This House supports the death penalty for the worst of the worst

In The Death of Punishment, Robert Blecker, New York University law professor and pro-death penalty activist, argues that capital punishment is a moral imperative in certain cases, which he refers to as “the worst of the worst” – if a majority of a “death-qualified” jury (one that only contains death penalty supporters who will not impose it in all cases) finds that a person convicted of murder is guilty to a “no lingering doubt” standard, that aggravating circumstances outweigh mitigating circumstances, and the jury believe to a “Moral certainty” that the defendant should be executed, the jury must return a death sentence.

Who are the worst of the worst? This would only apply when the crime is first degree murder with aggravating circumstances:

A, Especially heinous as the killer exhibited pleasure in inflicting pain or tortured the victim

B, The victim was especially vulnerable

C, The murder was of law enforcement or emergency personnel because of their status

D, Serial killing: three or more occasions

E, mass murder: four or more victims

F, Contract killing

or aggravating motives:

A, Pecuniary – being paid for the murder

B, monetary greed

C, as a result of race, religion, etc.

D, Extraordinary selfishness – killing someone who is unresisting or a witness

E, Callousness – knowingly endangering multiple innocents

F, Sadism – relishing inflicting pain[1]

These aggravators must also outweigh any mitigating circumstances.


See also This House Supports the Death Penalty:

This is based on The Death of Punishment by Robert Blecker

[1] Blecker p.280. For more detail see the whole of Appendix B A Model Death Penalty (Permanent Punitive Segregation) Statute pp.279-282


Necessary for punitive justice

The concept of punishment is inherently based on retribution. “We don’t punish to prevent crime or remake criminals. We inflict pain-suffering, discomfort-to the degree they deserve to feel it.”[1] Retribution can be distinguished from revenge – retribution does not always seek to impose punishment that is the same as the original act, and never more.

The punishment must fit the crime so capital punishment is therefore an appropriate punishment for the worst of the worst – an eye for an eye.

[1] Blecker, p.28


By keeping a person locked up for life, which may well be appropriate for the “worst of the worst”, they are incapacitated for life. It similarly satisfied any retributive instinct, providing a total punishment, a form of internal banishment and total civil death – if one considers retributive justice desirable.

Moreover this is inconsistent. If we are inflicting an eye for an eye because they deserve it then why should the death penalty reserved for the worst of the worst? Should it not be exactly proportional – which would mean all murderers should face the death penalty.

Could be cheaper

While budget should not be the primary concern of the justice system, The death penalty, when applied properly, can be cheaper. A lethal injection, or a few bullets, costs far less than keeping a person incarcerated for a long time, especially if they need long term health or other care in old age. The longer someone is in jail the greater the cost to the state. 

The costs of the implementation of the death penalty are driven up by anti-death penalty activists using the appeals system.  Since the death penalty would only be applied to the worst of the worst when there is absolute moral certainty there would be less need for extensive appeals because there would be less marginal cases.


The reason why the death penalty is so expensive – 13 executions since 1978 in California costing around $4bn[1] - is the “super due process” that is necessary in capital cases, especially with the large flaws in the US justice system.

Blacker makes no coherent proposal on how he would modify the appeals system. Removing or reducing it would make it very likely that more innocent people would be executed.

To accuse people who want to prevent criminals deaths of wasting money is more or less victim blaming.

[1] Alarcon, Arthur and Mitchell, Paula, “Executing the will of the voters? A roadmap to mend or end the California legislature’s multi-billion dollar death penalty debacle”, Loyola of Los Angeles Law Review, 2011,

Can be reserved for the worst of the worst

For those who are concerned about some of the practical objections to the American death penalty, it is possible to restrict the death penalty to those most deserving of it: “the worst of the worst”, those like Anders Behring Breivik, Charles Manson and Harold Shipman. The death penalty should not be for people who are convicted as a result of three strikes - in 2004, someone was convicted of first degree murder with a whole life sentence for lending a friend a car[1] – it should not be a default sentence.[2]

[1] Liptak, Adam, “Serving Life for Providing Car to Killers”, The New York Times, 4th December 2007,

[2] Blecker, p.210


While Blecker proposes a three step test in a draft statute, it does not feature much legal certainty – it features a large amount of jury discretion, which was deemed to be a violation of the US constitution[1]. Any such elastic definition would allow prosecutors to make an argument that pretty much any case is within such a category.

It also continues due use of “death qualified juries”, exclusively made up of death penalty supporters[2], which are racially skewed toward being whiter. Would this then end up really being for the worst of the worst?

