The subject of the death penalty is extraordinarily complex, and its discussion is fraught with misinterpretation of law and human irrationality. I will propose a very simple solution to the issue: abolish the death penalty, and move all condemned men to a self-sustained prison on the moon, where escape will be rewarded with rapid decompression resulting in death. This way, we have no way to fear criminals who have committed heinous crimes, as an escape plan would require billions of dollars of resources which criminals simply don't have at their disposal. Does this plan sound as if it sets up safeguards which are completely unnecessary considering the current options, as if it were created merely to subdue public feelings of anger and fear, stoked by the relentless media coverage of these criminals' cases?

That's great, because it is.

The notion that the death penalty is actually useful for protecting the public where a life sentence is the only alternative option should be dispelled immediately: while it is possible for criminals to escape from even a high-security prison, this grows increasingly less likely as prisons are designed in increasingly more sophisticated (not to mention cost-effective) ways so as to ensure their integrity. Three quite broad questions, pertaining first as to the ethical integrity of the death penalty, second as to the legal integrity of the death penalty, and third as to the current application of the death penalty, must be examined in order to properly understand the issue.

Ethics

To view the death penalty in a framework of ethics, first we must adequately describe all of the involved parties as abstractly as possible, so as to ensure that this examination will not be contaminated by questions of law and government, societal constructs we must ignore for the sake of ethical integrity (this is said with the assumption that the government exists purely as a manifestation of the will of the people). First, we need an actual basis for ethics themselves. There are two extremely broad schools of thought here: the naturalist view of thought and the religious school of thought. Nearly every mainstream religion, in its most viable interpretations, condemns those who murder for any reason whatsoever: specifically in America, where the vast majority of religious people are Christian, there is a very simple sentence which describes the feelings of their religion as to murder: "Thou shall not kill." (Deut. 5.1-21, King James Bible), granted that the Bible is filled with seemingly contradictory statements. Conversely, a naturalist may argue that morality is not entirely dependent on religion: societal influences cannot be underestimated in their ability to shape individuals in any number of respects, nor are the powers of instinctual feelings about death and offense to do likewise any less significant.

This itself turns into a legal debate about the applicability of religion to law, and considering that religion is essentially forbidden from having any extraneous influence on law in the United States (in theory, not so much in execution), we are left with naturalism to examine the issue. Unfortunately, naturalism does not provide a basis for morality. Concepts of "right" and "wrong" are entirely arbitrary, based entirely on wildly variable emotions and on instincts originally acquired so as to ensure the survival of small groups of humans (it is indeed often argued that religion itself is a construct of these instincts). If one man kills several members of his tribe, it will be to the benefit of the tribe if he is killed, his murderer will argue. Here yet another problem rises: are we to weigh the interests of the accused as less important than any member of the general public?

Let us view the problem as a matter of scale. Is a victim of attempted murder who preemptively shoots her attacker vindicated on the basis that she was the one who was originally attacked? What if there are two would-be victims? Twenty? Simply put, the answer is no. The attacker is a human just as much as his victim, subject to the same range of emotions and desires, and possesses the exact same will to survive and continue their life, and as the number of involved players grow, the risk which the attack poses decreases rapidly. If we are to view "death" as a harmful thing and we are to view "safety" as a beneficial thing so as to assert a negative correlation between them, we are to lose sight of the complexity of the issue.They are not mutually exclusive: one may not describe "safety" as a function of the number of criminals you have killed, especially as prisons become increasingly capable of withholding their inmates from the public.

"How do you justify the death penalty?" one may ask one of its supporters, and they may reply "it's simply a matter of justice." How do you define justice? Is justice killing a man simply because of a crime he has committed? If the purpose of government is to extend benevolence to its constituents, and if death detracts from their wellbeing (this assertion is admittedly questionable – it cannot be said that the nullification of experience is actually worse than experience any more easily than it can be said that an pan of lasagna is better than a paper clip), than how may we justify the death penalty? Simply put, we cannot. We may attempt to describe it as a useful deterrent to crime, but in any murder, no matter how passionate or premeditated, the offending party is first emphasizing the potentially positive outcomes of their actions, and likely does not distinguish significantly between a life in prison and ten years in prison followed by death, especially considering the type of prison into which capital offenders are placed; figures that are thrown around as to how many murders have been prevented by a publicized execution are at their core entirely unscientific, as it is impossible to determine the rate of deterred murders via interview, and as they fail to take into account countless variables that may have changed the rate of deaths independently. The problem that an offender who is already at substantial risk for the death penalty has no reason to avoid committing further crimes besides his own conscience is similarly problematic, but fundamentally unquantifiable. In short, if the accused feels that the death penalty is suitable for his or her case, then by all means proceed, as there are no dissenting parties who actually stand to suffer any significant loss in this case, but in any other cases where there are options that ensure public safety while ensuring the wellbeing of the accused within practical constraints, than these options simply must be taken while any clear evidence that the death penalty increases or decreases rates of murders is absent.

