Benjie Harthun | Spring 2025
Is death cruel and unusual? The constitutionality of the death penalty has been a highly contentious issue in the American legal system for most of the country’s history. The idea of death as punishment for a crime has existed for multiple millennia. However, politicians and the general public still debate over its morality and legality today in the United States. Legal debates surrounding capital punishment typically concern whether it violates the 8th Amendment in the Bill of Rights, which prohibits cruel and unusual punishment. And while legal and moral debates about the death penalty are plentiful, the many economic consequences of capital punishment often go unnoticed. Many Americans may never directly face the ethical and political consequences of the death penalty, but its indirect economic implications affect large portions of the population.
Throughout the history of the United States, the death penalty traditionally has been an issue left to the discretion of each state. Some states moved against the death penalty early on; Wisconsin became the first state to fully abolish capital punishment for all crimes when it became a state in 1848, and other states soon followed suit. The issue rose and fell in popularity throughout the rest of the 19th and most of the 20th century until 1972 when it faced its first major federal hurdle. That year, the Supreme Court ruled in Furman v. Georgia that the statutes for imposing the death penalty were too arbitrary and therefore cruel and unusual. This decision effectively suspended the death penalty in the 40 states that still allowed it, but this wouldn’t last long. In 1976, in Gregg v. Georgia, the Supreme Court reversed itself, holding that the death penalty was constitutional and allowing new death penalty statutes in several states. Since then, several states resumed the use of the death penalty, and executions have occurred every year since 1980. Among states that do use the death penalty, implementation varies; each state has control over the logistical details of executions and, most importantly, the method of execution.
The methods used to execute a condemned person have evolved drastically over time (Death Penalty Information Center 2019). Each method varies widely in cost and perceived morality, but every method comes with issues that can result in the prisoner not being executed. For the 18th century and most of the 19th century, hanging was the most popular method of execution. This method was very inexpensive, only requiring rope and a platform, but had many complications. As is the case with all methods of execution, death is supposed to be instantaneous. However, even the slightest issues with the length of the rope or the height of the platform could result in a slow, excruciatingly painful death. Death by hanging was mostly phased out by the early 1900s, but the last hanging occurred in Delaware in 1996. Execution by firing squad has seen sporadic usage in U.S. history and is still legal in four states if lethal injection cannot be carried out. While relatively inexpensive, even a slight miss by one of the shooters can cause the prisoner to painfully bleed to death. The electric chair was first built in the late 1800s and had replaced hanging as the primary method of execution across the country by the early 1900s. It is still retained as an execution method in some states but is no longer the only method. While designed to be more humane, the electric chair still has a well-documented track record of failure when its jolts of electricity fail to kill a prisoner. Again, in an effort to find a more humane way to kill someone, the gas chamber was introduced in 1924 and was last used in 1999. In this method, pellets are dropped triggering a chemical reaction that releases cyanide gas, cutting off oxygen to the prisoner’s brain. Lethal injection was first used in 1982 and has become the primary method of execution for all states that still permit the death penalty. A combination of three drugs is used to paralyze the prisoner’s muscles and stop their heart while strapped to a gurney. Failures in correctly administering the drugs can lead to excruciating pain and drawn-out executions. Another alternative that may become more widely used in the future is execution by nitrogen gas, introduced in Oklahoma in 2015 and first used in an execution in Alabama in 2024. This method is similar to the gas chamber but relies on the prisoner suffocating by forcing them to breathe pure nitrogen. The execution in Alabama remains the lone usage of nitrogen gas, so it’s still unknown how much of a role it could play in the future.
