The origins of the death penalty in the United States date back to 1608 when Captain George Kendall was executed by firing squad in the Jamestown colony of Virginia for being a spy. Since that time, more than 14,000 people have been legally executed.
In 1972, the outcome of Furman v. Georgia put a nationwide moratorium on the practice of capital punishment in the United States. Three years later, however, Gregg v. Georgia gave states the right to reinstate the death penalty upon fulfillment of certain conditions. In the 46 years since that ruling, a number of cases have challenged the use of capital punishment, but it has been upheld by the Supreme Court allowing for the execution of over 1,500 people since 1976.
In modern times, the use of capital punishment may be employed in cases of homicide, and possibly treason or espionage. Lethal injection is the primary method used in 29 states with authorized executions. A secondary method may be used in 16 of those states if the former is unavailable or found unconstitutional, and in some cases, if the prisoner requests alternate means. These may include electrocution, firing squad, lethal gas, nitrogen hypoxia, or hanging.
In the article that follows, Dr. Jeffery Ulmer generously lent his expertise to our exploration of the ethics of this controversial practice.
Dr. Jeffery T. Ulmer is a professor of sociology and criminology at Pennsylvania State University Dr. Ulmer studies the sociology of criminal punishment with a focus on inequalities in criminal sentencing, especially race and ethnic disparity as well as the effect of social contexts on local courts and sentencing.
In addition to his teaching and research activities, Dr. Ulmer has a prolific record of scholarly publications. His most recent works, articles published in Criminology and Public Policy and in Justice Quarterly in 2020, deal with racial and also contextual (or geographic) disparity in Pennsylvania’s death penalty.
Proponents of the death penalty adhere to two main arguments: deterrence and retribution.
Deterrence is the claim that the death penalty saves lives. Marginal deterrence is what is most often referred to in debates on capital punishment. Dr. Ulmer explained that marginal deterrence tells us, “If you have the death penalty, does that give you more deterrence of homicides than life without parole? The answer is marginal, more than or less than.” Absolute deterrence, on the other hand, “refers to whether the death penalty deters anybody anywhere,” he clarified.
The second main argument, retribution, deals with moral deservedness. The famous line from Gilbert and Sullivan’s 1885 Victorian English comedy, The Mikado, “Let the punishment fit the crime” is apropos here. The retribution stance stems from the belief in getting one’s “just deserts” or taking “an eye for an eye” in the sentencing of homicide convictions.
Opponents of the death penalty have several angles.
First is the issue of wrongful conviction, and thus, potentially wrongful execution. One hundred eighty-five death row prisoners have been exonerated since 1973 due to wrongful convictions.
And though it is impossible to know the number of wrongful executions throughout history, the Death Penalty Information Center has published a list of 20 cases of executions within the last 40 years with strong evidence of innocence.
Second is the concern of mental illness and cognitive disability among those sentenced to death—the rates of which are very high among the death row populations. Resolution 122A of The American Bar Association, passed in 2006, exempts individuals with severe mental illness from the death penalty. Similar resolutions are endorsed by the National Alliance for the Mentally Ill, the American Psychiatric Association, and the American Psychological Association. This came into play in the recent overturning of the capital sentence of Raymond Riles, the longest-serving death row prisoner, sentenced in 1976 by the Texas Appeals Court.
And third is the argument of inequality in capital punishment, which highlights disparities related to race and ethnicity, socioeconomics, and geography.
As revealed above, there are philosophical arguments, or moral absolutes, as well as arguments that can be substantiated with evidence from social science research on both sides of the capital punishment debate.
Moral absolutes are rooted in moral, ethical, and philosophical belief systems. Some are rooted in religious doctrine; others stem from individually-held values from a variety of sources.
From a social science perspective, however, an argument, whether for or against capital punishment, needs to be measurable.
A moral absolute on the pro side is the concept of retribution (moral deservedness) and absolute deterrence (even if one person is deterred from murder, the death penalty is justified).
And on the con side, the belief that we should not take life, as ascribed by the Catholic Church, as well as those with other or no religious affiliation. This is also a moral absolute: a belief with moral/ethical value for those that hold them, but which cannot be measured.
A measurable claim on the pro side is the argument of marginal deterrence (i.e., are there more or fewer homicides in areas with the death penalty vs. life without parole?), and on the con side, mental illness (i.e., how many prisoners sentenced to death suffer from severe mental illness?).
Both can be measured. Sometimes, however, the lines become blurred.
Some issues lay at the intersection of these concepts. On the proponent’s side, the deterrence argument contains both the measurable and the moral absolute. And on the opponent’s side, Dr. Ulmer explained that the issue of inequality is “another intersection of the scientific, the evidence-based, and the ethical.”
So what does the evidence say?
A social scientist, Dr. Ulmer studies what the research reveals about criminal behavior and sentencing in the United States. He explained, “In principle, the deterrence argument is testable. Right? You can see, does it deter crime?”
There is a large [body of] literature on whether the death penalty deters crime as a marginal general deterrent. The National Academy of Sciences actually put out a report in 2012, assessing the general state of the death penalty deterrence literature…and the conclusion they [came] to is, it’s indeterminate…there’s no strong evidence…there’s no definitive evidence that the death penalty is a deterrent to homicides.
