Criminal justice & punishment
Is It Ever Justifiable for a State to Use the Death Penalty?
LNAT Section B · Model essay
The essay prompt
Can a state ever be justified in putting convicted criminals to death? If capital punishment can be defended at all, which offences (if any) should it be reserved for?
The stance
No. A state bound by dignity, equality and the rule of law cannot administer capital punishment without violating at least one of them, and the wrong is irreversible. Even for the gravest atrocity crimes the answer is the same: the penalty should be reserved for no offences at all.
Defining the terms
- "Justifiable" means defensible in law and political morality once tested against constitutional fundamentals (the right to life, dignity, equality, due process), rule-of-law limits (non-arbitrariness, error-correction) and legitimate penal aims under a proportionality test.
- "The death penalty" means a judicially imposed and carried-out sentence of death following conviction. It is not extra-judicial killing, nor self-defence or the use of force in armed conflict.
- "A state" means a constitutional polity already bound by domestic and international law (the ECHR, the ICCPR), not an imagined infallible authority that never errs.
- "Which crimes" frames the strongest case for retention. The hardest candidates are genocide, mass-casualty terrorism and crimes against humanity, so the essay tests those and still concludes none.
Assumptions to interrogate
- That there is some penal aim (deterrence, retribution, incapacitation, denunciation) which only execution can secure, so that killing is genuinely necessary rather than merely available.
- That a human justice system can reliably pick out the "worst of the worst" without unacceptable error, bias or arbitrariness.
- That dignity and equality before the law can tolerate an exception for sufficiently grave crimes.
- That a state can retain capital punishment while remaining a full and legitimate member of the international legal order.
The case for
Retributive desert: the gravest crimes deserve the gravest punishment.
On a lex talionis view, a person who tortures and murders, or who orchestrates genocide, forfeits a like claim to life. Anything less than death, the argument runs, fails to mark the wrong as uniquely grave and insults the victims. This is the strongest moral case, and it is why retention persists even in functioning democracies.
Deterrence and incapacitation: execution may save future lives.
If even a marginal deterrent effect exists, the lives saved arguably outweigh the offender's. Execution also guarantees the offender can never kill again, in or out of prison. For terrorism and serial killing, retentionists say the expected cost of death may discourage at least some offenders where a life sentence does not.
Democratic sovereignty: a people may choose its own ceiling of punishment.
Abolition can be cast as elite or foreign imposition. A democratic majority that, after due deliberation, wants death available for atrocity arguably has the legitimacy to set that policy for itself, and dignity may be culturally contested rather than universal.
The case against
Dignity is a trump: the state may condemn, but not annihilate.
Post-1945 constitutionalism treats the right to life and human dignity as non-derogable. In S v Makwanyane the South African Constitutional Court held the death penalty unconstitutional precisely because dignity and life outweigh retribution. The state's answer to atrocity must itself be non-atrocious; like-for-like killing confuses condemnation with imitation.
Irreversibility plus fallibility: the only tolerable error rate is zero, and no system reaches it.
Every justice system convicts the innocent through false confessions, flawed forensics and weak defence. More than 200 people have been exonerated from US death rows since 1973. A prison sentence can be undone; an execution cannot. Where the acceptable margin of error is nil and the system cannot deliver it, the penalty is indefensible.
Arbitrariness and inequality: who dies tracks race, wealth and geography, not desert.
The Baldus study in McCleskey v Kemp showed defendants who killed white victims were over four times more likely to be sentenced to death. The Court conceded the disparity yet declined relief. A punishment reserved for the worst is not justifiable if who counts as worst is sorted by illegitimate factors.
Penal necessity fails: nothing is gained over a whole-life sentence.
The US National Research Council found the deterrence evidence simply uninformative. Incapacitation is fully achieved by life imprisonment, and denunciation by long sentences, which is why the International Criminal Court condemns genocide without ever killing. If death adds no unique gain, proportionality's necessity test is failed.
