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Capital Punishment

Abstract and Keywords

This article reviews the landscape of capital punishment as it now exists. Section I discusses the use of capital punishment internationally. Section II, reviews the use and characteristics of capital punishment in the United States. Section III discusses issues of race, and Section IV examines major Supreme Court decisions. Section V reviews arguments for and against capital punishment. Section VI discusses problems in the administration of capital punishment. Section VII discusses life without the possibility of parole. The article concludes with a discussion of what might be fruitful and important areas for future research, and a look at what the future of the death penalty might be.

Keywords: death penalty, race, Supreme Court, capital punishment administration, parole

For as long as there have been civilizations with legal systems authorized to inflict punishment for wrongdoing, there have been death penalties. The death penalty was a possible punishment for numerous crimes in the Code of Hammurabi (codex Hammurabi) of Babylon around 1790 BCE, including for such crimes as stealing the son of another, making an accusation of a capital crime that was not proven, robbery, and rape. Three centuries earlier, the Code of Ur-Nammu of Sumeria (Mesopotamia or modern-day Iraq) declared that death would be the punishment for crimes such as murder, robbery, adultery, and rape. Under the laws of Draco in seventh-century BCE Greece, capital punishment was imposed for murder, treason, arson, and rape. Provisions for capital punishment were included in the legal codes of ancient China, the Roman Empire, and the monarchies of Europe during the Middle Ages (Edwards 2007). Under the English “Bloody Codes” of the 1700s, more than two hundred offenses were punishable by death. Even before it became a country, the United States embraced the death penalty. Capital punishment dates from at least 1608 when Captain George Kendall of the Jamestown Colony in Virginia was executed for allegedly being a Spanish spy.

The death penalty has existed in the United States since the 1600s (Banner 2002). There were no very accurate historical records prior to 1930, so historians can make only educated guesses about the number of executions. It has been estimated that there have been more than 16,000 executions on US soil since 1608, including approximately 1,200 since the mid-1970s when the modern era of capital punishment began. Although the United States is not alone among modern countries in using capital punishment, it is the only Western democracy to do so. Japan and (p. 758) India retain the death penalty, but many countries that use it are non-democratic regimes, such as China, Saudi Arabia, Kuwait, North Korea, and Iran.

However, to say that America is a capital punishment country overlooks that there is great variation within the United States. Some states do not have the death penalty at all; some have it on their books but use it infrequently. Others, such as Texas, Virginia, and Oklahoma, use it often. Even within active death penalty states, however, there is tremendous variation; about two-thirds of the counties in both Texas and Oklahoma, for example, have not sent anyone to death in the modern era. The death penalty in the United States is, moreover, regionalized. From the mid-1970s until the present about 80 percent of all executions in the United States have taken place in southern states.

In this chapter I review the landscape of capital punishment as it now exists. Section I discusses the use of capital punishment internationally. A movement away from its use has frequently not occurred because of popular sentiment against it, but for economic and political reasons—mainly that membership in the European Union and Council of Europe requires the abolition of the death penalty. In section II, I review the use and characteristics of capital punishment in the United States. Section III discusses issues of race, and section IV examines major supreme court decisions. Section V reviews arguments for and against capital punishment. Section VI discusses problems in the administration of capital punishment. Section VII discusses life without the possibility of parole.

Many controversies about the death penalty have made their way into the courts. There have been numerous US Supreme Court decisions concerning the constitutionality of capital punishment and particular forms of it, such as whether death by firing squad is a constitutional punishment (Wilkerson v. Utah 99, U.S. 130 [1878]), or death by electrocution, (In re Kemmler, 136 U.S. 436 [1890]). In recent years this issue has arisen with respect to whether lethal injection is a constitutional form of punishment, and at least for now the Court says it is (Baze v. Rees, 553 U.S. 35 [2008]). Since the modern era of capital punishment began in 1976, the Court has taken on the task of deciding for what crimes capital punishment may be imposed (rape? murder? kidnapping?) and for what kinds of people (the mentally ill? the retarded? the young?). The Court has also given state courts guidance on procedures for capital trials and appeals. An extensive series of cases that I examine only briefly concerns how juries should be selected, what kinds of evidence can be used, whether there should be separate hearings for guilt and penalty, and standards for the quality of legal representation in capital cases.

Other issues that surround the death penalty concern whether it is an effective deterrent to crime—many people believe it is, but most scholars do not. It is, however, difficult to measure the deterrent effect of executions on homicides because there are so few of the former and many more of the latter. Retentionists argue that it costs a great deal more to hold people in prison for the rest of their lives than to execute them. The abolitionists counter that capital trials are anything but normal, that their uniqueness causes them to be lengthy and contested (p. 759) rituals, which necessitates equally lengthy and careful review processes. Supporters push religious commands and the moral doctrine of “an eye for an eye,” while opponents warn us that the death penalty is subject to human error and the risk of execution of an innocent person.

A number of concrete problems plague capital punishment. Within the last decade questions have been raised about the adequacy of counsel in capital cases, the quality of scientific evidence and the treatment of scientific evidence in state crime labs, and the possibly unprofessional and unethical behavior of the police and prosecution in some capital cases. These issues in turn have raised questions about the conviction and execution of innocent persons. Innocent persons have been convicted of capital crimes and sentenced to death—about 138 people in twenty-six states have been released from death rows since 1973 (Death Penalty Information Center 2010). In 2000, the frequency of the falsely convicted and issues about the day-to-day fairness of Illinois’ capital punishment system led Governor George H. Ryan to declare a moratorium on executions in that state, and to establish a special commission to investigate how Illinois goes about the business of trying capital cases. Other states, including Maryland and New Jersey, followed with their own moratoriums so studies could be conducted of the operation of the death penalty in those states.

In recent years there has been a dramatic decline in the number of death sentences imposed. This may reflect the public’s growing concern with the death penalty’s problems but also statutory changes in many states. Most states now have “life without the possibility of parole” (LWOP) provisions as a more compelling or at least less objectionable alternative to capital punishment. I discuss LWOPs and examine the implications they may have for the use of capital punishment.

The chapter concludes with a discussion of what might be fruitful and important areas for future research, and a look at what the future of the death penalty might be. One area for future research is the use of victim impact statements in capital hearings. While victim impact statements allow family members and others to convey to the sentencer the extent of the harm done, there is some concern that such testimony may inflame the emotions of the jury and bias the sentence toward death. The Supreme Court thus far has been unwilling to limit victim impact evidence, but it may need to revisit the issue. Another important area of future research is getting an accurate understanding of exactly how much it costs to have a system of capital punishment.

There is controversy and disagreement about what the future holds. Some scholars argue that the inevitable progress of civilization will bring an end to capital punishment. They point to the growing number of countries that have abandoned the death penalty to support their position, and the decline in the number of death sentences and the number of executions in the United States over the past ten years. Another view is that the increase in the number of countries that have abolished the death penalty results largely from political considerations and that those countries (p. 760) that retain the death penalty are not likely to give it up. China, for example, will likely retain the death penalty at least for a while and not be susceptible to diplomatic or economic pressure to abolish it. A majority of other retentionist countries are Islamic countries, which are likely to retain capital punishment as part of Sharia law.