[1] See Furman v Georgia, 408 US 238 (1972)

[2] See Witherspoon v Illinois, 391 US 510 (1968)

Killers must die to satisfy society

Those who have damaged society by robbing it of one of its members must pay for their crime. Adam Smith argued “We feel that resentment which we imagine he ought to feel, and which he would feel, if in his cold and lifeless body there remained any consciousness of what passes upon earth. His blood, we think, calls aloud for vengeance.”[1] It is not just the wronged individual who needs there to be retribution but society as a whole. Everyone in society is wronged by particularly heinous crimes as Blecker says of two horrific crimes “Those were my children, my wife that Coker raped and murdered, my sister Speck killed”.[2]

[1] Smith, Adam, ‘The theory of Moral Sentiments”, MetaLibri Sixth Edition, 1790, p.62

[2] Blecker, p.30


Those who are murdered are not some public resource – they are not our relatives. We may feel sorrow for the victims and their family but uninvolved members of society have no reason to demand punishment on account of them being members of ‘our family’. What of all those who do not feel such resentment, should society enact a death penalty simply to gratify a part of the population that feels this way. This is not a rational grounds for a death penalty even for the very worst. In order to claim that the society wants the criminals' blood, you have to make sure that a)everyone does; b)the person killed deserves to be avenged.


Suggesting the death penalty should be used as a deterrent is nothing other than arguing that people should be killed to show that people killing people is wrong.  There is little evidence that it works; when Canada abolished the death penalty nationally in 1976, the homicide rate fell from 3.09 in 1975 to 2.31 in 1980.[1]

In that sense, imposing the death penalty makes the state no better than the murderer, and a murderer in itself by killing a person in such circumstances. If we are using the death penalty to punish the murderer then what should we use to punish the state for its actions?

[1] Amnesty International, ‘Document – The Death Penalty, Questions and Answers’, accessed 3rd January 2014,


The state using the legal process being trusted to do something is different between an individual doing so. The state executing people is the only way that justice can be achieved; there is a moral difference between execution in support of society and murder against society.

There is an immense difference between a murder and a lawful killing by the state. If the death penalty makes the state no better than a murderer then a soldier is one too. In a more absolutist view, if capital punishment devalues life, do fines for theft devalue property?

Too many innocents killed

Capital punishment in the US kills too many innocent people.  Over 143 people who were innocent were exonerated from death row since 1973[1]. One person executed is too many – it has already happened in the US, with Carlos DeLuna[2]. It is likely that many innocent people have been executed in the US – it is a price not worth paying. 

[1] Death Penalty Information Centre, Innocence list”,, 2013,

[2] Pilkington, Ed, “The wrong Carlos: how Texas sent an innocent man to his death”, The Guardian, 15 May 2012,


As in any activity in life, a risk will exist in any justice system – many innocent people are in prisons. But there are also risks inherent in being too lenient and letting the worst of the worst out again in the future.

However, capital punishment can be used less, and a higher standard of proof can be used in capital cases. “In the end, we must risk a minuscule possibility of error for the near certainty of justice.”[1]

[1] Blecker, p.275

The death penalty is racist

Like the rest of the American criminal justice system, capital punishment in America is institutionally racist: black men make up 6% of the US population as a whole but 40% of those on Death Row[1]. In the US, African-Americans and White people are murdered in almost equal numbers, but 80% of those executed since 1977 were convicted of the murder of a white[2].

[1] Blecker, p.237

[2]Amnesty International, “United States of America: Death by Discrimination – the continuing role of race in capital cases”, Amnesty International, 2003,


This is not a higher discrepancy than imprisonment, meaning the problems may well be socio-economic rather than justice related.

A reason for this discrepancy may be the felony murder rule – that any death caused by a felony, even if it would normally amount to manslaughter, constitutes murder (in some cases, first degree murder) – if that is the case, the felony murder rule should be abolished. If capital punishment were reserved for the worst of the worst then this racial bias would be almost eliminated.[1]

[1] Blecker, p.237

Who are the worst of the worst?

Killing the worst of the worst is essentially arbitrary. Even with a list of aggravators balanced by mitigations the death penalty is hardly going to be left to just the very worst. In the case of Daryl Holton who killed his four children Blecker decides “I remain convinced, but not morally certain, that he deserved to die.”[1] This shows there will always be cases that are borderline. Moreover everyone’s views of the worst of the worst are different. Is Holton the “worst of the worst” or should that category be reserved for Hitler and Pol Pot?

[1] Blecker, p.197


Regardless of the categorisation there are some who are worst of the worst. It is up to individual states and societies to determine who qualifies as the worst of the worst for them.


Blecker, Robert, “The Death of Punishment”, Macmillan, 2013


Alarcon, Arthur and Mitchell, Paula, “Executing the will of the voters? A roadmap to mend or end the California legislature’s multi-billion dollar death penalty debacle”, Loyola of Los Angeles Law Review, 2011,

Amnesty International, ‘Document – The Death Penalty, Questions and Answers’, accessed 3rd January 2014,

Amnesty International, “United States of America: Death by Discrimination – the continuing role of race in capital cases”, Amnesty International, 2003,

Death Penalty Information Centre, Innocence list”,, 2013,

Furman v Georgia, 408 US 238 (1972)

Liptak, Adam, “Serving Life for Providing Car to Killers”, The New York Times, 4th December 2007,

Pilkington, Ed, “The wrong Carlos: how Texas sent an innocent man to his death”, The Guardian, 15 May 2012,

Smith, Adam, ‘The theory of Moral Sentiments”, MetaLibri Sixth Edition, 1790,

Witherspoon v Illinois, 391 US 510 (1968)

Amnesty International, “United States of America: Death by Discrimination – the continuing role of race in capital cases”, Amnesty International, 2003,