THE CONSTITUTIONAL DEFENSE NOTES THE FIFTH AMENDMENT IMPLICATION THAT PERSONS MAY BE DEPRIVED OF THEIR LIVES WHEN SUCH DEPRIVATION IS CARRIED OUT IN COMPLIANCE WITH DUE PROCESS OF LAW. IT IS ARGUED THAT TO REGARD THE DEATH PENALTY AS UNCONSTITUTIONAL NECESSITATES THE BELIEF THAT STANDARDS DETERMINING WHAT IS CRUEL AND UNUSUAL HAVE EVOLVED SO AS TO PROHIBIT THAT WHICH WAS AUTHORIZED WHEN THE EIGHTH AMENDMENT WAS ENACTED IN 1791. SUCH EVOLUTION IS CONCLUDED NOT TO HAVE TAKEN PLACE. THE ESSENTIAL MORAL QUESTION CONCERNING THE DEATH PENALTY IS IDENTIFIED AS WHETHER THE PENALTY IS MORALLY JUST AND/OR USEFUL. ABOLITIONIST ARGUMENTS BASED ON CONCEPTS OF MALDISTRIBUTION AMONG THE GUILTY, MALDISTRIBUTION BETWEEN THE GUILTY AND THE INNOCENT, AND MISCARRIAGE OF JUSTICE ARE REFUTED, AS ARE ARGUMENTS BASED ON LACK OF PROOF FOR A DETERRENT EFFECT OF CAPITAL PUNISHMENT. POPULAR ARGUMENTS AGAINST THE DEATH PENALTY -- THAT IT IS BARBARIC, THAT IT IS INAPPROPRIATE BECAUSE MOST CAPITAL CRIMES ARE ACTS OF PASSION, THAT IT REFLECTS THE UNWORTHY MOTIVE OF VENGEANCE -- ARE EXAMINED CRITICALLY, AND PHILOSOPHICAL JUSTIFICATIONS FOR IMPOSING DEATH PENALTIES ARE NOTED. IT IS CONCLUDED THAT MURDER DIFFERS IN QUALITY FROM OTHER CRIMES AND THEREFORE DESERVES QUALITATIVELY DIFFERENT PUNISHMENT. THE FAILURE TO IMPOSE THE DEATH PENALTY IS SAID TO REPRESENT A FAILURE OF NERVE, I.E., A RELUCTANCE THAT IS UNDERSTANDABLE AND PROPER FOR PHILOSOPHERS AND SCIENTISTS, BUT NOT FOR COURTS. IT IS FURTHER NOTED THAT PUNISHMENTS PROCLAIM AND ENFORCE A SOCIETY'S SOCIAL VALUES ACCORDING TO THE IMPORTANCE ATTRIBUTED TO THOSE VALUES. TO REFUSE TO PUNISH ANY CRIME WITH DEATH IS TO HOLD THAT THE NEGATIVE WEIGHT OF A CRIME CAN NEVER EXCEED THE POSITIVE VALUE OF THE LIFE OF THE PERSON WHO COMMITTED THE CRIME.