Capital punishment is the punishment by death authorized by the government, and it can be used to punish capital crimes such as treason. In 2015, Nebraska banned capital punishment and replaced it with a life imprisonment sentence like 18 other states, but capital punishment still remains legal in 31 states of the United States of America (Bosman, 2015). The controversy regarding the morality and constitutionality of capital punishment is probably going to persist for a long time, especially because capital punishment is both constitutional and unconstitutional in the United States of America.
It is possible to argue that capital punishment is constitutional because the Constitution of the United States of America states that a person shall not be “deprived of life, liberty, or property, without due process of law” (U.S. Const. amend. V.). Therefore, it is possible to interpret the deprivation of life as a possible consequence of criminal activity, but only if the criminal receives due process like everyone else.
At the same time, the Constitution can be used to find evidence for arguing against capital punishment and labeling it as unconstitutional. Amendment V only mentions that a person will not be deprived of life without due process, but it does not mention capital punishment as one of the possible outcomes of due process. Furthermore, the Constitution also states that cruel and unusual punishment will not be inflicted upon any person (U.S. Const. amend. VIII.). The Constitution does not define what type of punishment is “cruel and unusual,” so it is not possible to determine whether capital punishment in any of its forms fits that description.
Attitudes about capital punishment depend on cultural and political factors, and the United States is a country in which the legal system relies on incapacitation. Incapacitation is a criminal justice system philosophy that considers incarceration the best solution for crime because it separates criminals from the general population (Mooney et al., 2014, p. 128). In contrast to incapacitation, rehabilitation argues that criminals should be changed through programs like counseling, education, training, and similar interventions (Mooney et al., 2014, p. 128). The two opposing views will most likely also have different attitudes about capital punishment because it is not in alignment with the rehabilitation philosophy, but it does solve crime-related problems using a similar method as incapacitation-based justice systems. However, different capital punishment attitudes within the two philosophies may occur because of religious or ethical factors.
Another important consideration in the discussion of capital punishment is the fact that research on criminal behavior supports social inequality and the weakening of social bonds in society as the main causes of criminal activities (Mooney, Know & Schacht, 2014, p. 136). Therefore, if society has an important role in developing the criminal subcultures, the right of society to enforce capital punishment should be brought to question because the Constitution does not provide a clear answer on that matter.
Based on the Constitution of the United States of America, Amendments V and VIII, it is possible to conclude that capital punishment is both constitutional and unconstitutional, depending on how the Amendments are interpreted. Therefore, the support or opposition to capital punishment is going to depend on the cultural and political factors. It is possible that the incapacitation criminal justice philosophy supporters will most likely consider capital punishment constitutional, whereas the rehabilitation, criminal justice philosophy supporters will most likely consider capital punishment unconstitutional.
References
Bosman, J. (2015, May 27). Nebraska bans death penalty, defying a veto. The New York Times. Retrieved from http://www.nytimes.com/2015/05/28/us/nebraska-abolishes-death-penalty.html
Mooney, L. A., Know, D., & Schacht, C. (2014). Understanding social problems (9th ed.). Stamford, CT: Cengage Learning.
U.S. Const. amend. V.
U.S. Const. amend. VIII.