The argument, step by step
- Define "justifiable" against the constraints a real constitutional state actually accepts (dignity, equality, due process, proportionality) and declare the abolitionist stance.
- Establish the deontic bar first: dignity forbids state killing even if every other objection were answered, so the case cannot be rescued by better procedure alone (Makwanyane; ECHR Protocol 13).
- Add the rule-of-law objections: irreversibility makes the tolerable error rate zero, and no fallible system reaches it; selection is arbitrary and discriminatory (exonerations; McCleskey).
- Meet the consequentialist case head-on: deterrence is unproven, incapacitation and denunciation are met by life sentences, so necessity fails (NRC; ICC practice).
- Stress-test the strongest retentionist ground, the "atrocity exception", and show the very tribunals built for genocide deliberately exclude death.
- Bring in comparative law: the UK, Canada and the whole Council of Europe have abolished, and Canada in Burns and the ECtHR in Soering refuse even to extradite into a death-penalty risk.
- Conclude: the penalty should be reserved for no crime, because abolition is the only position a dignity-bound, error-prone, legitimacy-seeking state can coherently hold.
The model plan
Stance up front: never justifiable, no crimes. Intro (~90 words): define "justifiable" against the constraints a constitutional state accepts, declare abolition, signpost four grounds plus the atrocity stress-test. Para 1 - dignity (deontic bar): Makwanyane and ECHR Protocol 13; the state may condemn but not annihilate; rebut retributive desert by noting the ICC denounces genocide without killing. Para 2 - irreversibility and error: 200-plus US exonerations; life is correctable, death is not; the only acceptable error rate is zero and no system delivers it. Para 3 - arbitrariness: McCleskey and the Baldus 4.3x figure; who dies tracks race and money, so the "worst of the worst" is a fiction. Para 4 - penal necessity fails: NRC deterrence verdict; life imprisonment incapacitates and denounces; necessity prong of proportionality unmet. Atrocity stress-test plus comparative: ICC, ICTY and ICTR exclude death by design; UK abolished (1965/1969), Canada abolished and in Burns refused extradition without assurances, the ECtHR in Soering bars surrender into the death-row phenomenon. Conclusion (~70 words): on every ground the penalty fails; reserved for no crime; abolition is the only coherent constitutional position.
The model essay
Whether the death penalty is ever justifiable should be tested not against an imaginary infallible authority but against the constraints a real constitutional state already accepts: the right to life, equality before the law, due process, and proportionality. Tested that way, capital punishment fails at every level, and it fails even for the gravest crimes. My answer is that it is never justifiable and should be reserved for no offence at all.
The first objection is categorical. Post-war constitutionalism treats human dignity and the right to life as trumps over state utility. In S v Makwanyane the South African Constitutional Court struck down the death penalty precisely because dignity and life outweigh the appetite for retribution. A state may restrain, condemn and denounce an offender; it may not annihilate a rights-bearer. The retributive reply, that the gravest wrong demands a like response, mistakes vengeance for justice: the International Criminal Court denounces genocide itself without ever killing, which shows that condemnation does not require imitation. Proportionality is a limit on punishment, not a licence for it.
Even setting dignity aside, the rule of law bars execution. Every justice system convicts the innocent through false confessions, flawed forensics and poor defence, and more than two hundred people have been exonerated from American death rows since 1973. A prison term can be undone; an execution cannot. Where the only tolerable error rate is zero and no human system reaches it, the irreversibility of death is decisive. Worse, selection is not random but patterned: the Baldus study in McCleskey v Kemp found defendants who killed white victims were over four times more likely to be sentenced to death, a disparity the Court acknowledged yet refused to remedy. A punishment supposedly reserved for the worst cannot be justified when who counts as worst tracks race, wealth and geography.
