Capital Punishment Is Draconian and Wrong. Congress Must Outlaw it Immediately.

Since its inception, the death penalty has been a failure in the American legal body, and state-sanctioned murder is unethical behavior from an ostensible champion of justice in the United States.

Zach Salcido
8 min readJan 18, 2021

“The useless profusion of punishments, which has never made men better, induces me to inquire, whether the punishment of death be really just or useful in a well-governed state? What right, I ask, have men to cut the throats of their fellow-creatures?”

-Cesare Beccaria, On Crimes and Punishments

In the middle of the night on January 15, 2021, Dustin Higgs was executed at the Terre Haute Federal Prison in Terre Haute, Indiana, making him the 13th and final person to be put to death under Donald Trump’s Administration. After two decades in which the Department of Justice did not carry out a single execution, former AG William Barr announced in July of 2020 that an addendum would be adopted by the Federal Bureau of Prisons that would allow the federal government to resume state-sanctioned killings.

Since that addendum was adopted, the Trump Administration, with the knowledge that Joe Biden opposes capital punishment, and has said he will advocate for its removal from the federal code, has engaged essentially in blood sport in a short six or seven month period. Justice Sotomayor, in a recent dissenting opinion that OK’d Dustin Higg’s execution, highlighted the immoral and disgusting nature of Trump’s push to kill as many people on death row as he can before noon on January 20th:

As an infamous facet of the American criminal justice system, capital punishment unsurprisingly has rendered disproportionate consequences to people of color. Black and brown Americans are far more likely to be executed than white Americans, especially in instances where the victim is also white. The surface-level implications of the state granting itself the power to carry out executions are characterized primarily by the inherent racial disparity that plagues the criminal justice system as a whole.

Exercising capital punishment is also enormously expensive. Numerous studies have shown that the median cost of trials that end in execution are in the area of 50% more expensive than trials seeking life imprisonment. Apart from prison abolition(an immensely complex issue worthy of an entirely separate essay), it is an incredibly unwise allocation of resources to seek trials that are by nature expensive and cumbersome. According to Amnesty International, the federal government’s pursuit of capital punishment actively diverts funds from other, demonstrably successful crime prevention and control methods:

We need to ask ourselves why our elected officials consider state-sanctioned murder to be more important than funding schools, public health and infrastructure. The existence of capital punishment within the federal code only bolsters the power of the prison-industrial complex. This crackdown that began after the launch of the failed War on Drugs ushered in a widespread sentiment that we need to be tougher on crime and employ tougher sentencing, which has undoubtedly helped enable the influence and profiteering of the American carceral state. These sentiments have historically been used to disproportionately harm minority communities of color, which is exactly what capital punishment has done. One might even be led to think that these policies did not devolve into racial disproportionality, but rather were intentionally pushed to further enforce the American race-class divide.

The justification for capital punishment on the part of the federal government is some semblance of an argument centered on the prospect of broad social dissuasion to violent crime, as well as a pursuit of justice for the families of the victims. Apart from the obvious reality that state-sanctioned murder, while conceivably favorable for at least some of the families of victims of violent crime, will not bring back these victims, killing Americans guilty of these crimes with methods like firing squads and gas chambers and electric chairs is draconian and immoral(yes, these methods of execution are still legal in some parts of the country). The practice makes our country no better than third world countries like Pakistan or Sudan who also exercise capital punishment, and who the United States certainly attempts to claim moral, political, and legal superiority over.

It is past time for the U.S to reconcile its historically racist legal system and body politic, created by white men to the benefit of white men. That reconciliation begins with the amendment of our demonstrably racist and draconian practice of capital punishment. Our international grandstanding and ostensible moral superiority mean nothing(which was made clear in the aftermath of the storming of the Capitol by white domestic terrorists) when our domestic policy and legal apparatuses are antithetical to all that we preach abroad. Not only does the United States preach democratization, but we also spend millions of dollars to that end, outwardly funding democracy programs in foreign countries. The time to begin to live up to the international example that we attempt to uphold was a long time ago.