The death penalty in the United States is substantially a state and not a federal concern, used mainly (80 percent) in southern states that seem unlikely to yield to diplomatic pressures or overtures about “civilization and progress.” Support for capital punishment has consistently been around 65 percent of the American public since 2000. This more pessimistic view is that the number of death sentences and executions may continue to decline in the United States and around the world, but the death penalty is not likely to disappear anytime soon.

A number of conclusions can be drawn:

  • There has been a steady decline in the number of countries using capital punishment in recent years, but it is still imposed in some countries, particularly in Islamic countries and in Asia.

  • There has been a movement in Europe to abolish the death penalty to honor human rights.

  • There have been approximately 16,000 executions in the United States, about 1,200 since 1977.

  • The number of death sentences and the number of executions have been declining in the United States since the 1990s.

  • The use of the death penalty varies greatly from state to state and within a state.

  • Historically and today there is a close relationship between capital punishment and race.

  • Common justifications of the death penalty are that it saves money, is necessary to deter crime, and is morally required. Each is controversial.

  • There have been a number of problems with the death penalty in application—racial disparity, poor lawyers, executing or convicting the innocent, and prosecutorial/law enforcement misconduct.

  • An alternative to the death penalty is life without parole, but it too comes with problems.

  • The death penalty is likely to be with us for the foreseeable future.

I. The Death Penalty Internationally

The death penalty has been a frequently inflicted punishment in different countries, with different political regimes, in different parts of the world. Every form of government (democracy, oligarchy, monarchy, military junta), in every historical (p. 761) period and virtually every country has used the death penalty. Even the Vatican used capital punishment until it was abolished in 1969. There has, however, been a worldwide movement in the past three decades away from capital punishment toward some form of life imprisonment as the most serious punishment (Amnesty International 2009; Death Penalty Information Center 2010). As of December 2010, ninety-five countries had abolished the death penalty altogether, nine had abolished it for “ordinary crimes” (murder, kidnapping, rape) but retained it for other offenses such as treason, and thirty-five had not officially abolished the death penalty but had not executed anyone in the previous ten years. In total, 139 countries had abolished the death penalty for all offenses, for ordinary crimes, or in practice, although it still may exist in the law. Fifty-eight countries retained the death penalty for ordinary criminal offenses. Among these are China, Japan, Libya, Egypt, Iran, Afghanistan, Pakistan, Saudi Arabia, Vietnam, North Korea, and the United States. Over the past five years, the greatest number of executions has occurred in China, with lesser numbers in Iran, Saudi Arabia, and Pakistan. Within the past several years just five countries have imposed about 90 percent of all the executions: China, Iran, Saudi Arabia, Pakistan, and the United States.

Historically, there have been many methods of imposing the death penalty. Socrates was put to death in ancient Greece by drinking poison. In various Chinese dynasties executions were carried out by slicing the body with many cuts until death occurs (death by 1,000 cuts), cutting the person in half, boiling in water, hanging, and being buried alive (Lu and Miethe 2007). In Rome, executions were carried out by crucifixion, mauling by wild beasts in the arena, and being burned (Edwards 2007). European countries moved from brutal forms of execution such as being pulled apart by horses, boiling in oil or water, or breaking on the wheel or rack in the European medieval period to hanging by the eighteenth and nineteenth centuries (Ruff 2001).

Even today many different methods of execution are used. China has in recent years moved increasingly to lethal injection, but it still carries out many executions with a bullet to the head. Thailand uses a 9 mm machine gun on most of its condemned prisoners. Stoning is allowed in Iran, Saudi Arabia, and other Islamic countries. Beheading is permitted in Saudi Arabia and in the United Arab Emirates. Immurement (being left to die of starvation or dehydration) and having a wall fall on the condemned has been used in Afghanistan.

Over the past thirty years, there has been an international movement away from the death penalty and toward substitution of some form of life sentence as the most severe punishment. Since 1976, more than one hundred and four countries have abolished capital punishment for all crimes or for all ordinary crimes. A majority of countries are abolitionist in some form. The movement toward a more abolitionist position has not come about because of a groundswell of popular sentiment but for more pragmatic political and economic concerns. For example, Protocol 13 of the European Convention of Human Rights bans the death penalty (p. 762) under all circumstances. A number of countries that have recently abolished the death penalty have done so to qualify for membership in the European Union [Bosnia-Herzegovina (in 2001), Bulgaria (in 1998), the Czech Republic (in 1990), Hungary (in 1990), Lithuania (in 1998), Poland (in 1997), the Slovak Republic (in 1990), Ukraine (in 1999), Serbia (2002), Montenegro (2002), Estonia (1998), Latvia (in 1999), Turkey (in 2002), Armenia (in 2003).

A good argument can be made that the recent trend toward abolition has not occurred because of popular support for abolition but in spite of a lack of support for it (Zimring and Hawkins 1986; Marshall 2000; Zimring 2003). When Great Britain abolished the death penalty in 1965, a majority of the citizens in public opinion polls indicated that they were in favor of it for some crimes. Zimring (2003) reported that public opinion polls taken ten years after abolition showed that more than 80 percent of British respondents would like to see the death penalty reinstated. Another poll taken in Britain in 2003 revealed that 55 percent of those polled were in favor of the death penalty for murder (Death Penalty Information Center 2009). When the Federal Republic of Germany (West Germany) abolished the death penalty, 74 percent of its public was in favor of capital punishment, and only 21 percent favored abolition (Noelle and Neumann 1967). A majority of the French population was in favor of the death penalty when it was abolished by a left-of-center government in 1981 (Marshall 2000; Steiker 2002). When the death penalty was abolished in many European countries, popular support was quite high, and it was not until after abolition that it began to decline.

Hood and Hoyle (2009) have recently argued that a “new dynamic” has emerged in the international community, which recognizes capital punishment as a denial of human rights. Most are optimistic that this will eventually lead to “the final elimination of the death penalty worldwide” (1). There are reasons to be skeptical. Many countries that moved toward abolition did so primarily for economic and political reasons, and in opposition to public opinion. For example, Hood and Hoyle noted that Albania “moved quite rapidly toward abolishing the death penalty as it prepared for membership in the Council of Europe” and in the face of great public support for the death penalty (emphasis added, 11, 24). They also noted how Poland’s abolition of the death penalty was motivated by “political will, official inquiry, and the influence of United Nations policy,” but not that it came at the behest of public support for the human rights of murderers. Ukraine abolished capital punishment by legislative fiat with support from the Supreme Court of Ukraine, but did so in the face of public opposition (2009, 12). A similar anti-democratic process unfolded in Lithuania, which adopted abolition in the hopes of enjoying EU or EC membership when public support for abolition hovered around 20 percent (23).

It is not clear how successful the international abolitionist movement will be. Neither diplomatic pressure nor economic incentives is likely to bring many (p. 763) Islamic countries into the abolitionist club. Saudi Arabia, Iran, Iraq, Yemen, and Pakistan will likely continue to use the executioner. The situation in East Asia is less clear. Johnson and Zimring (2009) hold hope for countries such as Japan, China, Vietnam, and North Korea to become abolitionist in part because retaining capital punishment prevents them from being seen as “decent” by other major powers. While this may be true of Japan, it is not clear that China, for example, will be overly concerned with its reputation in the West (remember Tiananmen Square?). They also suggest that economic interests may lead China to modify its current retentionist policy, but it seems more likely that the world will depend more on China economically than the other way around. Even if there is public support for abolition in China, and evidence indicates this is not true (Oberwittler and Qi 2008), the Chinese government seems able to resist it. While the number of executions in China and elsewhere in Asia may continue to decline it is not easy to see it being abolished at any time soon. The United States is consistently fifth or sixth on the list of the most frequently executing countries. Southern states are unlikely to bow to European Union or other diplomatic pressure to abolish the death penalty out of regard for human rights. While both death sentences and executions here may decline, it is doubtful that they will soon disappear.

