by Roger Prather

Created on: November 26, 2008

The existence and use of the death penalty in the United States is one of the most controversial issues facing voters and political leaders. Throughout the country, there are influential groups on both sides of the issue, each with compelling arguments. Because there are so many in America arguing both for and against, it is a valid question to ask, "Is the death penalty just or unjust?" Clearly, the death penalty is just in light of history and penological theory, even in light of arguments to the contrary.

The first instance of a codified death penalty is found in the Code of Hammaurabi from the Eighteenth Century B.C. From then on, the death penalty can be seen in every major civilization through history, from Athens and Rome, to Middle-Ages Europe, on up to the Constitution of the United States. The constitutionality of the death penalty is implied by the Fifth Amendment, which guarantees a grand jury indictment for capital offenses and states that no person may be deprived of life without due process. Thus, any argument that the death penalty is unconstitutional is rendered invalid since the death penalty is clearly condoned within the text of the Constitution itself. Thus, there is clearly a precedent throughout history for the people to impose a penalty of death by means of a legitimately constituted civil government. Additionally, in modern times, the death penalty is reserved for the most violent and heinous of crimes, in most cases this being First Degree Murder. There are also other restrictions in place regarding who may not be put to death, including the mentally ill or mentally retarded and juveniles.

Penological theory also provides support in favor of the death penalty. There are four theoretical constructs that govern penology in the United States: punishment, retribution, incapacitation, and rehabilitation. When individuals are found guilty of a crime and sentenced by a court, the intentions of the sentence are contained within these theoretical constructs. The first intention is to punish the offender. Punishment is not to be unduly burdensome or cruel towards the offender, but rather its intention is to convey the serious nature of the offender's crime with the purpose of instilling a sense of responsibility for their conduct. Retribution is closely related to punishment, but instead of being for the offender's benefit, it is more for the benefit of society. The theory of retribution holds that society is better off by punishing offenders

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