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Resolved: A just society ought not use the death penalty as a form of punishment

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 NFL LD Topic
 Date Used  09-10, 2007

This topic is the United States' National Forensic League's Lincoln Douglas Topic for September and October 2007. This document is a communal workspace for debaters and coaches interesting in working on it. The discussion tab, above, can be used for asking and answering questions on this topic. People can also submit case for comments. Click here to see a sample case from a different topic. To submit your own sample case, you can click on the edit tab from an existing case, and then copy the case. Create a new document with your case and insert a link to it below under sample cases.


This is an oddly worded topic. It is hard to imagine what one would use the death penalty as other than as a form of punishment. Indeed, for most people, "penalty" and "punishment" are synonymous. However, while the NFL wording committee has chosen awkward phrasing, there is nothing about this wording that should make debates on this topic anything other than classic death penalty debates.

The classic defense of the death penalty comes, ironically, out of the natural law tradition. The idea is that people have a natural right to life that they forfeit when they knowingly commit certain heinous crimes. That the miscreants understands what they're doing is wrong is an important qualifier to this argument, though it's worth noting that it took the United States Supreme Court a good deal of time before it finally decided to prohibit the execution of the mentally handicapped.

Though historically there have been a long list of crimes subject to the death penalty, today few death penalty supporters other than members of the Taliban support the death penalty for actions that do not result in the death of innocent people. The argument usually runs that it is just to take the lives of those responsible for the death of others. Some even go so far as to argue that any punishment short of death would be unjust. Those who kill, they argue, ought to be killed. Of course, this "eye for an eye" theory of justice is not practiced in other parts of the law: rapists are not sentenced to be raped. Nonetheless the moral symmetry of killing the killer remains attractive to many people. Often, proponents of the death death penalty will ask: "If someone were to kill your loved one, wouldn't you want to see that person dead?" A desire for vengence is a normal human emotion and it is likely that many people would feel better knowing that a vicious killer had been killed. Whether it is just to satisfy people;s desire to see a criminal suffer the same fate as their victims victims is open to debate.


A Just Society

Many rounds will likely end up being debates over the definition of a just society. Political philosophers and theorists have debated for centuries what constitutes a just society and it's unlikely that this issue could be settled during a forty-five minute debate. The wording committee, in all likelihood, included the phrase "a just society" to focus the debate on the issue of the death penalty itself as opposed to problems that have arisen in applying it. It is doubtful, however, that the division between theory and practice will be easy to sustain, though a creative negatives may try. The wording committee may have hoped to focus the debate on the narrow question of whether it is moral for the state to kill a person who is, without a doubt, guilty of the most heinous of crimes, rather than have the debate focus too much on the practical problems that arise when trying to make the death penalty law. However, since the topic asks whether a just society will use the death penalty, the question of whether a just society should entrust its government with the authority to use the death penalty remains subject for debate. A potentially very strong argument for the affirmative is that the a just society simply would not entrust its government with the authority to kill its prisoners. That their may be people who nay have forfeited their right to life, the affirmative could argue, is besides the point. The problem, the affirmative would contend, is that just societies recognize the importance of limited government and the government's inherent fallibility.

James Madison, in the Federalist No. 51 famously stated that:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

A just government, the affirmative should posit and and a fair minded negative accept, is not a society of angels but a society of people. Some negatives may try to argue that a just society is a society governed effectively governed by angels. An affirmative can fairly respond that it's unfair to assume that justness can only be attributed to the government in a just society. This is particularly true given that one could reasonably argue that a just society would be a democratic one in which people are only asked to obey laws they have given to themselves. If the distinction between the governors and the governed is lost, it becomes difficult if not impossible to argue that only the government and not the citizenry can be assumed perfectly just.