II. The Death Penalty in the United States

 Capital PunishmentClick to view larger

Figure 24.1. Number of Annual Executions in the U.S. from 1975–2009

Source: Death Penalty Information Center.

The United States is a death penalty country. Beginning in 1967, there was a ten-year moratorium while federal courts sorted out various constitutional issues. Executions resumed in January 1977 when Gary Gilmore was put to death by firing squad in Utah. From 1977 to the end of 2010 there were 1,234 executions in the United States, all but three carried out by the states (Death Penalty Information Center 2010). Figure 24.1 shows the number of executions per year since the modern era of capital punishment began in 1976.

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Figure 24.2. Executions in the U.S. by Region: 1976–2009

Source: Death Penalty Information Center.

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Figure 24.3. Death Sentences in the U.S. per 100,000 People: 1977–2008

Source: Death Penalty Information Center.

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Figure 24.4. Racial Composition of Death Rows – 2009

Source: Death Row U.S.A., Summer 2009.

Not all states have the death penalty. Table 24.1 shows which states do and do not, and the number of executions from 1976 to 2010 in that state. Executions are not evenly distributed. Figure 24.2 illustrates that about 82 percent of all executions since 1976 have taken place in southern states. Almost half (46 percent) occur in Texas and Virginia. Figure 24.3 shows the annual per capita number of death sentences imposed in the United States since 1977. The number of death sentences peaked in the mid-1990s and has been declining since then. At the end of 2010, there were about 3,300 persons on death rows, 98 percent of whom are male. The racial breakdown is shown in figure 24.4. About 44 percent are white and 42 percent are black.

Table 24.1. Death Penalty and Non-Death Penalty States in the U.S., and the Number Executed between 1976–2009

Death Penalty States (35)

Alabama (44)

Florida (68)

Louisiana (28)

New Hampshire (0)

South Dakota (1)

Arizona (23)

Georgia (46)

Maryland (5)

North Carolina (43)

Tennessee (6)

Arkansas (27)

Idaho (1)

Mississippi (10)

Ohio (34)

Texas (449)

California (13)

Illinois (12)

Missouri (67)

Oklahoma (93)

Utah (6)

Colorado (1)

Indiana (20)

Montana (3)

Oregon (2)

Virginia (105)

Connecticut (1)

Kansas

Nebraska (3)

Pennsylvania (3)

Washington (4)

Delaware (14)

Kentucky (3)

Nevada (12)

South Carolina (42)

Wyoming (1)

Non-Death Penalty States (15)

Alaska

Massachusetts

New Mexico

Vermont

Hawaii

Michigan

New York

West Virginia

Iowa

Minnesota

North Dakota

Wisconsin

Maine

New Jersey

Rhode Island

District of Columbia

(*) New Mexico abolished the death penalty in 2009, but had executed 1 person prior to that and there are two persons who remain on New Mexico’s death row as of this date.

(p. 764) Most executions are by lethal injection. Of the 1,234 executions since 1977, 86 percent were performed with lethal injection. There are, however, authorized alternatives. Depending on when and where the death sentence was imposed and the condemned’s preference, as of 2010 it was still possible for the death penalty to be carried out by electrocution, hanging, firing squad, or lethal gas.

 Capital PunishmentClick to view larger

Figure 24.5. Rate of Executions (per 10,000 pop.) for Death Penalty States – 1977–2008

Source: Death Penalty Information Center. Rates represent the number of executions in the state from 1977–2008 divided by 2008 state population.

A majority of states retain the death penalty, but there is great variation in how often they use it. Some states have capital punishment “on the books” but rarely (p. 765) execute anyone. Figure 24.5 shows the diverse execution rates in states that had capital punishment on their statutes at the end of 2008. Perhaps we should not be too surprised. After all, states vary considerably across a number of other important dimensions including the form and structure of their death penalty law, the crime rate, the educational level of the population, how politically or religiously (p. 766) conservative the citizens are, the financial ability of the state to pay for capital trials, the extent of urbanization, and a number of other factors.

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Figure 24.6. Execution Rate (per 10,000 pop.) for Texas Counties – 1977–2007

Source: Texas Department of Criminal Justice and Texas Department of State Health Services. Rates represent the number of executions in the state from each county 1977–2007 divided by 2007 county population.

What may be considerably more surprising, however, is that there is at least as much if not more variation in the inclination to impose the death penalty within death penalty states as there is between death penalty states. In other words, a death penalty state may not be a death penalty state. For example, Texas is the most active death penalty state by far. There have been approximately four hundred executions in Texas since 1977, about 37 percent of the total number of executions for all states and three times more than in the next highest state (Virginia). Few would doubt that Texas is a “real” death penalty state. However, there is substantial variation among counties in Texas.

(p. 767) Of the 254 Texas counties, two-thirds have not had an execution since 1976.1 Among the minority of counties in Texas that have had executions, the rate at which executions occur varies dramatically. There is more variability in the risk of execution within Texas than there is across all death penalty states in the United States, even though the law is the same throughout Texas.2 Texas, of course, is not the only death penalty state to show this kind of variation.

Capital punishment is a regional punishment. Again, the vast majority of executions are performed in southern states. Even within the South there is much variation across jurisdictions and within death penalty states. The death penalty in the United States, though subject to state law, is very much a local phenomenon.

III. Capital Punishment and Race in America

The relationship between the death penalty and race dates at least to the Slave Codes that regulated and controlled virtually all aspects of African American life. The Louisiana Slave Code of 1806 is instructive: “The master may sell him, dispose of his person, his industry and his labor: he can do nothing, possess nothing, nor acquire anything but what must belong to his master” (Stampp 1956, 197). The codes described the rules of etiquette that must exist between black and white, sometimes providing that a slave could not talk back to nor scowl, roll their eyes at, or smirk at (p. 768) a white person. When blacks approached whites on the street they had to move out of the way and cast their eyes downward; black men had to take off their hats. Slaves had to have special passes to be off the plantation, could not assemble in groups, and could not own weapons or farm tools. They could not marry or form legal contracts. The criminal laws of the southern states often had different crimes and different punishments for blacks—slave or free. Blacks could be put to death for robbery, rebellion, talking about a rebellion, or assaulting a white person.

Slave codes did not disappear with the end of the Civil War and the Emancipation Proclamation but continued in only slightly altered form as Black Codes (Foner and Mahoney 1983). The black codes severely restricted the labor of newly freed blacks. Those who were unemployed or refused to sign labor contracts with white overseers could be convicted as vagrants. A long list of potentially capital crimes for blacks did not exist for whites. The formality and brutality of the law for blacks was complemented by the brutality of mob actions and lynchings (Tolnay and Beck 1995). The further separation of the races and forceful control of blacks continued with Jim Crow laws adopted by southern states in the late 1800s and continued well into the middle of the twentieth century.

