The death penalty is another issue that libertarians are fairly divided on. Some libertarians see the death penalty as a fair and sometimes justified recourse against those who commit atrocious violations against the rights of others. Others may agree with the sentiment, but see the death penalty as a dangerous tool used by an unpredictable government. Others still may even discount the concept of penal justice entirely, and advocate only restorative justice (compensating the victim for damages), in this view, dead criminals cannot compensate their victims in any way and thus options for restorative justice is limited. There are, thus, a variety of viewpoints amongst libertarians pertaining to the death penalty.

Some libertarians believe that the death penalty is the right of a free society, that once a person violates the rights of others they sacrifice their own rights and are eligible to respective punishment the most extreme of which is being sentenced to death. This may arise in extreme situations such as in reprisal to crimes where the victim(s) had a right to kill the offender in self-defense but who were denied that right, such as in cases of murder, serial murder, acts of terrorism, or other heinous crimes. People critical of this mentality note that what constitutes a heinous crime is arbitrary and thus difficult to consistently enforce.

Regardless, libertarians believe that people should not live in fear of dangerous criminals who will violate them at any given moment, and the death penalty ensures a permanent resolution to the situation, especially when it has been demonstrated that the offender cannot or will not demonstrate any capacity for reform. Likewise some libertarians object to life in prison on the grounds that it is both a failure to deter from extreme criminal behavior and that the general public, whom are victimized by the violent actions of these criminals, are victimized again by the expense they must pay to keep severe offenders alive for the term of their life sentence. In this view, violent reprisal as a part of police action or self-defense is the same as summary judgement leveraging a death penalty, and offenders do not deserve the facilities granted to them by being kept alive in prison.

This attitude stems back to the Founding Fathers, such as Thomas Jefferson who viewed both the death penalty and castration as appropriate tools of a government to penalize criminals. The death penalty is the ultimate penalty of a penal system of justice, which many libertarians believe is the most strictly effective method of dealing with offenders.

These libertarians may or may not agree with the idea that our government in its current practice is a good example of a government that should be trusted with the capacity for death penalty judgements.

Many libertarians do object to the death penalty in its current practice, most usually because they do not trust the state to enforce death penalty judgements fairly or accurately. Likewise, others may argue that the current death penalty actually aids violent offenders who often times use the severity of the penalty to get undue support for their cause of escape. These libertarians do not necessarily disagree with the concept of the death penalty, but do hold these complaints about its current practice.

Other libertarians object to the idea of a penal code entirely, advocating restorative justice (i.e. rulings which force offenders to work to compensate the victims for damages). These libertarians object to the concept of the death penalty as a deterent, and also note it limits the potential for restorative judgement rulings. This is a dominant view of anarcho-capitalists.

Ultimately libertarians, even those in favor of the death penalty, are skeptical of any government's application of a death penalty ruling, and will agree that the death penalty is very often abused by tyrannical governments.

The Eighth Amendment to the United States Constitution details the rights of civilians when faced with penalties for their crimes:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The phrase cruel and unusual punishment originates from the 1689 English Bill of Rights, adopted by the monarchy to settle concerns of citizens of greater government abuse. Capital punishment (a.k.a. the death penalty) was not generally considered be "cruel and unusual" until modern times, whereas many modern anti-death penalty advocates suggest the death penalty is both cruel and unusual. State's rights libertarians believe individual states should determine the meaning of this passage as it applies to their criminal justice system.

In a legal environment the term "cruel" is generally interpreted to be whether or not a punishment for a particular crime is excessive, and "unusual" as to whether or not the punishment is arbitrarily decided or capricious. Libertarians largely differ on whether or not this should apply to the death penalty.

Whether for or against the death penalty, libertarians advocate strict and swift judgement against those who cannot respect the rights of others. A principled criminal justice system is a cornerstone of a conventional libertarian government. All changes to the status of the death penalty should ensure that criminal justice continues to function as intended. Since the most advocated alternative to the death penalty - life in prison - results in the similar consequence of removing the offender from society permanently, many libertarians consider reform of the death penalty to be a minor political issue.

This article pertains to issues that only require reform of existing legal code to take effect. As such, they are classified SECTION 1: "CORE MEASURES"