Despite all of the costs and risk of failure associated with each method of execution, it would still seem as though the death penalty is less expensive than other long-term forms of punishment like life in prison. Surprisingly, this is not true at all; it has been proven many times that the death penalty is substantially more expensive than judicial systems that do not use it. Studies vary in their specific numbers since it is difficult to assign an exact dollar amount to processes as complex as the death penalty or life in prison, but the conclusions are the same. The cost of each death penalty trial and execution typically ranges from $1.5 to 3 million while the cost of imprisoning someone for life ranges from $600000 to $1.1 million (Spangenberg & Walsh 1989). How can this be if it runs so counterintuitively to common sense? It may seem simple to point to the cost of the actual execution, which can involve setting up the correct facilities, training employees to carry out the execution, and obtaining the necessary supplies. However, this is not the main culprit, as the marginal cost of carrying out an execution is quite low if a state is already fully equipped to carry one out. The overwhelming factor behind the higher cost of the death penalty is the associated legal costs. At virtually every stage of the judicial process, a capital punishment case involves greater legal expenses than a case without capital punishment (Miron 2023). Nearly all defendants facing the death penalty are indigent, meaning they are unable to afford an attorney. The 6th Amendment requires the state to supply an attorney (or multiple in most cases) to those who cannot afford one, which increases the cost to the government. The more complex nature of death penalty trials means that more time and resources are expended on things like jury selection, forensic evidence, psychiatric evaluations, and other expert witnesses, driving up costs even further. Another major legal cost of the death penalty is the appeals process. Cases involving the death penalty on average involve many more appeals than other long-term sentence cases. The various appeals to both state and federal courts often take years or even decades, which again requires valuable time and resources. Many death sentences are commuted to life in prison or overturned on appeal; of the 8,466 death sentences handed down from 1973 to 2013, 3619 were removed from death row after being either commuted or overturned (Baumgartner and Dietrich 2015). Despite the result no longer being the death penalty, the costs were still incurred. The marginal costs associated with trials and the appeals process in capital punishment cases remain high no matter how many of them a state chooses to pursue. Every death penalty case comes with a high marginal cost due to legal costs, which is the driving force behind the high economic cost of the death penalty.
The higher cost of the death penalty forces the government to incur additional costs that it would not have if the prisoner was sentenced to something like life in prison. To offset these costs and keep government spending as it was previously, the government has two primary options: first, they can divest money from other expenditures. However, this forces the government to cut money from critical areas like education, public safety, or anything else funded by the state. It is highly undesirable to cut funding from necessary areas to pay for something completely avoidable. The alternative is to just raise taxes and pass the death penalty’s financial burden onto the taxpayers. Raising taxes solely to compensate for increased spending because of the death penalty reduces private spending in the economy and can hurt consumer sentiment. Another facet of the prison system that the death penalty interferes with is the prison labor system. Most prisons provide prisoners with the opportunity to work for a small wage, usually to put towards their commissary accounts or send to people on the outside. While this system is controversial and has faced accusations of promoting slave labor, it has some economic benefits. Prisoners can obtain a wage they would not otherwise have access to, and the government gains access to labor and output it would otherwise not have access to. Most death rows, however, prohibit prisoners’ access to prison labor programs, which cuts off this income and output. In addition, prisoners on death row are also often denied access to educational programs that can improve their knowledge and increase labor productivity.
Prison is necessary in society, yet inherently inefficient. Governments are forced to allocate resources into constructing, operating, and maintaining prisoners when these resources could have been spent elsewhere. The high marginal costs of the prison system include both the direct costs of housing prisoners and the drop in productivity in individuals while incarcerated. The perceived marginal benefit of prison is that it acts as a deterrent against future crime; imprisoning those who commit crimes will help to prevent future crime. However, there is no strong evidence to suggest that prison actually works to prevent future crime (Nagin 2013). A more effective deterrent would be an increased sense of certainty that one would be caught if one did commit a crime. While punishing crime is necessary to preserve order in society, prison effectively removes millions from the labor force and removes the output they could have generated. And while systems like the aforementioned prison labor system can somewhat make up for this, it is far from compensating for the entire impact. The output previously provided by those now incarcerated is no longer available, so GDP decreases as private spending and investment fall. Not to mention, an estimated 5% of the prisoners are innocent, which is an even greater travesty. The death penalty only exacerbates all of these problems. It causes an unnecessarily high financial burden that is either passed on to taxpayers or taken away from vital resources and reduces output even further by preventing death row prisoners from working or getting access to an education while incarcerated. Even for those who have benefitted from the hundreds of death penalty exonerations (Death Penalty Information Center 2022), the extremely long and slow nature of death row appeals means that once a death row inmate is rightfully exonerated, they have often been languishing in prison for decades. Decades that could have been spent free and would have almost certainly provided a more positive economic impact, whether that be working, getting an education, or just boosting private spending. Even in a system without the death penalty, those who are wrongfully convicted and later exonerated could have marginally contributed during their time in prison by working or getting an education. Wrongful convictions would unfortunately still occur if the harshest sentence was life without parole, but some of the lost productivity would be able to be recouped. The death penalty only magnifies all of the economic flaws of imprisonment, and while prison may be necessary to maintain balance and peace in society, the death penalty is not.
