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Essay: Which is more ethically sound – the death penalty or life without parole?

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  • Published: 30 January 2022*
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This essay will evaluate both the death penalty and Life without Parole in terms of how ethically sound they are as methods of punishment and conclude that life without parole is a more ethical form of punishment than the death penalty, but that it still faces many of the same problems and can therefore be seen as unethical in itself.

I will begin by defining ‘ethical’ for the purposes of this essay and discussing how the death penalty and life without parole have been used and have interacted in my chosen jurisdiction (the USA).

I will then discuss some of the ethical problems that are faced by both forms of punishment, including the lack of relevance to many of the justifications for punishment and the inequity in the imposition of these sentences between different racial and ethnic categories. I will include some discussion of how life without parole itself is an extreme punishment and is comparable to a death sentence.

Finally, I will highlight some of the ethical issues unique to the death penalty such as the expense of the appeals process and the argument that, as a punishment, the use of death sends mixed moral messages, concluding that life without parole, while facing many of its own issues, is, ethically, a preferable alternative.

For this essay, I will take the term ethical to mean morally unproblematic with a main focus on the experiences of the offenders facing the punishment and, to a lesser extent, those of the victims of the crimes committed and their families. As the offenders are the people whose lives are most directly impacted by the choice of sentence, I feel it is appropriate to keep their experiences as the central factor when it comes to discussing the ethics of punishment.

In terms of a focus on a particular jurisdiction, the USA offers a very useful example, as one of the only ‘western’ democracies to retain the death penalty (Garland, 2010) and as a nation with a growing population of prisoners serving life sentences (Nellis and King, 2009).

After the death penalty was seemingly abolished at a federal level in the USA in the 1970s in the case of Furman v. Georgia, life without parole (LWOP) became a much more prominent feature of the US justice system, as a severe sentencing option ‘second to’ the death penalty (Appleton and Grøver, 2007). The power of individual states to decide on the matter of capital punishment was soon returned in another court case just a few years later, but the prominence of LWOP as a sentencing option was not diminished (Chancer, 2012). The option of using LWOP has subsequently been used extensively to argue for the abolition of the death penalty, although it faces many of the same objections, which I will discuss later.

Although initially used only for the most serious offences, the use of LWOP for a wider variety of offences has increased dramatically, and the introduction of legislation designed to target lower-level habitual offenders, such as the ‘three strikes’ policy in California, has meant that many less serious crimes are being punished using LWOP (Appleton and Grøver, 2007).

The number of executions that have taken place in the USA has been steadily decreasing since 1999, although there are still a significant number taking place each year (23 and 25 in 2017 and 2018 respectively) (Death Penalty Information Center (DPIC), 2019). There is also considerable public doubt in the efficacy of the death penalty in reducing crime or its desirability as a punishment (ibid.). This decrease in the use of the death penalty and increase in the use of LWOP as a punishment may be reflective of Foucault’s theory of a movement away from punishment of the body and towards punishment of the ‘soul’, as the state utilises a more disciplinary power (Foucault, 1991). As the state’s ability to establish surveillance over the population increases, the necessity to demonstrate their physical power decreases, and so less ‘physical’ punishments are utilised (ibid.). Elias’ theory of the ‘civilising process’ (1994) can also be used to help in explaining a general transition towards less physically punitive sentencing and the increased use of deprivation of liberty as punishment.

The use of both LWOP and the death penalty in the USA is open to many criticisms in terms of the morality of both punishments, and so their fluctuating and interacting use is of great interest.

There are several ethical problems that are relevant to both LWOP and the death penalty.

The first problem which I wish to discuss is that both the death penalty and LWOP fail to appeal to a great deal of the traditional justifications of punishment and seem to rely on retribution and incapacitation as the only relevant defences. Both forms of punishment, by their very nature, seem to deny the possibility of rehabilitation. The capacity of the offender to be reformed or to change is ignored. This is perhaps why the fact that the federal courts ruled it unconstitutional to sentence a juvenile to the death penalty is so interesting. The potential for further positive development of juveniles, rather than their offence being “a result of an irretrievably depraved character” (Scott, 2005, p. 550) was a considerable factor in the majority opinion of the court in Roper v. Simmons (ibid.). When a sentence of LWOP or the death penalty is given, this potential for development of the offender is denied as a possibility, and there is no rehabilitative element to the punishment. This lack of rehabilitation in the punishment process also poses problems in terms of how to provide any form of productive activity for those serving these sentences. If there is no hope of release, many of the educational or vocational activities available to offenders may, understandably, seem pointless.