The consequentialist defence fares no better on its own terms. The United States National Research Council concluded that the evidence on deterrence is simply uninformative, neither proving nor disproving an effect. Incapacitation is fully secured by life imprisonment, and denunciation by long sentences, so death achieves nothing unique. Proportionality's necessity requirement, that the state use the least drastic means adequate to its aim, is therefore unmet.
The hardest case is atrocity: genocide and mass-casualty terrorism. Yet the very institutions built to try those crimes, the ICC and the tribunals for the former Yugoslavia and Rwanda, exclude the death penalty by deliberate design, capping punishment at life imprisonment under Article 77 of the Rome Statute. The international community has already rehearsed the worst crimes imaginable and chosen not to kill. Comparative practice confirms the trajectory. The United Kingdom abolished capital punishment for murder in 1965 and permanently in 1969; the entire Council of Europe has done so under Protocol 13 to the ECHR. Canada abolished it and, in United States v Burns, refused to extradite even suspected murderers to face death without assurances, holding unconditional surrender contrary to the Charter. In Soering v United Kingdom the European Court reached the same result, barring extradition into the death-row phenomenon. Retention now isolates a state from the cooperation that effective prosecution depends on.
The retentionist may invoke democratic sovereignty, but sovereignty is no trump against norms that, like the prohibition on torture, bind regardless of local preference; and a self-isolating policy that obstructs extradition and evidence-sharing is self-defeating. On dignity it is a deontic wrong, on fallibility an irreversible gamble, on equality a discriminatory lottery, and on necessity a redundancy. The death penalty is never justifiable, and the only coherent answer to which crimes it should cover is none.
Authorities worth knowing
S v Makwanyane and Another
[1995] ZACC 3; 1995 (3) SA 391 (CC) (South Africa, Constitutional Court)
The death penalty is unconstitutional: the rights to life and human dignity outweigh retribution, and the state's response to crime must itself respect dignity.
Soering v United Kingdom
(1989) 11 EHRR 439, App no 14038/88 (ECtHR, 7 July 1989)
Extradition that would expose a person to the death-row phenomenon engages Article 3 ECHR (inhuman or degrading treatment) and can be barred, even where the death itself would occur outside the Convention's jurisdiction.
McCleskey v Kemp
481 U.S. 279 (1987) (United States Supreme Court)
Statistical evidence (the Baldus study) of racial disparity in capital sentencing was accepted yet held not to invalidate a death sentence, exposing the system's tolerance of patterned arbitrariness.
United States v Burns
[2001] 1 SCR 283, 2001 SCC 7 (Supreme Court of Canada)
Extraditing a person to face the death penalty without assurances against its imposition breaches section 7 of the Canadian Charter and cannot be justified under section 1.
Rome Statute of the International Criminal Court, Article 77
2187 UNTS 90 (1998), in force 1 July 2002
The maximum penalty the ICC may impose, even for genocide and crimes against humanity, is life imprisonment; the death penalty is deliberately excluded.
Murder (Abolition of Death Penalty) Act 1965
1965 c. 71 (United Kingdom)
Abolished capital punishment for murder in Great Britain; made permanent in 1969, with the last UK execution carried out in 1964.
Protocol No. 13 to the ECHR
ETS No. 187 (2002), in force 1 July 2003
Abolishes the death penalty in all circumstances, including in time of war, across the Council of Europe; ratified by nearly every member state.
How the law frames it
United Kingdom
The UK abolished capital punishment for murder under the Murder (Abolition of Death Penalty) Act 1965, made permanent in 1969, and removed it for all remaining offences (including treason and piracy) in 1998. Through ECHR Protocols 6 and 13 the UK is bound to abolition in all circumstances, and Article 2 protects the right to life. The UK is now a fully abolitionist state in law and practice.
Canada
Canada removed the death penalty from the Criminal Code in 1976 and abolished it entirely (including under the National Defence Act) in 1998; the last execution was in 1962. In United States v Burns (2001) the Supreme Court of Canada went further, holding that extraditing anyone to face death without assurances breaches section 7 of the Charter, exporting the abolitionist principle to its cooperation with retentionist states.
