The death penalty, i.e., “capital punishment,” is a subject of constant debate. Some people believe that it’s a necessary tool to ensure justice or deter crime, while others believe it to be brutal and inhumane, as well as inefficient.
No matter where you stand on the issue, it's essential to understand what capital punishment is and the history behind it, as it is very much a real part of many justice systems worldwide. In this blog post, we will explore the definition of capital punishment, as well as its history and various forms, answer the question “What is capital punishment?” from the perspective of criminal law, and see how it’s implemented in the US.
Capital Punishment: Definition
The death penalty is a legal punitive measure in which a person is sentenced to death by the state as retribution for their crimes. The Latin origin of the word “capital” is caput, which means head; as you may have guessed, this stems from the fact that capital punishment originally referred to execution by beheading.
Over time, the definition of capital punishment has changed and evolved. In some cases, it’s used as a punishment for capital crimes, such as terrorism, espionage, treason, and drug trafficking. It can also be used to eliminate people who are seen as a threat to society (by that specific society) and are therefore considered too dangerous to be kept alive.
Capital Punishment Throughout History
The first record of legislation that includes capital punishment was in the 18th century BC, in ancient Babylon under King Hammurabi. The Code of Hammurabi, the best-preserved legal text from the ancient Near East, had the death penalty as punishment for 25 different crimes.
Talion or lex talionis in Latin was a principle first present in the Code of Hammurabi and later in early Roman and Biblical laws. It’s most famous for the “an eye for an eye, a tooth for a tooth, a life for a life” saying. This principle is the basis of a retributive justice approach and is meant to ensure that punishment is proportional to the crime, not lesser, but not greater, either.
An extreme example of laws incorporating capital punishment can be found in ancient Greece. In 621 BC, the governing aristocrats of Athens authorized Draco, a lawgiver, to write the Athens code of law. Literate Athenians could read the law publicly at central locations, marking one of the most important steps towards Athenian democracy.
In modern times, the word “Draconian” is synonymous with cruel and overly strict laws, measures, and punishment. This is because, under Draco’s laws, even minor infractions (e.g., stealing an apple) were punishable by death. According to Plutarch, Draco’s opinion was that even people who committed petty crimes were appropriately sentenced to capital punishment. As there was no harsher penalty than death, the punishments plateaued for relatively benign and much more significant crimes. In other words, the punishment didn’t deter serious crimes, as the same result could be achieved by much smaller offenses.
On the other hand, in ancient Rome, not everything could be a capital offense. Just like the elements of a crime factor into its sentence today, most crimes in Rome merited alternative methods of punishment. It wasn’t uncommon for a criminal to be reprimanded publicly or privately, exiled, have their property confiscated, tortured, or imprisoned. The death penalty was used as a last resort, unless you were a foreigner or an enslaved person. As you may have assumed, non-Romans were significantly more disadvantaged and were therefore executed much more often.
The answer to the question “What is a capital offense?” differed and differs still depending on both state and religion. For example, according to the Quran and Islamic law, crimes such as apostasy of Islam, robbery, and adultery are capital offenses. It’s interesting to note that murder isn’t one of these crimes; instead, killing someone is seen as a civil crime, where the victim’s relatives define if capital punishment is appropriate or diyah, monetary compensation, should be paid in exchange.
Over in Europe, the death penalty was first implemented in Britain in the Anglo-Saxon era and continued to the 20th century. The punishment for a capital offense was primarily beheading, but there were other methods of execution as well, such as hanging, drawing and quartering, or burning at the stake.
However, people weren’t necessarily executed if they committed a capital offense. More often than not, people were exiled to America or Australia. This was primarily because there was no established judicial system, and it was difficult to prove a person’s guilt.
In the UK, executions were public events that attracted large crowds. The offenders were most often left on display for long periods. However, in 1868, The Capital Punishment Amendment Act was passed in the UK, which abolished public executions. Comparatively, public executions were still a thing until the nineteen-thirties.
Almost a hundred years later, the UK Capital Punishment Amendment Act was repealed in 1965 and replaced by the Murder (Abolition of Death Penalty) Act. This act abolished the death penalty for murder in the UK; however, other offenses, such as treason, could still be punished with execution until that too was banned in 1998.
Capital Punishment in the US
English colonies in North America were no strangers to implementing the death penalty for all sorts of crimes, be they severe or not.
So, what was capital punishment like in the colonies? In 17th century Virginia, according to “Lawes Divine, Morall and Martiall,” a set of rules and regulations issued by the Virginia Company of London that settled and managed the colony, many instances were deserving of severe punishment. That is to say, the capital offense definition was fairly broad: It included blasphemy, treasonous words, criticizing the company, trading with natives without authorization, false witnessing, robbery, and other crimes that were treated as seriously as murder.
In the 19th century, many Americans started to object to the death penalty. In 1845, Michigan was the first state that abolished it, and Wisconsin didn’t have capital punishment in its statute when it entered the Union in 1848.
After World War II, even more people started opposing the death penalty and its meaning in a post-war society, especially after so much killing during the war. Canada and Western European countries stopped using capital punishment, while the US remains the last Western democracy with the death penalty.