Given this history, it is not surprising that use of capital punishment has been related to race. In the years 1930–67, about one-half of all those executed were African American, and 90 percent of those were executed for rape (Paternoster, Brame, and Bacon 2008). Black defendants fared worse at every point in the criminal justice system, particularly when they crossed racial boundaries and killed a white victim. Garfinkel (1949), for example, found that black offenders who killed white victims were substantially more likely to be indicted for first-degree murder than were others. Johnson (1941) found that black offenders in Virginia and North Carolina who killed whites were more likely to be indicted for first-degree murder, convicted of first-degree murder, and sentenced to death. Black offenders were also less likely than whites to have their death sentences commuted.

Marvin Wolfgang and Marc Riedel (1973) collected information on 300 rape convictions from 230 counties in eleven southern states. They found that black offenders in serious rape cases with white victims were more than twenty times more likely to be sentenced to death than all others. A study of Georgia in 1945–65 found that the combination of a black offender and white victim was the most important predictor of a death sentence among 361 convicted rapists (Wolfgang and Riedel 1975).

One aim of US Supreme Court decisions, beginning with Gregg v. Georgia (428 US 153 [1976]), was that procedural reforms of state death penalty statutes would reduce racial disparity. The problem, however, persists. Numerous studies of racial disparity and capital punishment have been conducted in states since 1976: California, Colorado, Florida, Georgia, Kentucky, Maryland, Mississippi, Nebraska, New Jersey, North Carolina, Pennsylvania, and South Carolina. Most studies show that offenders who killed white victims (and in some cases particularly if the offender was black) were more likely to be charged with a capital crime, sentenced to death, (p. 769) and executed. A review by the US General Accounting Office of twenty-eight capital punishment studies showed that killing a white victim influenced who was sentenced to death (U.S. GAO 1990). The most comprehensive study was by David Baldus and his colleagues of the Georgia capital sentencing system (Baldus et al. 1990). They examined over 2,000 homicide indictments in Georgia and collected detailed information about the homicide, the offender, and the victim. After holding important case characteristics constant, they estimated that a killer of a white victim was four times more likely to be sentenced to death than a killer of a nonwhite victim. The evidence of racial disparity was even greater in the cases that were at the mid-range of aggravating circumstances.

The Baldus study was used as the basis for an appeal, McCleskey v. Kemp (481 U.S. 279 [1987]), to the US Supreme Court. A majority of the Court rejected McCleskey’s claim of racial discrimination. The most important finding was that general statistical evidence such as that presented by the Baldus study could not be the basis for a claim (like McCleskey’s) that he was discriminated against in his own case. The Court held that defendants must prove that the specific decision-makers in their case acted with discriminatory intent or purpose. The Baldus data, the Court argued, simply showed a disparate outcome; to be successful in their claims offenders must prove a discriminatory intent. The Court observed that the racial disparity found in Georgia by the Baldus study was not sufficiently large enough to warrant a finding of racial discrimination, that “at most, the Baldus study indicates a discrepancy that appears to correlate with race” (Baldus et al. 1990, 1777). The Court suggested that evidence such as that amassed by the Baldus study be presented to state legislatures rather than to federal courts.

In a blistering dissent, Justice Brennan argued that the evidence presented proved that race matters for capital sentencing in Georgia, that it is shaped by our nation’s history of racial conflict, and that justice requires that it not be denied:

It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. The destinies of the two races in this country are indissolubly linked together … and the way in which we choose those who will die reveals the depth of moral commitment among the living. (McClesky v. Kemp, 481 U.S. 279, 344 [1987])

General statistical evidence on racial disparities in the administration of capital punishment was presented to federal and state legislatures. At the federal level, an unsuccessful attempt was made to enact the Racial Justice Act. One of the proposed provisions would allow capital defendants in state cases to present Baldus-type general statistical studies about the patterning of race in capital cases to federal courts as evidence of racial discrimination. They would not have to meet the McCleskey burden of showing an intent to discriminate in the individual’s case. Although introduced in both houses of Congress in 1988, and supported by (p. 770) the American Bar Association and numerous civil rights and civil liberties groups, the proposed law was not enacted. Some states, however, have passed their own versions. Most recently, in August 2009 North Carolina passed a Racial Justice Act, which allows death-row inmates to challenge racial bias in the state’s death penalty system by use of general statistical studies. Prosecutors would then have the opportunity to rebut the claim that the statistical disparities indicate racial bias. If proven, a judge could overturn the death sentence or prevent prosecutors from seeking the death penalty.

IV. Constitional History of the Death Penalty

The US Supreme Court declared capital punishment unconstitutional as practiced in 1972 but authorized it under certain specified conditions in 1976. Since 1976 the Court has regulated how state death penalties are imposed. It addressed procedures state capital trials must observe, such as bifurcated hearings, allowing virtually unlimited evidence in mitigation, standards for jury selection, effective legal representation, appeals, and appellate representation for indigent offenders. It also specified the kinds of crimes and the kinds of criminals who may be eligible for death. For example, the Court ruled that the death penalty was not warranted in the case of rape or kidnapping if no life was taken, and that accomplices could face a death sentence if they played a major role in the crime and demonstrated a “reckless disregard for human life.” The Court ruled on whether juveniles and the mentally retarded may be executed and whether the mentally ill may be put to death.

It is impossible adequately to discuss all Supreme Court decisions about the death penalty (see Paternoster et al. 2008). The best starting point is Furman v. Georgia (408 U.S.238 [1972]). It was decided by a five-to-four vote, and each justice wrote his own opinion. A majority voted to strike down the death penalty statutes that then existed, but for different reasons.

State death penalty statutes then were “unitary.” Both guilt and penalty were decided at the end of one trial. Jurors were given virtually unlimited discretion in deciding which capital defendants should live and which should die. Two of the justices in the majority (Justices Brennan and Marshall) would have completely abolished the death penalty in any form. The other three justices opposing the death penalty objected to how existing statutes operated. Justice Stewart argued that existing procedures risked that death sentences be imposed on the basis of caprice, rather than reason, and analogized the imposition of the death penalty to being struck by lightning—it doesn’t strike the deserving, just the (p. 771) unlucky. Justice White argued that existing statutes gave jurors so much discretion that too few death sentences were handed down to establish a deterrent effect; the death penalty served no legitimate state purpose and was simply the “needless extinction of human life.” Justice Douglas objected on equal protection grounds, arguing that jurors had so much unguided discretion that it was likely that they employed suspect factors, such as race and social class, in making their decisions. The four justices in the minority argued that the existing laws were constitutionally acceptable.

The Furman decision had one practical effect. It emptied death rows across the United States as all death sentences were converted to life sentences. It did not, however, spell the end of capital punishment.

State legislators crafted new statutes. They took two general forms. Some states sought to create mandatory statutes. Although they differed in detail, these statutes mandated a death sentence upon the conviction of a designated type of murder (say, murder during the commission of a kidnapping, armed robbery, or rape). This solution was simple but crude—it completely eliminates jury discretion.

The second solution was to provide a list of factors to be considered. Guided discretion death statutes identified factors that argued for (e.g., the killing of a police officer) and against a death sentence (e.g., the offender has no prior history of violent offenses). Jurors had to find at least one aggravating factor in order to impose death but had to balance all aggravating factors against the mitigating factors. Most new laws provided for bifurcated capital hearings (separate hearings on guilt and penalty) and an automatic appeal of all death sentences.