Another justification of punishment, often cited in defence of the death penalty, is deterrence. The harsh nature of the sentencing supposedly deters others from committing the same type of crime. The death penalty and LWOP can only be understood in the context of general deterrence, as you cannot ‘deter’ an individual from reoffending by incapacitating them (this is a different justification for punishment). However, the data on the deterrent effect of the death penalty is inconclusive, and there is a general consensus amongst criminologists that the “death penalty does […] little to reduce rates of criminal violence” (Radelet and Akers, 1996, p. 10), and there is research that shows that the Southern states have the highest homicide rates despite accounting for over 80% of executions (DPIC, 2019).

The death penalty and LWOP then rely on incapacitation as one of their key justifications but punishing people on the basis of crimes they have not yet committed, or potential future behaviour does not seem morally sound.

Where punishment does not seem to serve a purpose in terms of reducing crime rates or changing the nature of the offender, Durkheim would argue that there remains a reason for punishment in that it is a moral institution (1970). When we, as a society, punish a certain action particularly harshly, we are communicating a message about the morality of that action through punishment. Punishment is therefore a method of reinforcing and re-establishing social and moral norms within a society. While I might argue that there is some value to the strengthening of the ‘conscience collective’, it seems excessive to use the taking of a life or LWOP as a means toward that end.

Another ethical problem with the death penalty and LWOP is the inequity in administration of the sentences. The death penalty, much like prison sentencing in the USA more generally, is disproportionately applied to ethnic minorities, most notably to black men. In 2018, 42% of the prisoners on death row in the United States were African American, despite making up less than 15% of the general population (DPIC, 2019). Over 55% of those serving life without parole are African American, showing considerable disparity in sentencing across racial and ethnic categories (ACLU, 2014).

There is also evidence of a bias dependent on the ethnicity of the victim. Those crimes with white victims are more likely to be classified as first-degree murder, and also more likely to incur the death penalty for the offender (Petersen, 2017). These differences cannot be entirely explained through differential offending across ethnic groups, and so leave the strong impression that some lives (specifically white lives) matter more than others within the US criminal justice system. The death penalty and LWOP therefore often represent a de facto reinforcement of pre-existing social inequalities.

Human rights violations are also central to debates around the ethics of the death penalty and LWOP. The main argument put forward by human rights activists is that the death penalty violates the fundamental human right to life, and the right to freedom from “cruel, inhuman or degrading treatment or punishment” (United Nations, 1948, Article 5) as set out in the Universal Declaration of Human Rights (ibid.). The removal of one’s right to life by the state as a form of punishment would then constitute as ‘cruel, inhuman or degrading’. While most western democracies agree that these human rights are a matter of international policy (to the extent that a condition of membership of the European Union is the abolition of the death penalty (Delegation of the European Union to the Council of Europe, 2018)), the USA continues to see capital punishment as a domestic policy issue.

Many people have also put forward arguments suggesting that LWOP also violates certain human rights. A sentence of LWOP is essentially a sentence to die (of ‘natural causes’) in prison, which some argue is tantamount to a death sentence. Villaume describes sentences to LWOP as “semantically disguised sentences to death” (2005, p. 266). Additionally, the conditions in prison can be very harsh, causing, in many cases, damage to mental health, earlier ageing and issues with physical health. The question of whether a life in these harsh conditions, with no hope of release and no concept of time left to serve, is a humane punishment then seems more than valid. The ruling of Pratt and Morgan v The Attorney General for Jamaica and Others argued that executing someone who had already served more than five years on death row would constitute ‘double punishment’ (Highet, Kahale and Phillips, 1994), which suggests that serving time in prison conditions without the hope of release is more than usually strenuous and unpleasant for the offender and that the argument that LWOP could constitute an ‘inhuman’ or ‘cruel’ punishment may be plausible.

All the ethical problems I have discussed so far are relevant to both life without parole and to the death penalty, and so offer little in terms of morally distinguishing between the two sentences, other than to argue that the death penalty is simply a substantively harsher punishment than LWOP while not being normatively different. I will now discuss some of the criticisms of the death penalty that LWOP avoids, in order to highlight why LWOP might offer a more ethical alternative sentencing option.

Firstly, when it is used to punish crimes involving the taking of a life, the use of the death penalty sends mixed moral messages to the general public. If we are punishing an act that we deem to be universally unacceptable by allowing the state to commit that same act on the behalf of the public, the morality of the action itself no longer seems so clear cut. If we place some of the value of punishment on the reinforcement of social and moral norms within society, as Durkheim’s theory of punishment would suggest (1970), the death penalty seems counterproductive.

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