Supporters of the death penalty argue that is an economically beneficial system, as the marginal benefits outweigh the marginal costs. Similar to prison as a whole, the main proposed benefit of the death penalty is that it will deter future crimes. The only crimes currently capable of warranting the death penalty are murder and crimes against the state like treason or espionage, a precedent set in place by Kennedy v. Louisiana in 2008. No one is currently on death row for crimes against the state, so the only possible crime the death penalty could deter is murder. While it seems logical that one might be less inclined to commit a murder in the face of such harsh punishment as death, there is no statistical evidence to suggest that the death penalty has any effect on deterring murder. Isolating the cause behind a murder is extremely difficult, and it’s nearly impossible to look at a murder and say whether it would or would not happen based on the status of the death penalty in the state it was committed. Beyond the impact of confounding variables, there is no broad evidence suggesting the death penalty can deter murders. The national murder rate did not decrease following the reinstatement of the death penalty in 1976, and the murder rates in states with the death penalty are actually higher than those without the death penalty (Death Penalty Information Center 2023). The so-called “benefit” of the death penalty, deterring future crime, doesn’t exist; no conclusion can be drawn on whether the death penalty affects murder rates. Incurring the high marginal costs of the death penalty for a marginal benefit with no statistical basis is not an economically sound decision.
The death penalty is one of America’s most complex and controversial judicial issues and will likely remain so for a long time. Thousands of hours of political and legal research have been put forth regarding capital punishment, and arguments rage on over its constitutionality and morality. While plenty of arguments have been made on why capital punishment is wrong, like the astonishing number of death row exonerations, the ethical contradiction that it is fine to kill someone even though it was wrong of them to kill, or the fact that virtually every other developed country prohibits capital punishment; the economic impacts and aforementioned inefficiency of the death penalty are not brought up as frequently. Its high marginal cost and reduction of labor and output make it a much larger hindrance to the economy than other forms of long-term sentencing. The question remains legally whether death is cruel and unusual, but economically, the answer is clear.
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Baumgartner, Frank, and Anna Dietrich. “Most Death Penalty Sentences Are Overturned. Here’s Why That Matters. – The Washington Post.” The Washington Post, 2015. https://www.washingtonpost.com/news/monkey-cage/wp/2015/03/17/most-death-penalty-sentences-are-overturned-heres-why-that-matters/.
“Description of Each Execution Method.” Death Penalty Information Center, 2019. https://deathpenaltyinfo.org/executions/methods-of-execution/description-of-each-method.
Furman v. Georgia, 408 U.S. 238 (1972)
Gregg v. Georgia, 428 U.S. 153 (1976)
“Innocence Database.” Death Penalty Information Center, 2022. https://deathpenaltyinfo.org/facts-and-research/data/innocence.
Kennedy v. Louisiana, 554 U.S. 407 (2008)
Miron, Jeffrey. “The Financial Implications of the Death Penalty.” Cato.org, 2023. https://www.cato.org/blog/financial-implications-death-penalty.
“Murder Rates.” Death Penalty Information Center, June 9, 2023. https://deathpenaltyinfo.org/facts-and-research/murder-rates.
Nagin, Daniel S. “Deterrence in the Twenty-First Century.” Crime and Justice 42, no. 1 (August 2013): 199–263. https://doi.org/10.1086/670398.
Robert L. Spangenberg & Elizabeth R. Walsh, Capital Punishment or Life Imprisonment—Some Cost Considerations, 23 Loy. L.A. L. Rev. 45 (1989).