Another interesting fact about the death penalty in the US is that it was banned for a short while. In 1972, the US Supreme Court named it a “cruel and unusual punishment” and restricted its use. However, just four years later, the same court lifted this moratorium on the death penalty. Since then, there have been more than 1,600 executions. However, there has been a decline in the number of death sentences handed down in recent years. This may be due to the increasing use of life imprisonment without parole as a sentence and the difficulty in obtaining lethal injection drugs.
What is capital punishment like nowadays in the US? The practice remains authorized in 27 states. Between 2009 and 2021, seven states (New Mexico, Illinois, Virginia, Maryland, Connecticut, New Hampshire, and Colorado) have officially abolished the death penalty. Capital punishment was replaced with sentencing to life imprisonment without the possibility for parole. Nebraska also abolished the death penalty in 2015, only to reinstate it in 2016 through a statewide voting process.
Another issue with the death penalty is inadequate representation. Defendants who can’t afford a lawyer - i.e., most defendants accused of serious crimes - have a public defender assigned to them. Public defenders are, as a rule, overworked and underpaid, which makes it hard for them to prepare for court and mount a quality defense.
Death Row Definition
You may have heard of the expression “death row” before. So, what is death row, and how does it relate to those condemned for capital crimes?
The term is used to describe the area in a prison where condemned inmates are held awaiting execution. It’s also referred to as “the row” or “execution row.” Inmates on death row are typically kept in solitary confinement and have little contact with the outside world. They are usually given a small cell with a bed, toilet, and sink. Some states have death row inmates wearing unique uniforms to distinguish them from other prisoners.
Death row conditions vary from state to state, but they are all extremely restrictive. Inmates are typically only allowed out of their cells for showers, exercise, and visits. They eat all of their meals in their cells, and most states do not allow them to have televisions or radios. Some inmates are allowed to have books, but they are typically subject to censorship by prison officials.
As of January 1, more than 2,400 people were in prison on death row in the US. This number changes based on appeals, convictions, and execution of capital punishment.
Methods of Execution
The most common method of execution in the US is lethal injection. It was first used in Texas in 1982 and has since become the primary method of execution in all but four states. As of January 2021, 20 states use lethal injection as their only method of execution, and one state uses it as an option if the inmate chooses it over electrocution.
Other methods of execution used in the US include:
- Electrocution: This method was first used in 1890 and is still an option in eight states.
- Gas Chamber: This method was first used in Arizona in 1933 and is no longer an option in any state.
- Firing Squad: This method was first used in Utah in 1977 and is still an option in four states.
- Hanging: This method was first used in Washington in 1904 and is still an option in three states.
Arguments Against Capital Punishment
Moral arguments against capital punishment typically focus on the idea that it is wrong to take a human life, regardless of the crimes committed. Some people also argue that the death penalty is cruel and unusual punishment and violates the US Constitution's Eighth Amendment. Finally, there are some very practical arguments to be made against capital punishment, and we’ll discuss them, too.
So what is the death penalty, according to organizations that try to abolish it? Amnesty International sees capital punishment as cruel, inhuman, and degrading, and opposes it without exceptions. The UN's Universal Declaration of Human Rights, adopted in 1948, protects human rights, including the right to life, a life free of torture, and cruel, inhuman, and degrading punishment or treatment.
Practical arguments against capital punishment typically focus on the idea that it is not an effective deterrent against crime. There is no correlation between crime rates and the existence of capital punishment in a given US state, for example. What’s more, capital punishment is expensive, because the appeals process necessary to prevent wrongful death is extremely long (rightfully so), and the materials required are expensive, as well.
In addition to these general arguments, there are also specific ones against capital punishment for certain crimes. Worldwide, there are instances where juveniles or those with mental disabilities are subject to capital punishment.
Arguments for Capital Punishment
Arguments for capital punishment typically focus on the idea that it is a deterrent against crime. Some people also argue that it is an effective way to remove dangerous criminals from society. Unfortunately for this side of the debate, the statistics do not support this view.
Supporters of the death penalty also argue that it is a just punishment for heinous crimes. They believe that those who commit murder, rape, terrorism, mass murder, and other abhorrent crimes should be put to death to serve as an example to others and as a form of retribution for the loved ones of those wronged by the crimes.
Historically, capital punishments were supported by religious authorities. Nowadays, there is no consensus among different religions on sects within them, and representatives from major religions such as Roman Catholicism and Judaism have actively campaigned against it.
Current State of the Death Penalty in the World
What does capital punishment mean in the current day and age? Why is it still practiced if it’s not an effective deterrent for crimes? Are there other underlying issues that countries could address to lower crime rates instead? Criminology, as opposed to criminal justice, believes it to be so. In fact, 88% of criminologists refute the death penalty’s validity as a crime deterrent.
According to Amnesty International, by the end of 2020, 144 countries had dismissed the practice of capital punishment from their legislation. Another 28 hadn’t implemented the death penalty in more than 10 years.
Countries such as China, Egypt, Iran, Iraq, and Saudi Arabia had the most executions in 2020. Furthermore, 55 countries still use the death penalty for crimes that wouldn’t be considered major elsewhere.