak. (2015). [YouTube Video]. In  YouTube . https://www.youtube.com/watch?v=ka1B59ir1mI
• How to Write a Good Argumentative Essay: Logical Structure. (2009). [YouTube Video]. In  YouTube . https://www.youtube.com/watch?v=tAmgEa1B1vI

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Tennessee governor OKs bill allowing death penalty for child rape convictions

N ASHVILLE, Tenn. (AP) — Tennessee Gov. Bill Lee has approved legislation allowing the death penalty in child rape convictions, a change the Republican-controlled Statehouse championed amid concerns that the U.S. Supreme Court has banned capital punishment in such cases.

Lee, a Republican, quietly signed off on the legislation last week without issuing a statement.

The new Tennessee law, which goes into effect July 1, authorizes the state to pursue capital punishment when an adult is convicted of aggravated rape of a child. Those convicted could be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life.

Florida’s Gov. Ron DeSantis enacted a similar bill nearly a year ago. A few months after being enacted, Florida prosecutors in Lake County announced in December that they were pursuing the death penalty for a man accused of committing sexual battery of a minor under the age of twelve. According to the Death Penalty Information Center, the case is considered the first to be pursued under the new law.

Meanwhile, Idaho's GOP-controlled House approved similar legislation earlier this year, but the proposal eventually stalled in the similarly Republican-dominated Senate.

While many supporters of Tennessee's version have conceded that even though the Volunteer State previously allowed convicted child rapists to face the death penalty, the Supreme Court ultimately nullified that law with its 2008 decision deeming it unconstitutional to use capital punishment in child sexual battery cases.

However, they hope the conservative-controlled U.S. Supreme Court will reverse that ruling — pointing to the decades long effort that it took to overturn Roe v. Wade , the landmark 1973 case that legalized abortion nationwide but was eventually overruled in 2022.

“Maybe the atmosphere is different on the Supreme Court,” said Republican Sen. Janice Bowling last month while debating in favor of the law. “We’re simply challenging a ruling.”

Democratic lawmakers and child advocates worry that the law may instill more fear into child rape victims that speaking out could potentially result in an execution, warning that many children are abused by family members and close friends. Others have alleged that predators could be incentivized to kill their victims in order to avoid a harsher punishment.

Execution law in the U.S. dictates that crimes must involve a victim’s death or treason against the government to be eligible for the death penalty. The Supreme Court ruled nearly 40 years ago that execution is too harsh a punishment for sexual assault, and justices made a similar decision in 2008 in a case involving the rape of a child.

Currently, all executions in Tennessee are on hold as state officials review changes to its lethal injection process. Gov. Lee issued the pause after a blistering 2022 report detailed multiple flaws in how Tennessee inmates were put to death.

No timeline has been provided on when those changes will be completed.

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FTX Customers Poised to Recover All Funds Lost in Collapse

Bankruptcy lawyers for FTX said customers of the cryptocurrency exchange were set to get all their money back, plus interest.

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By David Yaffe-Bellany

Reporting from San Francisco

Customers of the failed cryptocurrency exchange FTX are poised to recover all of the money they lost when the firm collapsed in 2022 and receive interest on top of it, the company’s bankruptcy lawyers said on Tuesday.

The announcement was a landmark in the attempt to track down the $8 billion in customer assets that disappeared when FTX imploded virtually overnight , setting off a crisis in the crypto industry. Under a plan filed in federal bankruptcy court in Delaware, virtually all FTX’s creditors, including hundreds of thousands of ordinary investors who used the exchange to buy and sell cryptocurrencies, would receive cash payments equivalent to 118 percent of the assets they had stored on FTX, the lawyers said.

Those payments would flow from a pool of assets that FTX’s lawyers have pulled together in the 17 months since the exchange collapsed, the lawyers said. They tapped a wide range of sources, including digital currencies that FTX still owned when it filed for bankruptcy and company assets like shares in start-ups, which could be sold to bidders.

The amount that FTX recovered is “in general pretty unheard of,” said Yesha Yadav, a law professor at Vanderbilt University. “That’s something that is really quite astonishing for a major bankruptcy.”

