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Samantha Posey

April 9th, 2020

ENG 122

Rachel Newlon

Argumentative Writing

The Unconstitutionality of the Death Penalty: The United States’ Inability to Be Lawful and

Humane

The death penalty is an extremely controversial subject right now with the nation divided

based on the states that do and do not offer it. Even so, what is more interesting are the

justifications our constitution makes for it. While the Eighth Amendment prohibits cruel and

unusual punishment, the Fifth Amendment allows deprivation of life so long as there is due

process of the law. The death penalty should be abolished whereas, it is an unjust form of

punishment, encourages unnecessary life or death decisions based on emotion, and also

contradicts statements made in the constitution.

There are many different arguments against the death penalty, one being its violation of

the constitution. Stevens argues that it is a “pointless and needless extinction of life with only

marginal contributions…[with] patently excessive and cruel and unusual punishment violative of

the Eighth Amendment" (2011). Cruel and unusual punishment is defined as anything that is an

unnecessary and wanton infliction of pain (Cornell Law). If the death penalty—electric chairs,

lethal injections, gas chambers, and firing squads—does not constitute an unnecessary infliction

of pain then the United States may need a morality check. Not only is the death penalty violative

of the Eighth Amendment, but also of the Fifth. The Fifth Amendment allows deprivation of life

as long as there is due process of the law however, in many cases “DNA testing has shown
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innocent people are convicted of capital crimes” (Murray 2002). By convicting and sentencing to

death innocent people, the court is no longer obeying the Fifth Amendment of proper due process

of the law. Not only is the death penalty violative of the Constitution, but also the sheer fact that

several people have been killed by the death penalty even though further evidence came out

suggesting their innocence.

In addition, jury selection may be biased to rule in favor of the prosecuting attorney

which can result in an unfair trial. When jurors are forced into deciding guilt or innocence, they

most often rely “on the basis of emotion rather than reason” (Steven 2011). In many cases, the

jury will sentence the convicted individual to death as a means of “justice.” While some may

argue that the death penalty serves justice to those that deserve it, the reality is that it normalizes

killing. Putting to death someone who was convicted of murder only establishes that it is okay to

kill under specific circumstances made by the government when in reality, who gave them that

power? Not only is the death penalty hypocritic but also, those convicted of the death penalty are

done so way too easily. When a prisoner is executed, additional victims are created. Their family

and friends grieve too (Evans 2012). The death penalty unnecessarily deprives someone of life as

well as unnecessarily deprives their family and friends, who—in the eyes of society—have done

no harm.

The counterargument believes a whole array of fallacies. One of the more popular claims

is that capital punishment “will lead to many additional murders in society” (Rubin 2005). This

argument is simply not valid. According to the Death Penalty Information Center—every year

from 1990 to 2018—the national average of the states with the death penalty obtained a higher

percentage rate of homicide that the states without the death penalty. By not executing

murderers, there will simply be one less person killed.

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The death penalty should no longer be in use seeing as it is an unnecessary infliction of

pain, encourages life or death decisions based on emotion, as well as contradicts statements made

in the constitution according to the Fifth and Eighth Amendment. While some may argue that the

death penalty is based on reason and provides justice to the victims while deterring future crimes,

this is generally not true. As proven by statistics provided by the Death Penalty Information

Center, the death penalty does the exact opposite of deterring murder. By allowing jurors to

make life or death decisions based on emotion, we are creating additional victims. Abolishing the

death penalty is the only way—we as a nation—can begin to heal.

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Works Cited

Cornell Law. “Cruel and Unusual Punishment.” Legal Information Institute, Legal

Information Institute, www.law.cornell.edu/wex/cruel_and_unusual_punishment.

Death Penalty. “Murder Rate of Death Penalty States Compared to Non-Death Penalty States.”

Death Penalty Information Center, https://deathpenaltyinfo.org/facts-and-

research/murder-rates/murder-rate-of-death-penalty-states-compared-to-non-death-

penalty-states

Evans, Kim Masters. "Capital Punishment Should Be Abolished." Capital Punishment: Cruel and

Unusual?, 2012 ed., Gale, 2012. Information Plus Reference Series. Gale In Context:

Opposing Viewpoints, https://link-gale-

com.arapahoecc.idm.oclc.org/apps/doc/EJ4189200319/OVIC?

u=apcc&sid=OVIC&xid=519e3c2b. Accessed 27 Apr. 2020.

Murray, Frank J. "Court upholds constitutionality of death penalty." Washington Times

[Washington, DC], 11 Dec. 2002, p. A05. Gale In Context: Opposing Viewpoints,

https://link-gale-com.arapahoecc.idm.oclc.org/apps/doc/A95239804/OVIC?

u=apcc&sid=OVIC&xid=087cd465. Accessed 27 Apr. 2020.

Rubin, Paul H. "Capital Punishment Is a Deterrent." Capital Punishment, edited by Mary E.

Williams, Greenhaven Press, 2005. Current Controversies. Gale In Context: Opposing

Viewpoints, https://link-gale-
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com.arapahoecc.idm.oclc.org/apps/doc/EJ3010036253/OVIC?

u=apcc&sid=OVIC&xid=d2f119f0. Accessed 27 Apr. 2020. Originally published as

"The Death Penalty and Deterrence," Phi Kappa Phi Forum, vol. 82, Winter 2002, p. 10.

Sarat, Austin. "The Overwhelming Evidence Against the Death Penalty." Gale Opposing

Viewpoints Online Collection, Gale, 2020. Gale In Context: Opposing Viewpoints,

https://link-gale-com.arapahoecc.idm.oclc.org/apps/doc/YGCWHT883178151/OVIC?

u=apcc&sid=OVIC&xid=8c1a48b7. Accessed 27 Apr. 2020. Originally published as

"The Overwhelming Evidence Against the Death Penalty," The New Republic, 1 May

2017.

Stevens, John Paul. "The Death Penalty Violates the Constitution of the United States." The

Ethics of Capital Punishment, edited by Christine Watkins, Greenhaven Press, 2011. At

Issue. Gale In Context: Opposing Viewpoints, https://link-gale-

com.arapahoecc.idm.oclc.org/apps/doc/EJ3010313213/OVIC?

u=apcc&sid=OVIC&xid=6aed0a6f. Accessed 27 Apr. 2020.