This raises the question of whether a just society, knowing that it's government would be a government not of angels but of men, would need to be checked in its authority and limited in its power. Affirmative can, in this way, bracket the question of whether the death penalty is inherently just and focus, instead, on the question practical question of use. In this instance, the American experiment with the death penalty become particularly informative. While no one would argue that America is a perfectly just society, it has struggled now for decades to find a way to practice the death penalty justly. A clearly exasperated Justice Harry Blackmun, writing in dissent of the Supreme Court's refusal review a Texas death panalty case, emphatically declared that he would no longer rule in favor of the death penalty:

I no longer shall tinker with the machinery of death. For more than 20 years I have develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all." (Callins v. Collins)

Though Justice Blackmun holds open the possibility that the Court might one day figure out a way to insure the just application of the death penalty, he clearly does not see this as likely and, in all likelihood had come to question the morality of the death penalty itself. Some of those who oppose the death penalty in the United States, arguing that the Constitution is a living document and that the death penalty that may have been constitution when the Constitution was first ratified had become unconstitutional as time have changed. Blackmun, though, does not seem to be arguing along those lines. He seems to be arguing that in practice the state and federal government have failed to find a just and fair way to implement the death penalty. Negative might try concede the practical problems of implementing the death penalty and try separate those from the question of the morality of putting a criminal to death. An affirmative who focuses on the importance of limited government to a just society, who confronts a negative who concedes the practical problems with the death penalty, will need to argue that since the topic asks about the use of the death of the penalty that the debate cannot ignore problems of use. To preserve clash in the round, however, the affirmative may also want to argue that its senseless to argue to that a punishment that a just society could not "develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability" in practice ought not be used.

Death Penalty

The death penalty, also known as "capital punishment," is the execution of a convicted criminal by the state as punishment for a crime or number of crimes.

Form of Punishment

It ought not be necessary for either side define "form of punishment," but given that there is always some debater out there who will figure out an abusive way to define a term, it is probably best to offer a definition. A "form of punishment" can be defined simply as a type of penalty imposed for wrongdoing.


The word "ought" is commonly used to indicate "moral obligation or duty." It is sometimes distinguished, particularly in formal academic debate, from "should.".

Debate topics are often, though misleadingly, divided into three categories: fact, value and policy. Some strict adherents to this taxonomy argue that if a topic includes the word "should" that it should be understood as a question of policy. "Ought" is what identifies a topic as a proposition of value.

This distinction between "ought" and "should" is not reflected in ordinary language: most people simply use the words interchangably.

However, given that this a topic for formal devate within the context of an American debate community that still widely recognizes a distinction between "should" and "ought," an interesting question arises: can the negative consistently and persuasively maintain that, in practice, a just society should not use the death penatly but that, in principle, it not morally impermissable for a just society, under certain conditions, to employ it. This, in fact, was something like the line of reasoning offered in the majority decision in Furman v. Georgia in which the United States' Supreme Court effectively ruled capital punishment unconstitutional, a decision the Court was later to reverse.

A negative that argued along these lines could concede all the practical problems with the death penalty and could even argue that that most every existing just society should consider the death penalty bad public policy. What the negative would be arguing is that under certain conditions-conditions that are perhaps unlikely to occur-that it would be morally acceptable for a just society to adopt the death penalty. Such a negative could concede that the United States should abolish the death penalty, but argue that this is because the conditions that would allow for the just use of the death penalty do not exist in the United States.

The affirmative's burden, negative would argue, is to prove that the death penalty is categorically wrong: not just wrong here and now or under certain conditions, but inherently wrong.

Indeed, many negatives will likely run a weak version of this case. They will try to argue that since the resolution refers to a "just" society that affrmative can't argue against the death penalty on the grounds that it is often inflicted in an arbitrary or discriminatory manner. These negatives will attribute "justness" only to the government of the society. The citizens of a just society, they will argue, will continue to commit crimes that merit death, but the government they will insist will be free of injustice and capable of handing out death sentences in a fair and equitable manner. The problem for this negative will be explaining why justness is attributed only to the government.