The plan comes with a caveat. The amount owed to customers was based on the value of their holdings at the time of FTX’s bankruptcy in November 2022. That means customers won’t reap the benefits of a recent surge in the crypto market that sent the price of Bitcoin to a record high . A customer who lost one Bitcoin when FTX imploded, for example, would be entitled to less than $20,000, even though a Bitcoin is now worth more than $60,000.

It will take months for the payouts to begin. The plan requires approval by the federal judge overseeing FTX’s bankruptcy, John T. Dorsey. If creditors raise any objections to the plan, that could extend the timeline.

“The timing of recovery is still a big question mark,” said Matthew Sedigh, the chief executive of Xclaim, a platform for creditors to trade bankruptcy claims. “Even if the recovery amount is better than expected, collecting these amounts two years from now is kind of a slap in the face.”

Still, it seemed unlikely that customers would get their money back when FTX collapsed. Before its implosion, customers used the exchange as a marketplace to buy and sell digital currencies and stored billions of dollars in crypto on the platform.

After FTX failed, its founder and chief executive, Sam Bankman-Fried, stepped down, handing control to John J. Ray III, a veteran of corporate turnarounds who oversaw the unwinding of Enron, the energy company that collapsed in 2001.

Mr. Bankman-Fried was later convicted of a sweeping fraud in which he siphoned billions of dollars in FTX customer savings to finance venture investments, political donations and other spending. He was sentenced in March to 25 years in prison.

After he took over, Mr. Ray described the cryptocurrency exchange as the biggest mess he had ever seen. Over the next few months, he and his team began the painstaking process of tracking down the missing assets.

Some of the recoveries stemmed from successful investments that Mr. Bankman-Fried made during his FTX tenure. In 2021, the company had put $500 million into the artificial intelligence company Anthropic. A boom in the A.I. industry made those shares much more valuable. This year, Mr. Ray’s team sold about two-thirds of FTX’s stake in Anthropic for $884 million.

FTX also reached a deal to recoup more than $400 million from Modulo Capital , a hedge fund that Mr. Bankman-Fried had financed. And lawyers for FTX filed lawsuits to claw back funds from former company executives and others, including Mr. Bankman-Fried’s parents .

Crypto experts have for months expected significant recoveries in the FTX bankruptcy. Some opportunistic investors have bought bankruptcy claims from the exchange’s customers for pennies on the dollar, hoping to profit when the payouts begin. And when he was sentenced, Mr. Bankman-Fried’s lawyers said he should receive a lighter punishment because FTX’s customers were likely to get their deposits back. A judge rejected that argument.

The speed of the recoveries in the FTX case is unusual for a bankruptcy. In the Enron case, for example, it took about three years for a bankruptcy plan to be approved, and many more years for funds to be distributed to creditors, the FTX lawyers wrote in the court filing on Tuesday.

The FTX bankruptcy has “proceeded with remarkable alacrity given the challenges faced,” the filing said.

The bankruptcy has also been highly profitable for the lawyers working on it. As of last fall, the law firm Sullivan & Cromwell and other experts overseeing the FTX case had charged more than $320 million in fees.

“The lawyers have made an absolute killing on this,” Ms. Yadav said. “This is a huge bonanza for the crypto lawyers.”

David Yaffe-Bellany writes about the crypto industry from San Francisco. He can be reached at [email protected]. More about David Yaffe-Bellany

Inside the World of Cryptocurrencies

Customers of the failed cryptocurrency exchange FTX are poised to recover all of the money they lost  when the firm collapsed in 2022 and receive interest on top of it, the company’s bankruptcy lawyers said.

Changpeng Zhao , the billionaire founder of the giant cryptocurrency exchange Binance, was sentenced to four months in prison , a much lighter penalty than other crypto executives have faced since the industry imploded in 2022.

Two years after the cryptocurrency market crashed, there are signs that crypto is booming again in the Philippines , long a center of crypto activity.

Pushed by a nonprofit with ties to the Trump administration, Arkansas became the first state to shield noisy cryptocurrency operators from unhappy neighbors. A furious backlash has some lawmakers considering a statewide ban .

Ben Armstrong, better known as BitBoy, was once the most popular cryptocurrency YouTuber in the world. Then his empire collapsed .