Legal precedent

It's necessary to understand the legal precedent regarding the death penalty to understand anything about correcting the situation. There are two sentences at the foundation of the American legal analysis of the viability of the death penalty: "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." and "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," from the Eighth and Fourteenth Amendments to the Constitution, respectively. "Nor" will be taken to mean that whenever one or more of these conditions are satisfied, the government has overstepped its limits. Unfortunately, it's unlikely that the drafters of the Constitution could have come up with something more ambiguous if they had tried. "Cruel," as defined by the Merriam-Webster dictionary, means "disposed to inflict pain or suffering" or "causing or conducive to injury, grief, or pain," whereas "unusual" simply means "not usual, common, or ordinary." Immediately it becomes apparent that within this definition, all government-inflicted punishment would be outlawed via the justification that it imposes suffering onto the accused. This was obviously not the intended meaning, however, as so constrictive of an interpretation would have made it about twenty seconds before being destroyed at the Constitutional Convention. Subsequently, we are forced to infer another qualifier from this clause: "nor cruel and unusual punishments inflicted beyond what reasonable implementation of punishment allows." This interpretation allows more discretion as to the range of punishments as well, unfortunately, and this is exactly what results in the liberal use (relative to other countries, at least) of the death penalty in the United States.

Naturally, to proceed any further, we are forced to examine case law, as much nearly irreversible progress has been made as to the legal interpretation of the Eighth Amendment. The first landmark case on the subject was Trop v. Dulles (356 U.S. 86) in 1958, which declared that the Eighth Amendment was to be interpreted as "evolving standard of decency that marked the progress of a maturing society" The applicability of this case is unfortunately quite limited, as it wasn't even a ruling on the death penalty itself, although it provides some handy precedent for viewing the Eighth Amendment. Subsequently, this was overturned in most applications. The most widely applicable case following that would be Furman v. Georgia (408 U.S. 238), which established that prior beliefs of jurors regarding the death penalty as justification for dismissal was unconstitutional, and more broadly that the death penalty itself may be unconstitutional in the face of widely variable discretion. Racial disparities in the application of the death penalty have always been a concern, but McCleskey v. Kemp (481 U.S. 279) established that unless discrimination could be demonstrated on a case-by-case basis, than these disparities were not grounds to dismiss the death penalty as unconstitutional. The legal fight over the constitutionality of the death penalty is useful in a systematic context, but a distinction must again be made between ethical justifications and legal justifications. Precedent on the death penalty, at best, is ambiguous, and will likely continue to be so in the absence of widespread Congressional support one way or the other in the form of an amendment.

The reality of the death penalty

Now for a more practical view of the subject, the applied death penalty deserves some discussion. The death penalty seems to exist for little purpose other than to quell public outrage at defendants and quell feelings of fear, and while it may not cost nearly as much as terraforming the moon, it is no less unnecessary. Chief Justice John Roberts made an important point once during a speech as to the purpose of the judiciary: to paraphrase him, the purpose of the judiciary, as intended by the drafters of the Constitution, was to ensure that a tyrannical majority could not act outside of the powers that had been allotted to them through Constitutional interpretation. It is no secret that any large population has a tendency to react violently to perceived threats, and it's even more well-known that the success of any given politician depends entirely on his ability to be reelected. While many would cite this as a motivation for politicians to be just and level-headed, at its core it is nothing more than a reason for politicians to follow the sentiments of their constituents. Enterprising prosecutors may seek the death penalty if his or her constituents strongly express an interest in its application, and the few legal safeguards that are in place do nothing but satisfy fears that arise within the public as to the overzealous application of the death penalty: the intuitive safeguards would do things such as raise the burden of proof and employ impartial investigators to actually ensure the sanctity of the evidence presented during trial. While one can point to systematic reversals of the death penalty, the fact that only 7% of death penalty cases are overturned on a factual (as opposed to legal) basis does demonstrate clearly that error in its application is minimal. Therefore the underlying issue surrounding the death penalty is nearly entirely ethical. If we are content to condemn men to death in light of the fact that less cruel punishments with essentially negligible additional cost are available, than we have indeed overstepped boundaries posited by ourselves and the creators of our government: a right to "life, liberty and the pursuit of happiness," after all, is one of the bicentennial ideas that still lingers in the public mind, and it is a matter of great disrespect to mankind itself if we are to continue imposing these punishments. If you care about other people you've never met. I don't.