The problem for the negative that might adopt a stronger version of this line of reasoning, is making sure the judges understand this distinction between "ought" and "should" that is not commonly made. Many judges might consider it splitting hairs when a negative tries to argue that the death penalty is generally wrong in practice but is acceptable in theory. The benefit of this strategy, however, is that it doesn't force the negative to argue that a just society ought or should have the death penalty. All the negative would have to argue is that a just society could conceivably justly use the death penalty as a form of punishment.

A second, related issue with the definition of "ought" concerns its juxtaposition in this topic with the word "not." In crafting this topic, the NFL wording committee chose not to observe a commonly accepted norm in topic writing: the topic puts the burden on the affirmative to prove a negative. The reason they chose to do this, I suspect, is that they realized the affirmative would have a tough time with this topic: "A just society ought to use the death penalty as a form of punishment.". Affirmative definitely would have a tough time explaining how it is morally obligatory to use the death penalty and how, as a result, almost every developed nation in the world that has abolished the death penalty has done so immorally.

The burden on the negative, then, probably should not be understood as being to prove that every just society ought to use the death penalty but, rather, simply to prove that under certain conditions it would be morally acceptable for a just society to use it. Negative should be sure to point this out if need be.

Values and Criteria

Any of the usual overly abstract Lincoln-Douglas value premises can safely be employed on this topic: justice, morality, dignity, etc.

Given that the topic stipulates that we're discussing a "just" society, "justice" is a rather obvious, though not particularly enlightening, value premise. If either side chooses justice as a value premise, it will be important to offer something a little more than "giving each his or her due" as a value criterion. What justice demands that a society do when confronted with heinous crimes is anything but obvious. The negative may want to explore whether weighing arguments using a utilitarian calculus might prove effective, though this might overly discount retribution as a potential justification for the death penalty. The idea that some crimes merit certain punishments, regardless of the consequence on society of inflicting the punishment, is not easily explained using the language of utility.

Another problem that the negative might confront in choosing a utilitarian value criterion will be confronting the intuitive sense that many people have that it might not make sense to value individuals in the purely egalitarian way that most utilitarian theories require. The presumption of innocenceis widely considered a hallmark of a just society. Most people would agree with some formulation of Blackstone's ratio, that it is "better that ten guilty persons escape than that one innocent suffer." To justify this ratio, the utilitarian would have to show that somehow the pain and suffering of one innocent person outweighs the harm to society of so many guilty people going free. This might prove difficult to do. Similarly, there is a line of cross examination that affirmative can pursue if the negative argues in favor of using the death penalty to deter or prevent crime that can embarrass the utilitarian negative. If all a just society needed to do was count up the numbers of lives that putting a person to death could potentially save, the affirmative might question, would it really matter if the person executed were in fact guilty? Suppose, for the sake of argument, that the police realize that one of two brothers undoubtedly committed a crime, but are utterly unable to determine which of the two is the guilty party. The two brothers, loyal to one another, steadfastly refuse to admit which of them is guilty and which is innocent. With it certain that one of the two is undoubtedly guilty, the state decides, considering that the brother who is not guilty is not cooperating, to implicate both brothers and execute the two of them. They reason that this will act as a deterrent to other criminals and that in the end more lives will have been saved by killing the two brothers rather than letting the two live.

Another obvious value premise is "life." Obviously human life is very valuable commodity and ought not be disposed of without good reason. If the affirmative offers a value premise of life and a criterion of best protecting life, and negative accepts them, a relatively straightforward debate should ensue. The affirmative will argue that the death penalty is an ineffective means of preserving or protecting life, the negative can respond that this is false. These debates will likely be won by the debater with the better research skills. There has been an enormous amount of research done on the death penalty. The problem, of course, is that it is difficult if not impossible to determine what inspires people to commit crimes and what prevents them from committing them.