In 1976 the Supreme Court considered five cases involving various approaches. It ruled in Gregg v. Georgia (428 U.S. 153 [1976]), Proffitt v. Florida (428 U.S. 242 [1976]), and Jurek v. Texas (428 U.S. 262 [1976]) that guided discretion statutes were constitutionally permissible, but in Woodson v. North Carolina (428 U.S. 280 [1976]) and Roberts v. Louisiana (428 U.S. 325 [1976]) that mandatory death statutes were not. The Court objected to mandatory death statutes for several reasons. One was that they moved the problem of jury discretion to an earlier point (jurors not wanting to impose death could convict the person of a non-capital crime). A second was that they did not allow jurors to hear all possible reasons why a given person should or should not be sentenced to death.

A. Procedural Reforms

In Gregg, Proffitt, and Jurek, the Court did not lay down specific procedures that states must follow. It did, however, suggest two principles that such procedures should honor—death sentences should be consistent (like cases should be treated alike) and should be individualized (the sentence should reflect the defendant’s unique culpability). In addition, it suggested possible ways to conduct a proper capital trial. These included a bifurcated hearing, a set of statutory aggravating (p. 772) circumstances, any one of which would make an offense death-eligible (for example, the murder was committed during an armed robbery), a way to hear mitigating factors, a weighing of aggravating against mitigating circumstances, and appellate review. The Court did not require these things, but if a state statute had them, it would likely pass constitutional scrutiny.

The Court later considered the information a capital sentencing jury could hear. In Lockett v. Ohio (438 U.S. 586 [1978]), the Court ruled that a state must allow the defendant to introduce as a mitigating factor any aspect of his character or record and any circumstances about the offense that might support a sentence less than death. In Skipper v. South Carolina (106 S. Ct. 1669 [1986]), the Court determined that behavior in jail before and during trial is relevant mitigating evidence. In Booth v. Maryland (107 S. Ct. 2529 [1987]), it ruled that victim impact evidence could not be used during the penalty phase because it encouraged the sentencer to base its decision on emotion and sympathy rather than a rational consideration of the character of the defendant and the characteristics of the offense. It reaffirmed this position two years later in South Carolina v. Gathers (109 S. Ct. 2207 [1989]). In Strickland v. Washington (466 U.S. 668 [1984]), the Court defined the requirements for effective assistance of counsel in state capital trials.

Beginning in the mid-1980s, however, the Court backed away from some of the procedures it suggested in previous cases were essential. In Zant v. Stephens (103 S. Ct. 2733 [1983]) and Barclay v. Florida (103 S. Ct. 3418 [1983]), the Court ruled that the only function served by a statutory aggravating circumstance is to narrow the range of cases in which a sentence of death could be imposed. Once the sentencer found an aggravating circumstance, it had virtually unlimited discretion. In Barefoot v. Estelle (103 S. Ct 3383 [1983]), it accepted that predictions by a psychiatrist on behalf of the state that a defendant will commit violent crimes in the future would more often be wrong than right, but decided the solution was to let the defense introduce its own expert evidence. In Pulley v. Harris (465 U.S. 37 [1984]), it ruled that proportionality review of death sentences by state appellate courts was not constitutionally required. In Payne v. Tennessee (501 U.S. 808 [1991]), the Court “corrected the imbalance” in favor of the defendant’s use of mitigating evidence that it thought Lockett gave by overturning its own Booth decision and permitting victim impact evidence at the penalty hearing. The Court recently (in Kelly v. California, 129 S. Ct. 564 [2008]) declined the opportunity to place restrictions upon the kind of evidence that may be used (written and oral statements are permitted as are cards, letters, photographs, and elaborate videos that portray the life of the one who was murdered), and it has placed no clear limits on what “harm” may be argued as being due to the offense (family breakups that occurred months or more after the crime is permitted), or who may speak for the victim (family, friends, neighbors). Even an undefined “law enforcement community” may be taken as being harmed by the offense.

(p. 773) B. Substantive Reforms

The post-Gregg Supreme Court provided limitations on the nature of death-eligible crimes. Gregg laid out a framework by holding that only capital crimes characterized by at least one statutory aggravating circumstance would be death eligible. In Coker v. Georgia (433 U.S. 584 [1977]), the Court held that the death penalty was disproportionate and therefore unconstitutional for the rape of an adult woman. In Eberheart v. Georgia (433 U.S. 917 [1977]), it forbade capital punishment for kidnapping when there was no loss of life.

The Court authorized death for some accomplices. In Enmund v. Florida (458 U.S. 782 [1982]), a defendant was sentenced to death under Florida law for an armed robbery-murder in which the defendant was sitting in a get-away car when his co-defendant robbed and killed the two victims. The Court overturned Enmund’s death sentence as disproportionate, stating that the Eighth Amendment’s prohibition against cruel and unusual punishment prohibits the death penalty being imposed on defendants who did not take a life, attempt to take a life, or intend to take a life, and whose participation in the crime was relatively minor.

What about the cases in which a defendant did not take, attempt to take, or intend to take a life, but whose involvement in the crime was more extensive? In Tison v. Arizona (107 S. Ct. 1676 [1987]), three sons smuggled guns into the Arizona State Prison to assist their father in escaping. During the escape the father killed four people under circumstances in which the sons had no basis for expecting him to do that. The father died while escaping. Two sons were captured, convicted, and sentenced to death. A majority of the Court took the position that the sons’ supplying weapons and helping their father escape demonstrated a “reckless disregard for human life” and, accordingly, that they could be executed.

The latest important case on this subject is Kennedy v. Louisiana (129 S. Ct. 1 [2008]). Coker had decided that the rape of an adult woman was not a death-eligible offense. Some states revised their definitions of capital crime to include the nonfatal rape of a minor. Louisiana in 1995 provided for the death penalty for the rape of child under the age of twelve. Patrick O. Kennedy was convicted and sentenced to death for the brutal rape of his eight-year-old stepdaughter. In a five-to-four decision, the US Supreme Court held that the Eighth Amendment’s “cruel and unusual” punishment clause prevents the imposition of the death penalty even in the rape of a child if it did not result or was not intended to result in the death of the victim.

C. Treatment of Special Groups

The US Supreme Court has identified groups of people who may not be sentenced to death. The principal cases concerned offenders whose crimes occurred before their eighteenth birthday and the mentally ill and mentally retarded.

(p. 774) When Gregg was decided, no state outright prohibited the execution of a defendant who was mentally retarded when he committed his offense. Mental retardation was treated as one of a number of possible mitigating circumstances the jury could consider. From 1977 until 1989, there were thirty-four executions in which there was evidence that the defendant was of deeply subnormal intelligence at the time of the offense. During this some eighteen states prohibited the execution of the mentally retarded. The first major Supreme Court decision was Penry v. Lynaugh (109 S. Ct. 2934 [1989]). Johnny Paul Penry was convicted and sentenced to death by a Texas trial court for rape and murder. At the time of his trial, Penry’s mental competence was examined by a psychologist who testified that Penry had an IQ in the mid-fifties, the mental capacity of a six- and a half-year-old child, and the social maturity of a nine- or ten-year-old. The Court ruled that the Eighth Amendment did not prohibit the execution of the mentally retarded. Mental retardation and diminished mental capacity in general were to be treated as mitigating factors.