But it hasn’t been completely disproven either and, in principle, you still could find that it could deter…but that wasn’t exactly a ringing endorsement of the deterrence idea.
But then, proponents can fall back on this other kind of untestable, absolute deterrence argument, and say, well, absolute deterrence is, “Does this deter anybody anywhere? Does the existence of it prevent some unknown, unmeasurable number of murders?” That, we’ll never know, but if it’s any, that’s absolute deterrence.
Could the same morally absolute thinking be applied to the idea of wrongful conviction? That if there is a chance of even one innocent person being put to death, then the practice is ethically wrong and should be abolished?
Dr. Ulmer’s research is especially focused on issues of inequality in criminal sentencing. As mentioned above, there are three areas of particular concern here: race and ethnicity, socioeconomics, and geography.
With regard to race and ethnicity as a predictor of death sentencing, the “white victim effect” is found in most studies in this area:
The killing of white victims seems to produce more seeking of the death penalty by prosecutors and more death sentences than the killing of Black victims, in many studies, regardless of what race the defendant is.
So the race and ethnicity of the victim can be used as a predictor of death sentencing in homicide cases.
While the connection of socioeconomics to crime rates is not a new finding in the literature, the intersection of the three—race and ethnicity, socioeconomics, and geography—paints a lesser-known picture. According to Dr. Ulmer, what the research reveals with regards to socioeconomics is that,
The biggest predictor of homicide rates is region…concentrated socioeconomic disadvantage…the more poverty, unemployment, and racial segregation and isolation you have in a given city, state, or county, the higher the homicide rate will be. Economics is at play in the production of murders.
And with a nod to the work of public defenders and court-appointed lawyers, Dr. Ulmer pointed out that, “The whole criminal justice system can work differently if you have resources.”
It is the question of geography, also referred to as context, that Dr. Ulmer insists is “not a bug, but a feature” of the U.S. criminal justice system:
Going back to Furman, central was inequalities and how the inequalities produce an arbitrariness to the death penalty, a capriciousness. Justice Stuart likened it to being struck by lightning…Justice Breyer said, “It’s cruel and unusual in the way that getting struck by lightning is cruel and unusual because it’s so random. It’s so arbitrary.
This gets at the issue of geographical disparity. Where you are shapes your chances of being sentenced to death—not just the fact of whether you’re in a state with the death penalty but what county you’re tried in within that state. This arbitrariness and capriciousness—the exact terms that were used in the Furman decision—reveal a geographic disparity that creates major ethical problems for the use of the death penalty.
But on the other side, Justice Thomas wrote that local criminal justice courts have the prerogative to punish crime according to local standards. He argued that if a locale finds a certain crime so heinous, they should be able to sentence it in the most severe way. Who are we to stop them?
Dr. Ulmer’s response: “Like I said, it’s not a bug, it’s a feature. [Arbitrariness] comes with local control over sentencing.” He added, “If there are inequalities, what are the ethics of executing people or sentencing people to death in an unequal and arbitrary manner?”
Something important to know about capital punishment is that there is a historical lack of follow-through. This might sound like good luck for those sentenced to death. However, the practice raises some ethical concerns.
Although the death penalty is used in sentencing, it is rare for a person to actually be executed. This has been historically the case in states like Pennsylvania and California, especially. For various reasons, defendants have been sentenced to death but never executed. Why? Dr. Ulmer explained,
Sometimes it’s because no governor wants to sign a death warrant; other times, like in Pennsylvania, it’s really due to the Federal Circuit that we’re in and their willingness to let executions proceed in terms of appeals. They’re very, very cautious.
In fact, Pennsylvania hasn’t executed anyone since 1999, and that was a voluntary execution. This means that the person gave up their right to appeal, essentially saying, “I don’t want to fight this anymore, I want to be executed,” Dr. Ulmer said.
There hasn’t been an involuntary execution—someone convicted, sentenced, and actually put to death—in Pennsylvania since 1963. What this means is that people are sentenced to death but not executed for years—if ever. Essentially, this boils down to serving a life sentence on death row.
So, what are the ethical implications of keeping people on death row indefinitely? Dr. Ulmer continued:
It’s a years- or even decades-long punishment [with] this thing hanging over your head. Plus, you are living in the conditions of death row, which is typically a 23-hour lockdown. Very limited visitation. Isolated to a very small cell. Limited materials to read…[it] depends on the state but conditions on death row are much more restricted than the general prison population.
Considering this and with regard to the retribution argument, perhaps the question becomes: Is a capital sentence (i.e., being sentenced to death row) proportional to the crime?
Any way we look at it, the practice of criminal execution warrants serious thought and deliberation.
Cevia Yellin is a freelance writer based in Eugene, Oregon. She studied English and French literature as an undergraduate. After serving two years as an AmeriCorps volunteer, she earned her master of arts in teaching English to speakers of other languages. Cevia's travels and experiences working with students of diverse linguistic and cultural backgrounds have contributed to her interest in the forces that shape identity. She grew up on the edge of Philadelphia, where her mom still lives in her childhood home.