If the affirmative offers a value of life, but argues that because life is a highest value it is never right for the state to kill, a number of different debates might ensue. Negative will probably want to question a criterion to make sure the affirmative isn't trying to get away with the "it is necessary but not just" line of reasoning to claim that it might be necessary in some cases to use the death penalty but that when this is true the society in question is not just. That's just begging the question. Thankfully the topic does put a burden on the affirmative of proving that a just society ought not use the death penalty, so it won't be possible for the affirmative to argue something along the lines of "the death penalty can be used in some cases, but this doesn't make it just."

Negatives will need to consider how important the argument for retributive justice or lex talionis will be for their case when deciding on what value structure to accept for these debate. The foundation of any theory of retributive justice is that it is morally acceptable for a society to punish a person for having committed a crime regardless of whether this punishment achieves any other goals. Theories of retributive justice are deontological as opposed, for instance, to purely consequentialist, utilitarian theories of criminal justice. To the extent that the negative wants to rely on retribution as a justification for using the death penalty it will be important not accept a consequentialist value premise or criterion. The negative who wants to argue for retribution benefits in not having to prove that the death penalty somehow protects society more than life imprisonment would, but does need to offer a value structure that would explain why a penal system based on the Old Testament maxim of an "eye for an eye, a tooth for a tooth" is a moral one. Mahatma Gandhi remarked that "an eye for an eye and a tooth for a tooth and the whole world would soon be blind and toothless." The negative needs to explain why it would be just to kill someone even if society benefits in no tangible way from the killing.

One option that the affirmative has, in choosing a criterion for the round, is to forego a value criterion and, instead, to present criteria that justify the intentional taking of a human life. Affirmative can structure a case in two parts: first, a description and justification of criterion under which it would be justified to take a life and, second, an explanation of how the death penalty does not fit these criterion. A state can kill, the affirmative might argue, when it is necessary to protect the lives of innocent people. The negative might claim that the only way to be absolutely sure that a killer will not kill again is to impose the death penalty. The affirmative can respond by arguing that the only way to insure that state won't itself kill an innocent person is to prohibit the state from killing people other than when there is an immediate and otherwise unavoidable threat to the lives of innocents. A convicted and imprisoned murderer is not, the affirmative will argue, does not constitute an immediate threat to society. Similarly, the negative might offer criteria that justify the taking of a life and showing how a society, when those criteria are met, would be justified in using the death penalty. Negative will need to be careful to offer criteria that do not make it seem as using the death penalty is morally required of a just society. Such a burden is probably to heavy for the negative to carry through a round.

Affirming the Topic


Looking at the list of countries that continue to employ the death penalty, one can't help wondering if the resolution hasn't been proven true in practice if not in theory. The list of countries that has the death penalty is something of an international rogues' gallery. The United States is clearly not in good company. This is something that Associate Justice Kennedy has pointed out in some of his recent opinions, much to the chagrin of Associate Justice Scalia. Of course, that the vast majority of what are usually described as just societies have abolished the death penalty does not prove the death penalty inherently immoral. Nonetheless, it is definitely worth wondering why so many countries have abandoned the practice of execution.

One could argue that in a truly just society there would be no need for the death penalty since people would not commit crimes worthy of the death penalty. However, it is too much to assume that a just society is one in which no citizen ever commits heinous crimes. Fyodor Dostoevsky supposedly wrote that a "society should not be judged on how it treats its outstanding citizens but by how it treats its criminals." A just society is one that treats its citizens humanely, it is not a society of angels that has no criminals. Similarly, for much the same reason that in a just society no no citizen commits a crime, it would be wrong to assume that a just society is one whose government never acts wrongly or unjustly. Plato may have imagined that the ideal society would be one ruled by philosopher kings, but we have long since abandoned the ideal of enlightened despotism as the highest form of government. For this reason, a just society would be one which recognized the fact that neither the governors nor the governed could be trusted to always act justly. Even a just society governments will make mistakes. This is perhaps the most compelling argument against the death penalty.