The Court re-examined the issue in Atkins v. Virginia (536 U.S. 304 [2002]). Daryl Atkins was convicted by a Virginia jury of murder, abduction, and armed robbery and sentenced to death despite testimony that Atkins was mildly retarded and had an IQ of fifty-nine. The Court reviewed the case and, overturning Penry, held that the mentally retarded as a class could not be subject to the death penalty.

What had happened in the years since Penry? The most significant difference was that a number of states had prohibited the execution of the mentally retarded and no state changed from not allowing the penalty to permitting it. This one-way change of legislative heart was significant to the Court because it signaled that the moral sentiments of society had evolved, and it was no longer found acceptable to execute the mentally retarded.

The second suspect category considered was that of juveniles. From 1977 through March 2005, seven states executed twenty-two juveniles, all but one of whom was seventeen years old at the time of the crime (the other was sixteen). In previous decisions, the Supreme Court drew a “line in the sand” by providing the states with a minimum age below which one could not be executed.

In Thompson v. Oklahoma (787 U.S. 815 [1988]) the Supreme Court held that the execution of a person who was fifteen years old at the time their crime was committed was unconstitutional under the Eighth Amendment. In Stanford v. Kentucky and Wilkins v. Missouri (494 U.S. 361 [1989]), however, the Court upheld the execution of people who were sixteen and seventeen years old.

The Court ended the practice of executing juveniles in March 2005 in Roper vs. Simmons (125 S. Ct. 1183 [2005]). It examined state practices with respect to the death penalty for juveniles, and concluded that the trend in state (and international) law was to treat juveniles as persons needing the same kind of special protection as the mentally retarded.

The issue of the execution of the mentally ill first came before the US Supreme Court in Ford v. Wainwright (477 U.S. 399 [1986]). Ford was mentally competent (p. 775) when he committed his crime, convicted, and sentenced to death in Florida in 1974. After more than ten years on death row, however, Ford’s mental state had substantially deteriorated to the point where he not only thought he was Pope John Paul III but believed that the death penalty could not given to him because he controlled the governor of Florida through mental telepathy. The Supreme Court ruled that executing a person who at the time of his execution was mentally ill is cruel and unusual punishment. In a concurring opinion, Justice Stewart raised the question whether a state could medicate an insane person to the point that he became competent enough to be put to death. At the time of this writing, the question remained open.

V. Common Justifications

Many arguments are made in defense of the death penalty: a financial argument, a deterrence argument, an incapacitation argument, a religious argument, a moral argument, and a democratic argument. With the exception of the moral and religious arguments, these arguments can be subjected to empirical test. The empirical evidence is not always clear, but it does seem safe to conclude that there is no consistent and substantial evidence that the death penalty is cheaper, a better general deterrent, significantly better at incapacitating, nor is it justified by religious principles compared with life imprisonment without possibility of parole (LWOP).

A. Money

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Figure 24.7. Time Between Sentencing and Execution

Source: Death Penalty Information Center.

The financial argument is that executing convicted capital offenders is less of a drain on taxpayer dollars than the LWOP sentence. It is fairly expensive to keep an inmate in a secure penitentiary for life—we can estimate yearly costs at about $25,000, due to the high security that a “lifer” convicted of murder might need. With a life sentence, the total cost might be between $1 million to $1.5 million per life inmate. The appropriate comparison, however, is not between the cost of an execution and the cost of life imprisonment but the cost of maintaining a system of capital punishment vs. maintaining one that includes only a life sentence. Capital trials are substantially more expensive than non-capital trials at every stage. There are more pretrial motions, greater investigative costs, longer and more expensive jury selection, are more motions during trial, guilt, penalty, and appeal phases. Various state supreme courts and the US Supreme Court have simplified the appellate process, but this must be weighed against the finding that major trial errors occur in about two-thirds of all capital cases, necessitating a new guilt phase, penalty phase, or both (Liebman et al. 2000; 2002). Another reason for the high cost of the death penalty is the long length (p. 776) of stay on death row. Figure 24.7 shows the number of months between capital sentencing and execution from 1977 to 2007. The average length of time on death row has tripled from about 50 months to about 150 months.

Various researchers have estimated the costs of capital punishment. In North Carolina, Cook and Slawson (1993) estimated that a capital case costs about $250,000 more than a comparable non-capital case. Overall, they estimated that from pretrial to execution the cost of a capital case is about $2 million. A Kansas legislative committee estimated that the cost of a death penalty case was about $1.26 million while a comparable life case was $740,000. This was mainly because trial costs in death penalty cases were estimated to be sixteen times greater than in life cases, and appellate costs were twenty-one times greater (Legislative Post Audit Committee 2003). A study by the Urban Institute of the cost of the death penalty in Maryland found that a death-eligible case in which death was sought cost about $1.8 million compared with $1.1 million for a death-eligible case for which the state sought a life sentence (Roman et al. 2008). Baicker (2004) estimated that in the period 1983–99, it cost approximately $2 million per death penalty case and that to pay for death penalty prosecutions county governments have had to raise taxes or cut back on spending in other areas. High prosecution costs are frequently cited by local prosecutors as a reason they decide not to prosecute as a capital offense a crime that by statute is death eligible. Studies of other states and the federal death penalty system have found what both supporters and critics of the death penalty acknowledge—that it is a very, very (p. 777) expensive system to maintain and more costly than if LWOPs were the most severe penalty that could be imposed (Death Penalty Information Center 2009).

B. General Deterrence

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Figure 24.8. Homicide Rate (per 100,000) for Death Penalty (D) and Life Imprisonment (L) States

Thorsten Sellin (1959) reasoned that if the death penalty deters murder, then a state that supports it should have lower homicide rates on average than a comparable state that does not. He compared the homicide rates of death penalty and non–death penalty states that were geographically contiguous and would, he reasoned, be comparable to each other in respects that would affect their homicide rate (such as urbanization, the age distribution of the population, and average education of the population). Some of his findings are summarized in figure 24.8. In comparing three states of the Upper Midwest, for example, Sellin found that that the two death penalty states (Indiana and Ohio) did not have lower homicide rates than the one state without the death penalty (Michigan). Iowa, another state that had the death penalty, did not have a lower homicide rate than two states next to it, Minnesota and Wisconsin, which did not have the penalty. Maine, a non–death penalty state, had a homicide rate not much different from New Hampshire and Vermont, two death penalty states. Rhode Island’s homicide rate was not much different from that of Massachusetts and Connecticut, two states with which it shared a border but which (unlike Rhode Island) were death penalty states. Sellin made other kinds of comparisons as well. For example, for states that shifted from being a death penalty state to being a non–death penalty state he compared the homicide rates before and after the abolition. He made similar comparisons for states that shifted from being abolitionist to being death penalty states, with the expectation that homicide rates would drop. In these over-time comparisons, Sellin found no strong or consistent evidence to suggest that the presence or absence of the death penalty made any difference.

Sellin’s was the prevailing view until Isaac Ehrlich (1975), using sophisticated econometric models, concluded that each execution from 1933 to 1969 prevented seven or eight murders. Ehrlich’s findings caused a stir, and other scholars immediately tried to replicate and verify his results. Critics concluded that his findings were fragile and disappeared when some years were removed from his data, or if a slightly different model was estimated (Blumstein, Cohen, and Nagin 1978).

