Why Capital Punishment Is No Punishment at All

65 Pages Posted: 3 Jul 2016

See all articles by Jason Iuliano

Jason Iuliano

Villanova University - School of Law

Date Written: September 1, 2015


Capital punishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society’s most severe punishment.

In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy. In fact, it is no punishment at all. My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished. By drawing upon the philosophical literature regarding death, I show that this is not the case. Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.

This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad. There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation. By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.

Keywords: capital punishment, death penalty

Suggested Citation

Iuliano, Jason, Why Capital Punishment Is No Punishment at All (September 1, 2015). 64 American University Law Review 1377 (2015). Available at SSRN: https://ssrn.com/abstract=2802836

Jason Iuliano (Contact Author)

Villanova University - School of Law

299 N. Spring Mill Road
Villanova, PA 19085
United States

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