Killing is not always wrong. Weak affirmatives might try to argue that killing is always wrong and that therefore the death penalty is wrong. However, few reasonable people really believe that killing can never be justified. Surgeons attempting to save the lives of their patients sometimes are forced to perform procedures on their patients that carry with them the risk of death. A patient who dies on the operating table at the hands of a skilled surgeon is not considered a murder victim, the surgeon not a common criminal. The patient may have died as a direct result of the surgery, but the surgeon has committed no crime. Similarly, the policeman who is forced to shoot a deranged gunmen threatening children is considered a hero when he shoots the gunmen before the gunmen has had a chance to slaughter the children. Further, few people consider it a person's duty to die rather then defend oneself against violent attack.

What the affirmative can argue, however, is that what is always wrong is killing for no good reason and that there is no good reason for the death penalty.

The strongest argument in favor of the death penalty, the affirmative has to concede, is that it is the only way to completely insure that a murderer will never strike again. Indeed, no one could guarantee that a murderer whose life was spared could never potentially kill again. The burden, then, on the affirmative is proving that a just society would take the risk of a murderer killing again rather than permitting its government to take the life of the murderer.


Devalues Life


Execution is, in simplest terms, state-sanctioned killing, and it devalues the respect we place on human life; how can we say that killing is wrong if we sanction killing criminals? More importantly, the whole principle is outweighed by the proven risk of executing innocent people. 23 innocent people were executed in the USA in the 20th century. The avoidable killing of an innocent person can never be justified, in any circumstances.


A just society cannot sanction the loss of innocent life. For that reason, it would allow its police force to use deadly force when necessary, and would fight in a just war. There are arguably even times when refusal to use deadly force in order protect the lives of innocents would be morally unacceptable. For this reason, it is not enough to say that because state sanctioned killing is wrong that the dealth penalty is wrong.

If a society chooses not to execute its most dangerous members, it risks these people killing again. The risk of innocent people being killed exists on both sides of the topic. It is wrong for the affirmative to assert that the risk of innocent lives being lost exists only when a society uses the death penalty. It would be difficult if not impossible to determine whether more innocent lives are risked on either side of this topic. Unless the affirmative could prove that a society that employs the the death penalty will always end up killing more innocent people than it saves, the death penalty cannot be said to be inherently immoral. So long as a just society reasonably believes that using the death penalty will protect human lives and is shown no evidence to the contrary, it could justly use the death penalty.

Promotes Killing


Higher execution rates can actually increase violent crime rates. California averaged 6 executions a year from 1952 to 1967, and had twice the murder rate than the period from 1968 until 1991 when there were no executions. In New York, from 1907 to 1964, months immediately following an execution showed a net increase of two murders - an average over a 57-year period. [SOURCE?]


The first piece of evidence doesn't really prove anything. When there is more crime, there are more convictions. The fact that there was a higher murder rate during those 15 years EXPLAINS why there would need to be more criminal executions. The California statistic doesn't show that the increased murder rate resulted from the increased execution rate, rather than the other way round.

Bias and Discrimination


Implementation of the death penalty, particularly in America, suffers from social or racial bias and in fact be used as a weapon against a certain section of society. In the USA nearly 90% of those executed were convicted of killing whites, despite the fact that non-whites make up more than 50% of all murder victims. [SOURCE?]

How can discrimination be "corrected"? The dead cannot be brought back to life. If the State uses the death penalty in a discriminatory manner, there is no way to retroactively right this wrong. It would be wrong to go back and kill more people of one race to somehow balance the scales of justice.

Even in a just society, discrimination is bound to occur. A just soceity is not a perfect society. Knowing that it could never have a perfect system of criminal justice, and that discrimination is likely to occur, a just society would refrain from using the death penalty.


If and when discrimination occurs, it should be corrected. Consistent application of the death penalty against murderers of all races, and in cases where the victims were of all races, would abolish the idea that it can be a racist tool. This could be done by making it mandatory in all capital cases.



Capital punishment costs more than life without parole. Studies in the US show that capital cases, from arrest to execution, cost between $1 million and $7 million. A case resulting in life imprisonment costs around $500,000. [CITATION FOR THE STUDIES?]