By the 1980s interest in the deterrent effect of capital punishment waned. It revived in the late 1990s mainly among economists who used new statistical tools and new data sets to examine the effect of executions since 1977. These studies produced fascinating but inconsistent results. Mocan and Gittings (2003) reported that each execution from 1977 to 1997 prevented five murders, as did Shepherd (2004). Dezhbakhsh, Rubin, and Shepherd (2003) reported that each execution prevented eighteen murders. Other studies found no evidence of deterrence, and two of the most comprehensive analyses argued strongly that there was no evidence for a deterrent effect for the death penalty (Berk 2005; Donohue and Wolfers 2006). Donohue (p. 778) and Wolfers’ study is very comprehensive with details about what statistical assumptions were made by researchers, how variables were measured, and the effects of these decisions on the results. They concluded (2006, 843) that the best conclusion is that the deterrence question cannot be answered: “The estimated effects of capital punishment on homicide rates change dramatically even with small changes in econometric specifications. Aggregating over all our estimates, it is entirely unclear even whether the preponderance of the evidence suggests that the death penalty causes more or less murder.” To this day, the deterrent effect of the death penalty remains a controversial and contested question.

C. Incapacitation

A related argument is that capital punishment is necessary to protect the public because it is the only way to prevent those who have already murdered from murdering again. To save future innocent murder victims, the argument goes, we should execute killers so they will not kill again. The risk that a murderer might be released (p. 779) on parole or escape from prison and kill someone in the community or kill an inmate or correctional officer behind bars is not great, but it is greater than zero.

Kenneth McDuff of Texas was under three death sentences for the murders of three teenagers until his death sentences were commuted to life sentences by the Furman decision. Because of overcrowding in Texas prisons, McDuff served a little more than twenty years and was released under parole supervision. He murdered two more women, was convicted, and given two more death sentences. This time the sentences were carried out, and McDuff was executed. His last two victims would be alive if Furman had not spared McDuff’s life.

Kenneth McDuff is an extremely rare case, but opponents of capital punishment must acknowledge that it will effectively prevent a murderer from committing another crime. However, had McDuff been sentenced to an LWOP sentence, which Texas did not have at that time, he would not have been released and would not have murdered again. In order to protect the public effectively then, we may not have to resort to capital punishment. The argument may quickly be raised that an inmate with an LWOP may nevertheless murder again by killing a fellow inmate or correctional officer. Marquart and Sorensen (1988) studied the future criminal behavior of 239 inmates from around the country whose death sentences were commuted to life under the Furman decision and found that only six had gone on to commit another murder in prison.

D. Religion

It is often observed that some religions provide justification for the death penalty. For example, some Christians point to biblical scripture such as the book of Genesis where God announces to Noah that “whoever sheds the blood of man, by man shall his blood be shed.” A Muslim could point to text in the Quran where it is stated that adulterers and apostates should be put to death. A Jew could appeal to Mosaic Law and the writings in the Pentateuch or the Torah where some thirty offenses are punishable by death.

The problem with relying on a religious justification for the death penalty is that most religious texts can also be used to support opposition to the death penalty. For example, Christians can cite the teaching of Jesus in the Sermon on the Mount (Matthew 5:38–39) “You have heard that it was said, ‘an eye for an eye and a tooth for a tooth.’ But I say to you, do not resist the one who is evil. But if any one strikes you on the right cheek, turn to him the other also.” While the death penalty is consistent with Islamic law, the Quran (17:33) also speaks to the need to forgive those who have wronged us rather than to strike back with equal might. And while Mosaic Law permitted the death penalty, its use was so carefully qualified (there had to be two eyewitnesses to the crime, for example) that it was rarely used.

Today, many religions, with the exception of evangelical Protestant denominations, condemn use of the death penalty. The Roman Catholic Church opposes (p. 780) capital punishment as part of a culture of death (as it does abortion). It was explicitly condemned by Pope John Paul II in 1995 in his Evangelium Vitae. The Episcopal Church, the Presbyterian Church (USA), and the American Baptist Church all oppose the death penalty as do Conservative and Reform Judaism. A few church organizations do still support capital punishment including the Southern Baptist Convention, Missouri Synod of the Lutheran Church, the Orthodox Presbyterian Church, and Orthodox Judaism. That Islam supports the death penalty is vividly seen by the number of executions in places like Iran, Pakistan, and Saudi Arabia. Both sides of the capital punishment debate can find support for their position in some religious teaching (Association of Religious Data Archives 2009).

E. Morality

One of the most common justifications for the death penalty is morality. It is derived from a concept of retribution that argues that murderers should be executed because they deserve it. Here “just desert” is understood to imply that capital punishment is the only morally fitting punishment to visit upon one who has taken the life of another. Modern retributive positions in support of the death penalty have been endorsed by Walter Berns (1979) and Ernst van den Haag (1975, 1978). The retributive justification is simple—murderers have taken an innocent life; they should be punished in exact proportion to the harm and the only way to do that is by taking the murderer’s life. Capital punishment is morally correct in this view and needs no further, instrumental justification.

Those who would oppose capital punishment might acknowledge that a murderer deserves severe punishment but may disagree as to what that punishment should be. Some retributive writers reject the Berns and van den Haag equality-based retribution and argue instead for a proportionality-based retribution. Under this view, the amount of punishment must be severe and severe enough that it does not trivialize the harm produced by the crime, and it must be consistent with other moral principles of the society (Reiman 1986; Bedau 2004). A modern retributive position, therefore, is that life imprisonment without the possibility of parole is a more appropriate punishment for the most severe crimes than is capital punishment.

F. Democratic Values

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Figure 24.9. Percent of Americans in Favor of the Death Penalty for Those Who Commit Murder

Source: Gallup 2009.

The democratic argument is that the public demands the death penalty. Those who support capital punishment can point to a body of evidence that the public is on their side. Figure 24.9 shows the results of a series of Gallup public opinion (p. 781) polls since 2002. People were asked, “Are you in favor of the death penalty for a person convicted of murder?” A majority of Americans have consistently favored the use of capital punishment for those who commit murder, and this percentage has not changed much. Sixty-eight percent of the public supported death for murderers in 2002 and 65 percent agreed in 2009. This is strong evidence of support since 59 percent of those polled in 2009 also believed that an innocent person has been executed within the past five years. It would be difficult to argue that Americans want to abolish the death penalty based upon these poll findings.

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Figure 24.10. Preference for Life Without Parole vs. the Death Penalty

Source: Death Penalty Information Center.

Critics of the death penalty argue, however, that public opinion surveys that ask respondents if they favor the death penalty exaggerate support for capital punishment. They assert that the right question is whether respondents would favor death over some other alternative punishment such as life in prison. When the Gallup polling organization asks people if they would prefer death or life without parole for those convicted of murder, roughly the same percent support LWOP as do death (See figure 24.10). In 2006, 48 percent of those polled favored LWOP while only 46 percent favored the death penalty for those convicted of murder. Over the past twenty years, support for LWOP as the preferred penalty for murder has increased.

(p. 782) VI. Problems in Administering the Death Penalty

If we were to design a system of capital punishment without knowing whether we personally would ever be caught up in it, we would likely want to build one that was fair and produced fair outcomes. By fair procedures we would want things like impartial law enforcement officers investigating the case, and prosecutors who willingly share any exculpatory evidence they uncover. We would want the evidence presented to be objective and free of bias or distortion, we would want competent defense attorneys defending cases, and we would want avenues to appeal any errors. By fair outcomes, we would like to have a death penalty system that culls only the “worst of the worst” offenders, and that the death be reserved only for those who commit the most heinous and egregious offenses. While this is what we may want in our death penalty system, we have to balance that against the knowledge that any piece of machinery built and operated by human beings is going to have some problems in working properly. The complicated machinery of the death penalty is no exception.