There is no substantial statistic or study that demonstrates a concrete linkage between capital punishment and societal-level crime dissuasion as far as I am aware of in the legal literature. And as much as the government might argue that it is the only way to achieve justice in the most severe instances, there is no form of cruel or unusual punishment that brings back any victims of violent crime. An eye for an eye is not the legal position the U.S or any wealthy industrialized OECD country should be assuming.

Much to the chagrin, presumably, of Joe Biden, a president does not have the unilateral authority to render the death penalty unlawful. Of the two ways in which the abolition of capital punishment can be actualized, it doesn’t take a political scientist to conclude that the current 6–3 SCOTUS conservative supermajority will not render a decision to that end. Thus is presented another incredible opportunity, in the wake of a de facto Democratic takeover of the U.S Senate, for the Democrats at the behest of Joe Biden to once and for all abolish the death penalty in this country. A moratorium on all federal executions would not go far enough, as it would only kick the can down the road to whoever inevitably takes power when Joe Biden’s time is up in the Oval Office. In order to truly fix this broken practice, he must use his clemency power on all those on federal death row so that they may be retried for a life sentence. Then he must work with the Democrat-controlled Legislative Branch to end capital punishment with the stroke of a pen.

It remains a sizable mystery as to why Democratic leadership cadre and those who draw up national field strategy for the party still fail to recognize that these are the legislative ambitions that, if actualized, will only help to deliver them a commanding victory across the board in the 2022 midterms. It is incumbent upon Joe Biden and the Democrats in the Congress to avoid the past mistakes of their national strategy arm which oversaw a shellacking in the 2010 midterms under former President Barack Obama. The legislative potential of the trifecta cannot be pried away from the Democrats in 2022 if they are to deliver in any tangible form to the working class of this country.

This issue, along with the continued opposition on the part of the Republican Party to single payer amidst a pandemic and the raising of the minimum wage to $15, are the issues that should be dominating the national messaging of the Democratic Party machine. There is no excuse for not being proactive and understanding the weight of the moment, and the potential for policy implementation that the Democrats can conceivably achieve if they are courageous enough to employ the bully pulpit is substantial. The messaging campaign around flipping Georgia on the part of Stacey Abrams and her organizers serves as a model for winning issues within the Democratic base, which were largely dominated by the $2,000 relief checks that were first pushed by Sanders and other leftists within the party. Time and time again, on the rare occasion that House and Senate Democrats choose to listen to the leftists within their respective caucuses, they win the messaging war and they win elections.

It is not radical to endorse the idea that there are certainly better ways to allocate our own taxpayer funds in a country with crumbling public infrastructure and no universal healthcare system. Dystopian methods of state-sanctioned murder are, of course, far less effective at preventing violent crime than something like the promotion of a healthier economic ecosystem with better job opportunities. The disadvantaged socioeconomic conditions(which black and brown Americans are almost always more subject to)in which people tend to devolve into both petty and violent crime can be solved. The reallocation of massive wealth hoarding and removing the corporatist stranglehold on our national policy are only a few barriers that must be overcome to truly improve the quality of life for those at the bottom of the American socioeconomic structure.

It has been far too long that the American federal government and a sizable portion of the American electorate has endorsed the Reaganite approach to criminality, thinking that harsh crackdowns on petty crime and prosecutorial stringency will solve the very socioeconomic conditions that cause people to devolve into petty and violent crime in the first place. Our priorities must be rearranged, and the systemic issues that have burned holes in the American sociopolitical fabric must be mended. As far as the criminal justice system goes, that starts with abolishing capital punishment with an act of Congress. There is no excuse to do nothing.

With the current composition of the Supreme Court not looking like it will be doing the left party any favors anytime soon, Joe Biden mustn’t back down from his signaling that he will work to remove it from the federal code. A lot of work must be done before any bill abolishing the practice reaches his desk, but that by no means absolves him of doing everything in his power to fix once and for all the infamously racist and ineffective exercise of capital punishment. As for Speaker Pelosi and newly-crowned Senate Majority Leader Chuck Schumer, the people of this country delivered a Democratic president, a de facto Democratic Senate, and kept the House in the hands of the Democrats. There is no excuses left. It’s time to get to work.



Zach Salcido

Oregon Law student. Interested in writing about politics, public policy, and law.