42 Pages Posted: 24 Apr 2008 Last revised: 29 Jun 2011
Date Written: March 12, 2008
The Case Against the Death Penalty, authored by capital punishment scholar Hugo Adam Bedau and published by the American Civil Liberties Union, is a leading publication on capital punishment and in particular on the abolition of the practice. In this seminal work, Bedau offers eight arguments as to why capital punishment is inconsistent with the Constitution and the fundamental principles undergirding the American criminal justice system. Specifically, Bedau argues that capital punishment does not deter capital crimes, is unfair, is irreversible, is barbarous, is unjustified retribution, costs more than incarceration, is less popular than alternative punishments, and is internationally viewed as inhumane and anachronistic.
Despite its continuing influence, The Case Against the Death Penalty, has not been directly or comprehensively challenged in any academic legal journal. This Article attempts, for the first time, to fully examine the eight objections to capital punishment advanced by Bedau. In doing so, this Article draws upon Supreme Court jurisprudence, including the landmark Furman v. Georgia decision, government studies, legal and philosophical commentary, and other contemporary sources.
The Article provides a brief historical overview of the development of capital punishment in the United States. It finds that the barbarity, cost, domestic popularity, and global attitudes claims are irrelevant to a determination of whether capital punishment is compatible with American laws and principles. It further finds that the arbitrary imposition, killing of the innocent, and deterrence arguments are inconclusive. As a result, the Article concludes with the observation that Bedau's final argument, that capital punishment is unjustified retribution, is the only one that is ultimately salient. It further argues that this argument amounts to a moral determination as to whether the death penalty is a just form of punishment and it is this inherently value-based judgment that will decide the fate of capital punishment in this nation.
Keywords: capital punishment, death penalty, morality, cruel and unusual punishment, eighth amendment
Suggested Citation: Suggested Citation
Sidhu, Dawinder S., Death as Punishment: An Analysis of Eight Arguments Against Capital Punishment (March 12, 2008). West Virginia Law Review, Vol. 111, p. 453, 2009. Available at SSRN: https://ssrn.com/abstract=1123831