By: Louis Gallegos

Last year, eleven people were executed in America by their state or federal government. This is actually the lowest figure in three decades, due to logistical challenges caused by the COVID-19 pandemic as well as dwindling support for the death penalty. Still, the death penalty remains a current and legally acceptable form of punishment in the United States. Since 1973, 1543 people have been put to death in America. In that same time frame, 186 people have been exonerated of the crimes for which they were placed on death row. As of January 2022, 2,436 people are on death row across the country. Given these statistics, it is easy to see why many express concerns that innocent people may continue to be executed if the death penalty remains in its current state. There are at least 68 organizations in the country which are dedicated to the exoneration of innocent people, including many on death row. These organizations do a great deal of work in challenging the fundamental unfairness of the death penalty. However, centering the discussion against the death penalty around the potential innocence of people on death row misses the fundamental reasons for why many believe the death penalty is unjust: even truly guilty people should not be put to death at the hands of their government.

Activism against the death penalty is generally framed around the various flaws in the application and administration of our country’s death penalty system. One such issue is the inadequate legal representation many death row inmates had at the time of their trial. Another is racial bias in death row sentencing, which many trace back to origins in slavery and racial inequality. Perhaps the most prevalent argument against the death penalty is the potential innocence of people sentenced to death. Each exoneration of a person on death row serves as a reminder that innocent people may have been wrongfully executed in the past.

Still, what does it mean for someone to have been wrongfully executed? The implication of framing the death penalty around the concept of innocence is clear. If an execution is wrongful because the person was not actually guilty of the crime for which they were convicted, then an execution should be acceptable if the person were guilty. Wrongful convictions can and do still occur, but the advent of new technology and increasing awareness of systemic biases can reduce the likelihood that these convictions happen in the future. A large portion of exoneration cases involve testing previously unidentifiable genetic evidence with modern technology. However, it is unlikely that future cases will involve evidence that cannot be accurately tested at the time of trial. Although convictions of innocent people occur, these convictions make up a relatively small portion of the total number of death penalty cases. It is possible to imagine a system in which every person is given a truly “fair” trial. Under this system, there will be few to no innocent people found guilty of capital crimes. If the primary argument against the death penalty is innocence, then the argument dissipates when innocence is no longer an issue.

The issue with framing death penalty activism exclusively around the various flaws in its administration is that these flaws can ultimately be remedied in the future, even if they have not yet been so. Modern technology greatly reduces the risk of innocent people being found guilty. Increased funding to provide adequate representation to the most vulnerable suspects can assuage concerns about the death penalty targeting only those without the financial resources for legal assistance. Increasing awareness of systemic biases and active steps to combat racial injustice can reduce the unequal application of the death penalty. Even if all these issues are miraculously remedied, the death penalty would still be unjust. Instead of focusing on the flaws of the death penalty system, activism against the death penalty should recognize that the death penalty itself is a flaw of our criminal justice system.

The death penalty represents state-sanctioned killing of citizens. There is no real justification for it other than retribution against those who have committed heinous crimes. Although deterrence is often cited as justification for the death penalty, states that employ the death penalty often have higher homicide rates than states that do not. There are compelling constitutional arguments against the death penalty, such as due process concerns and the constitutional prohibition on cruel and unusual punishment. Even if the death penalty were consistent with the constitution, the government should still take affirmative steps to change the law to prohibit it. Society should respect the value of life, even the lives of people guilty of crimes. Government’s primary purpose is to provide order and structure for society. Part of this is achieved through the example and values that the government sets for society. A government which freely kills its own citizens through the death penalty does not display a respect for the value of life. If the government cannot show a respect for life, how can it expect its citizens to respect life?


Louis is currently a 2L at the Sandra Day O’Connor College of Law at Arizona State University. He graduated from the University of Arizona with a B.S. in Psychology and a B.A. in East Asian Studies and Linguistics. His legal interests include criminal justice and the relationship between intellectual property law and social justice. His personal interests include record collecting, video games, and traveling.