Legal Traditions and the Death Penalty

While other systems have existed historically there are four generally accepted legal traditions found throughout the world today, each with its own roots and goals.  The Common Legal Tradition has roots in Roman Law and is found among many nations including the United States, England, Australia, India as well as other countries that were once part of the British Empire.  Focusing primarily on equity, the Common Legal Tradition maintains legal precedent, fairness, civil rights and innocence until proof of guilt beyond a reasonable doubt among its key foundations.  The Civil Legal Tradition, like the Common Legal Tradition, can also trace its roots to Roman Law with the addition of Canon Law from the Vatican adding to its dominant influences.  It is found among many European nations and others with histories tracing back to French and Spanish colonials such as Canada and Mexico.  The Civil Legal Tradition also focuses on equity and fairness but relies more predominately on established codified law than the principle of Stare Decisis and additionally the power of the state over the power of the individual.  The Socialist Legal Tradition, found in communist countries such as the old Russia, China and North Korea, focuses on the needs of the state above the needs of the individual and the use of laws to educate and achieve desirable ends.  While the Socialist Legal Tradition once believed that the need for law would eventually end in communistic societies, changes have begun within the last few decades among many Socialist nations to incorporate more formalized court systems such as are found in countries using the Common Legal Tradition (Reichtel, 1999).

The death penalty remains as much a debate on the international theatre as it does within the United States.  Historical arguments for the death penalty include excluding outsiders from society, cleansing a population of a problem, maintenance of social order, delegitimizing a former social order, posthumous delegitimation, degrading an offender, induction to remorse, repayment to the victims of crime, therapy for the victims of crime and a form of educational value to a society.  More modern arguments frequently cited in the United States for the death penalty include the completion of closure for the victims and society after a serious offense and the availability of the death penalty as deterrence to crime (Wills, 2001).  Comparatively, common arguments against the death penalty include the barbaric nature of executions, the relatively small number of democratic nations that use the death penalty world-wide, the potential for inadvertent execution of a person actually innocent of the alleged criminal offense, the cheapening of the value of human life, the potential for application of the death penalty in a discriminatory manner, religious citations and the opinion that the death penalty is effectively government-sanctioned murder (Koch, 1985).

Our system of criminal justice in the United States frequently cites a number of correctional goals including deterrence, incapacitation, rehabilitation and retribution.  In consideration of deterrence, a number of arguments have been made on both sides of the death penalty issue with proponents of the death penalty arguing that the threat of the ultimate punishment will deter many people from committing capital offenses while detractors of the death penalty note the minimal, if existent, decrease in the frequency of comparable offenses between states that utilize and do not utilize capital punishment.  The correctional goal of incapacitation certainly embraces the death penalty, in fundamental concept if not outright, as capital punishment permanently removes executed offenders from the community and thus completely reduces their future criminal opportunities.  The concept of retribution allows for and, among proponents, embraces the death penalty with an “eye for an eye” mentality.  In stark contrast, the correctional goal of rehabilitation would not embrace the death penalty as the punishment does not allow for any possibility of change within the behavioral patterns of the offenders – only their death.

Those who shoulder the burden to carry the concept of capital punishment forward into the future argue that the death penalty is the ultimate deterrence to the most heinous criminal offenses, believing that it must be the death penalty that prevents the majority of the worst offenders from becoming true psychopaths, from becoming outright sociopaths, from murdering police officers, from murdering for hire and from murdering children.  Or is it?  The death penalty is no longer today what it was in the not so distant past of history – no longer is the condemned degraded, tortured and brought to his or her final and ultimate end in public forum for society at large, or small, to view, fear and remember for the remainder of their lives as a lesson to inhibit their own potential criminal behavior patterns.  In the Constitutional ideals against of cruel and usual punishment those condemned to death are sheltered away for years during the tedious and expensive processes of lawfully mandated appeal, likely in most cases to be forgotten to all but a few before their death is certified in a small, private chamber away from the watchful eyes of the press and public.  In many states the method used for execution is no more interesting than an accident at surgery, a slip of the plunger that enters an excess of chemical anesthetic that the body simply cannot survive and overcome.  The true psychopath and sociopath are not swayed or deterred by the thought of death; in fact, many likely do not fear their own demise and end due to their particular psychological phenomenon.  The cop killer often becomes a criminal hero among his fellow incarcerates and frequently a martyr in his own mind once his death has been certified in the annuls of history.  The murderer for hire simply no longer has an income or the ability to continue his tradecraft that once was more commonly accepted and remains today acceptable in some cultures when his targets are secretly sanctioned by government officials.  Yet we continue to argue that this sanitized, privatized and routine end to the life of a killer is a deterrent to the killer himself all the while realizing that we cannot deter him from the crimes he has committed, we can only deter with finality the crimes that he may yet impose upon the world.

A more empirical argument against the death penalty that has become more pronounced in recent years involves comparing the financial costs of the death penalty to lifetime incarceration as applied in the United States.  The California Commission on the Fair Administration of Justice noted a near 90% reduction in overall state costs by removing the death penalty and replacing it with lifetime incarceration.  The Kansas Legislative Post Audit estimated that the cost of a death penalty case was 70% higher than the cost of a comparable lifetime incarceration case.  A Tennessee study found a 48% increase in state costs for trials involving the death penalty while a Maryland study determined that death penalty cases can cost as much as three times as a non-death penalty case.  Amnesty International and other organizations argue that the financial savings that could be achieved through the elimination of the death penalty could be resourced to mental health treatment, substance abuse treatment and victim services (Amnesty International, 2011).

While this researcher fully identifies with the finality and retributive aspects of capital punishment and once fully supported the death penalty, the reality shown by empirical and qualitative analysis shows that capital punishment has far greater emotional satisfaction than logical foundation.  It is the opinion of this researcher that a shift away from the financial burdens of the death penalty to lifetime incarceration without the possibility of release and the reallocation of released funds to mental health and substance abuse treatment programs would have a far more significant and positive impact on society at large and may, through prevention and treatment methodologies prioritized over enforcement and punitive strategies, ultimately reduce the occurrence of capital level offenses.


Amnesty International.  (n.d.).  Death penalty cost.  Retrieved on Februuary 27, 2011, from

Koch, E.I.  (1985).  Death and justice: How capital punishment affirms life.  Current Issues and Enduring Questions 8th Edition (pp. 601-605).  Massachusetts: Bedford/St. Martin’s.

Reichtel, P.L.  (1999).  Comparative criminal justice systems: A topical approach.  New Jersey: Prentice Hall.

Wills, G.  (2001).  The dramaturgy of death.  Current Issues and Enduring Questions 8th Edition (pp. 626-636).  Massachusetts: Bedford/St. Martin’s.

© 2011 – 2014, Jeremy Liebbe. All rights reserved.

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About the author

Jeremy Liebbe holds a Master of Science in Forensic Psychology, holds a Bachelor of Arts in Police Science, and is currently completing a Doctorate of Philosophy in Psychology. He has over a decade of law enforcement investigative experience as a detective sergeant with experience including narcotics, crimes against children, and homicide investigations. As a result of his expertise in complex criminal investigations and forensic mental health Jeremy has earned numerous commendations, lectured throughout Texas and in several other states, authored and co-authored over a half dozen published papers, and has provided expert testimony in over a dozen felony trials.