ECHR
The European Court of Human Rights in Soering v United Kingdom (1989) held that exposing a person to the death-row phenomenon engages Article 3. Protocol 6 abolished the death penalty in peacetime (1983) and Protocol 13 abolished it in all circumstances (2002, in force 2003), making abolition a near-universal and non-derogable standard across the 46 Council of Europe states.
Counter-arguments and how to defeat them
Counter. The gravest crimes, such as genocide or child torture-murder, deserve death as a matter of retributive desert.
Rebuttal. Retribution is bounded by dignity; the state's moral authority is greater because it refuses to kill. The ICC punishes genocide with life imprisonment under Article 77, proving that even the worst crimes can be fully denounced without execution. A theory of desert that requires killing collapses into vengeance.
Counter. Tighter procedures, capital-qualified counsel and modern forensics can drive wrongful executions to near-zero.
Rebuttal. Capital trials already use heightened safeguards, yet more than 200 US exonerations have still occurred. Near-zero in theory is non-zero in practice, and for an irreversible penalty the only acceptable error rate is zero. A risk that can never be eliminated cannot be run.
Counter. Guided discretion and sentencing guidelines can remove the race and class bias from capital selection.
Rebuttal. Half a century of US reform after Furman and Gregg has not eliminated race, wealth and geography effects, and McCleskey shows courts tolerating them. Arbitrariness is endemic to discretionary justice; against an annihilatory penalty, any residual bias is fatal to justification.
Counter. A marginal deterrent effect, especially for terrorism, would justify execution to save future lives.
Rebuttal. The National Research Council found the deterrence evidence uninformative, so the claim is unproven. Proportionality requires the least drastic adequate means; life imprisonment incapacitates and denounces, so the necessity prong fails. "Maybe, sometimes" cannot license irreversible killing.
Counter. Democratic sovereignty entitles a people to set its own ceiling of punishment, including death.
Rebuttal. Sovereignty yields to norms that bind regardless of local preference, as the universal ban on torture shows. A retentionist state also isolates itself: Burns and Soering block extradition into a death-penalty risk, so retention obstructs the very prosecutions it claims to strengthen.
Conclusion
On dignity the death penalty is a deontic wrong; on fallibility an irreversible gamble; on equality a discriminatory lottery; and on penal necessity a redundancy fully covered by whole-life imprisonment. The hardest case, atrocity crime, is the one international law has most deliberately settled against execution. A constitutional state bound by life, dignity, equality and the rule of law therefore cannot justify killing its own convicts, and the only coherent answer to which crimes capital punishment should cover is none.
Evidence you can cite
- More than 200 people sentenced to death in the United States have been exonerated since 1973.Death Penalty Information Center, Innocence database (200 exonerations reached July 2024) — source
- Defendants charged with killing white victims in Georgia were 4.3 times more likely to be sentenced to death than those charged with killing black victims, even after controlling for 39 non-racial variables.Baldus study, as recorded in McCleskey v Kemp, 481 U.S. 279 (1987) — source
- A review of more than three decades of research concluded that existing studies are not informative about whether capital punishment decreases, increases or has no effect on homicide rates.US National Research Council, Deterrence and the Death Penalty (Nagin & Pepper eds., 2012) — source
Further reading
- S v Makwanyane and Another [1995] ZACC 3 - the Constitutional Court's full reasoning on dignity, life and retribution.
- United States v Burns 2001 SCC 7 - how an abolitionist state handles extradition into a death-penalty jurisdiction.
- US National Research Council, Deterrence and the Death Penalty (2012) - why the deterrence literature cannot support retention.
- Death Penalty Information Center, Innocence database - the catalogue of exonerations underlying the irreversibility argument.
- Protocol No. 13 to the ECHR and the Second Optional Protocol to the ICCPR - the treaty architecture of international abolition.