The death penalty is common parlance for “Capital Punishment.” By any of its several names, it is the state-sanctioned practice of killing a person as punishment for a crime. The key nouns are state-sanctioned, person, punishment, and crime. But the most important word is the verb—killing. Legally, it’s the sentence that matters, not-so-much the killer. It’s also known as “death sentence,” which is the execution order issued by a court after a jury decides that a defendant should be executed rather than imprisoned.
As of 2022, fifty-four countries use capital punishment. 109 countries have completely abolished it.[1] Amesty International says it breaches human rights—“the right to life and the right to live free from torture or cruel, inhuman, or degrading treatment or punishment.”[2] In 2021, eleven defendants were executed in the U.S. Japan and the U.S. are the only “developed” countries to have recently conducted executions. It was reinstated here in 1976 by the Supreme Court. Since then, 1,400 executions have been conducted.[3]
The prompt for this blog is not the death penalty in the abstract, but the death penalty for a crime so heinous, so unthinkable, that it shocks the conscience of all of us, irrespective of how we feel about the death penalty in abstract terms. The headline reads, “Life or Death For Parkland Shooter.”[4] Of course, the case is the Parkland Marjory Stoneman Douglas High School massacre. The killer, Nikolas Cruz, freely, quickly, and truthfully admits murdering seventeen students. It was the deadliest U.S. mass shooting ever to reach a jury in American history. It will not be resolved for several months after the first day of trial by jury in Fort Lauderdale Florida on July 18, 2022.
This blog is not about the death penalty or the Parkland case. It is about the ethics of writing about capital punishment by any name, circumstance, place, or crime. The Pew Research Center’s data confirms, “Among the public overall, 64% say the death penalty is morally justified in cases of murder, while 33% say it is not justified. An overwhelming share of death penalty supporters—90%–say it is morally justified under such circumstances, compared with 25% of death penalty opponents.”[5]
The press and public response to the death penalty in the Parkland case is straight-forward. He freely admitted his crime. He killed seventeen fellow high school students. His only “defense” is not to the crime, but to the sentence for the crime. If the media is correct, the only challenge the defendant will make is to present his immature age, and his lifelong emotional and psychological problems. He will argue mitigation, not guilt. At the core of the jury trial will be his capacity to appreciate the criminality of what he did, not the murders he committed.
Scores, if not hundreds of articles, press releases, tweets, posts, posters, and op-eds will be written. What ethical guidance or imperatives are there? It’s true that capital punishment is often defended by arguing society’s moral obligation to protect the safety and welfare of its citizens. That argument justifies execution because it’s the only way society can ensure that convicted killers do not kill again. At a deeper level, capital punishment is defended by its supporters by arguing justice is a matter of ensuring that everyone is treated equally. Murder victims die. So should murderers.
The opposing moral view argues society has a moral obligation to protect human life, not take it. This side argues taking a human life is only permissible. “If it is a necessary condition to achieving the greatest balance of good over evil for everyone involved. Given the value we place on life and our obligation to minimize suffering and pain whenever possible, if a less severe alternative to the death penalty exists which would accomplish the same goal, we are duty-bound to reject the death penalty in favor of the less severe alternative.”[6]
The “ethical” argument differs from the “moral” argument. It uses utilitarian ethical values to argue against the death penalty. There are three utilitarian values: “First, the death penalty fails to deter criminals. Second, it brutalizes the victim’s family. Third, it is a more expensive means to achieve the same goal that life imprisonment can accomplish.[7]
Writing about the death penalty also presents philosophic challenges, beyond whether it’s morally justified, or ethical. “Most modern philosophic attention to capital punishment emerged from penal reform proponents, as principled, moral evaluation of law and social practice, or amidst theories of the modern state and sovereignty. The mid-twentieth century emergence of an international human rights regime and American constitutional controversies sparked anew much philosophic focus on theories of punishment and the death penalty, including arbitrariness, mistakes, or discrimination in the American institution of capital punishment.”[8]
The ACLU has staked a clear, unequivocal, written, opposition to the death penalty. “The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.”[9]
So, what ethical imperatives are derived from these positions on the death penalty? By breaking down the moral, ethical, philosophical, and legal positions summarized above, a consensus might be found.
- Writers should not ignore ethical, moral, philosophical, or legal aspects in writing about the death penalty. They should, where warranted and material, offer content or commentary ethically as well as professionally.
- Writers should take into consideration how their content impacts, harms, heals, soothes, or helps readers understand the consequences of inexplicable murder in mass shooting cases.
- Writers should be cautious about positions taken by one side or the other in ethical terms, not just writing under deadline or in small spaces.
- Writers can expand awareness and subjectivity to capital punishment and explanations of how and why mass shootings happen.
- Writers might comment freely about the single common component in every mass shooting case—the presence of a gun. Gun rights and human rights collide at the speed of a bullet. Without guns or bullets there would be no mass shootings and no capital punishment.
The death penalty is the ultimate, irrevocable punishment. We should be mindful of that when we write about it.
The risk of executing an innocent person can never be eliminated. Since 1973, for example, more than 184 prisoners sent to death row in the USA have later been exonerated or released from death row on grounds of innocence.[10] We should have possible innocence close at hand when writing about it.
The death penalty does not deter people from committing murder. While thoroughly researched, there is no evidence that the death penalty is any more effective in reducing crime than life imprisonment. We should tape a note to ourselves on our keyboards when we write about the death penalty.
Mindfulness, risks, and knowledge are ethical norms. We should pay attention, especially when writing about punishment.
[1] https://en.wikipedia.org/wiki/Capital_punishment
[2] Das, J.K. (2022). HUMAN RIGHTS LAW AND PRACTICE, SECOND EDITION. PHI Learning Pvt. Ltd. p. 192. ISBN 978-81-951611-6-4. Retrieved 8 May 2022.
[3] https://en.wikipedia.org/wiki/Capital_punishment
[4] Terry Spencer, Associated Press, The Albuquerque Journal, July 17, 2022, page A7.
[5] https://deathpenalty.procon.org/questions/is-the-death-penalty-immoral/
[6] https://www.scu.edu/ethics/focus-areas/more-focus-areas/resources/capital-punishment-our-duty-or-our-doom/
[7] https://www.arjonline.org/papers/arjhss/v4-i1/24.pdf
[8] https://iep.utm.edu/death-penalty-capital-punishment/
[9] https://www.aclu.org/other/case-against-death-penalty
[10] https://www.amnesty.org/en/what-we-do/death-penalty/
I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.
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I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. 
My latest novel is Hide & Be. 
If you have an important story you want told, you can commission me to write it for you. 