While these statistics are dubious at best, this argument deserves no response. Justice isn't up for sale to the lowest bidder.

Potential Abuse


Defendants who are mentally incompetent will often answer "Yes" to questions in the desire to please others. This can lead to false confessions. Over 30 mentally retarded people have been executed in the USA since 1976.




By executing criminals you are ruling out the possibility of rehabilitation - that they may repent of their crime, serve a sentence as punishment, and emerge as a reformed and useful member of society.


Negating the Topic


One of the things to consider while moving ahead with the negative is that the resolution specifies that the debate is taking place within the context of a just society. This could be helpful defensively for the negative when the aff makes arguments about how the death penalty can be misapplied or unfairly applied (i.e. it targets minorities unfairly) since that would presumably not be a problem in a just society.




The principle of capital punishment is that certain murderers deserve nothing less than death as a just, proportionate and effective punishment. There are problems with the death penalty, but these are with its implementation rather than its principle. Murderers forgo their rights as humans at the moment when they take away the rights of another human. By wielding such a powerful punishment as the response to murder, society is affirming the value that is placed upon the right to life of the innocent person. Many more innocent people have been killed by released, paroled or escaped murderers than innocent people executed.


There are many arguments rolled into that last box. First of all, if the death penalty is a proportionate and effective punnishemtn for someone who commits 5 murders, wouldn't we need a harsher sentence for people who commit ten murders? Where do we go beyond that? The inherent flaw in proportionate and effective arguments is that it could also be used to justify torturing criminals or any other heinous penalty Secondly, locking someone away for life also reaffirms that the criminal has lost their rights. And third, seeing as their has been no fully funded investigative study into those executed, how can we know how many were innocent?



Capital punishment is 100% effective as a deterrent to the criminal being executed; that killer cannot commit any more crimes. As a deterrent to others, it depends on how effectively the death penalty is applied; in the USA where less than 1% of murderers are executed, it is difficult to assess the true effect of deterrence. But for example, a 1985 study done by Stephen K. Layson of the University of North Carolina showed that 1 execution deterred 18 murders <ref>Stephen K. Layson, “Homicide and Deterrence: A Reexamination of the United States Time-Series Evidence,” Southern Economic Journal, Vol. 52, No. 1 (1985), pp. 68–89.</ref>


This would seem to justify killing every criminal if each execution saves 18 lives. How could the researcher decide this stat? Second, if a just society would be compelled to use the death penalty as long as it deters, it would be undermining the judicial system in that there would be no need for one, if crime rates are rising, a just society only needs to kill a person to stop it. This also means we are using our citizens as tools to achieve a certain goal which in no way, can be justified.



Opponents of the death penalty prefer to ignore the fact that they themselves are responsible for its high costs, by causing a never-ending succession of appeals. Prisons in many countries are over-crowded and under-funded, and this problem is made worse by life sentences or delayed death sentences for murderers. Why should the taxpayer bear the cost of supporting a murderer for an entire lifetime?


How are opponents of the death penalty to blame. Capital cases cost more on average than housing a criminal for life, because criminals are motivated to make frivolous appeals that delay their execution. Why should the taxpayer pay more per criminal when they could pay less?

Argument #5


Different countries and societies can have different attitudes towards the justifiability of executing mentally incompetent or teenaged murderers. If a society is against such executions, then in cases where they happen it is a problem with the implementation of capital punishment. For opponents to seize on such cases is to cloud the issue; this is not an argument against the principle.


How is this an argument?

Argument #6


Some criminals are beyond rehabilitation; it may be that capital punishment should be reserved for serial killers, terrorists, murderers of policemen and so on.


For these people, what is the benefit of the death penalty versus life without parole?

Sample Cases

  • Leslie Ye's Case.

Further Reading

See also

External links

Resources opposing capital punishment

Resources favoring capital punishment

Religious views on the death penalty

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