(p. 783) A. Executing the Innocent

While there has been no unambiguously documented case of an innocent person being executed, there are cases where the issue remains in doubt. Cameron Todd Willingham was executed in Texas in 2004. Willingham was convicted of setting fire to his house resulting in the death of his three children. Local and state fire investigators testified that “scientific evidence” (burn and pour patterns on the house floors and a spider “shatter pattern” on some glass that investigators claim showed that a fire accelerant had been used to set the fire) showed that the blaze had been deliberately started. To the moment of his execution Willingham, who refused an offer to plead guilty in exchange for a life sentence, protested his innocence. The year after Willingham was executed, Texas created the Forensic Science Commission to investigate charges of scientific mistakes or misconduct in Texas criminal cases, and the panel began looking into the Willingham case. It commissioned Craig Beyler, a nationally recognized fire expert, to examine the evidence in the Willingham case. Beyler’s unambiguous conclusion was that there was no way that arson could be established by the evidence.

Since 1973, 138 people in twenty-six different states convicted of a capital crime have later been found to be innocent (none of these were executed). From 1973 to 1999, there was an average of 3.1 exonerations per year, but from 2000 to 2007, there has been an average of 5 exonerations per year. With twenty-six different states having at least one exoneration, almost 75 percent of death penalty states have convicted an innocent person. The problem with innocents being convicted appears endemic.

Some argue that the discovery of the innocence of these people before they were executed shows that the system “works.” However, we have the troubling fact that many of these eventually exonerated were not found to be innocent because of actions on the part of legal officials. The case of Anthony Porter is a good example. Porter was convicted of two murders in Chicago in 1983 and sentenced to death. He was within two days of being put to death in 1998 when the Illinois Supreme Court granted him a stay. Porter’s case was taken up by a Northwestern University journalism professor and his students. After their extensive investigation and the work of a private investigator, the students identified the real killer, who confessed to the crime. Porter had spent nearly fifteen years of his life and came within fifty hours of being executed before he was exonerated.

B. Ineffective Counsel

Capital defendants have had a right to effective assistance of counsel since 1932 in the Powell v. Alabama case (involving the “Scottsboro boys”). It has never been precisely clear what “effective counsel” in capital cases means. The US Supreme Court in Strickland v. Washington (466 U.S. 668 [1984]) tried to provide some criteria by setting up a two-pronged test: ineffective counsel are deficient under “prevailing (p. 784) professional norms,” and perform so poorly at trial that it prejudices the outcome of the case (the outcome would have been different with a different lawyer).

The extensiveness of the problem of incompetent defense counsel was revealed by James Liebman and his colleagues (Liebman et al. 2000, 2002). They followed up 5,760 death sentences imposed from 1973 to 1995 and found two important things. First, errors in 68 percent of cases required that the conviction or the penalty be overturned. Second, one of the two primary reasons for the errors was the incompetence of defense lawyers.

Here are a few examples. A Texas murder suspect, George McFarland, was represented by defense counsel John Benn. The seventy-two-year-old Been had not tried a capital case in Texas for twenty years, spent only four hours preparing for the trial, never examined the crime scene, never interviewed a witness, filed no motions in the case, and visited his client only twice before trial. Further, according to newspaper reporters who attended the trial, Mr. Benn appeared to be asleep for most of the trial. The judge dismissed the significance of Mr. Benn’s sleeping arguing that “the Constitution says everyone’s entitled to the attorney of their choice … [it] doesn’t say that the lawyer has to be awake” (McFarland v. State, 928 S.W.2d 482 [Tex. Crim. App.], [1996]).

In a Georgia case, the defendant’s court-appointed lawyer barely defended his client and presented almost no mitigating evidence during the penalty phase. The only comments the attorney made to the jury were:

You have got a little ole nigger man over there that doesn’t weigh over 135 pounds. He is poor and he is broke. He’s got a court appointed lawyer…. He’s ignorant. I will venture to say that he has an IQ of not over 80. Isaacs & Dungee v. Kemp, (778 F.2d 1482 [11th Cir. 1985]), cert. denied, (476 U.S. 1164 [1986])

Had the attorney bothered to investigate, he would have discovered that his client was not merely “ignorant” with an IQ “not over 80” but borderline mentally retarded with an IQ of about 68.

An indication of how widespread incompetent counsel is in capital cases was revealed in a study reported in the National Law Journal (1990). The authors examined the quality of defense counsel in six southern states and found that lawyers in Texas who had tried a death penalty case were nine times more likely to have been professionally disciplined than non-capital lawyers in the state, and in Georgia and Alabama twenty-six times more likely. In Louisiana they were forty-seven times more likely to have been disbarred, suspended from their law practice, or otherwise professionally disciplined.

C. Misconduct

In Berger v. United States (295, U.S. 78 [1936]), the US Supreme Court held that “the prosecutor’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done…. While he may strike hard blows, he is not at liberty to (p. 785) strike foul ones.” This implies that prosecutors and law enforcement officers are not free to do what they please to make their case, but must pursue justice and must do so without “striking foul blows.” Easier said than done, for in the pursuit of justice or “the truth” prosecutors and law enforcement officers make mistakes. They are under great pressure to solve serious, brutal crimes, and sometimes that pressure leads them to ignore or underweight evidence, which they might not normally have accepted or might have questioned more skeptically. They may develop theories about a case based upon an initial suspect, and their eyes may become closed to evidence exculpating their initial suspect or evidence that points in a different direction. As a result, mistakes are made. Liebman and his colleagues discovered that mistakes made by prosecutors and police were one of the two most frequent sources of legal error.

The case of Rolando Cruz is a good example. Chicago police and prosecutors were under great pressure to find the murderer of ten-year-old Jeanine Nicarico, a case that had remained unsolved for years. Cruz and Alejandro Hernandez implicated each other in the crime in order to get a $10,000 reward. The pressure the police and prosecutors were under to solve the case, and perhaps their own belief in his guilt, may have led police to concoct a story that Cruz not only confessed to the killings during interrogations but that he had “visions” and saw things about the crime that only the killer would have known. Perhaps bolstered by the police’s confidence that they had the right man, prosecutors saw no reason to investigate other suspects such as Brian Dugan, who had also confessed to the crime. After several mistrials of Cruz, a Chicago police officer asserted that police had lied about Cruz’s visions and confession. Even after this, however, Chicago prosecutors continued to believe that Cruz was involved. These examples are not isolated. Liebmann and colleagues found that prosecutorial suppression of possibly exculpatory evidence comprised about 20 percent of all the reversals they studied.

D. Jailhouse “Snitches” and Junk Science

In many capital cases reversed on appeal, the prosecution relied on testimony from jail-house informants or “snitches,” or on “junk science.” Northwestern University’s Center for Wrongful Convictions documented that a snitch had been used by the prosecution to bolster their case in respect to 51 of the 111 persons (46 percent) who had been exonerated of a capital crime up to the end of 2004 (Northwestern University 2005).

Frequently, exonerated persons are found to have been the victims of junk science—scientific findings of doubtful credibility. For example, Ray Krone of Phoenix, Arizona was convicted and sentenced to death for the murder of Kim Ancona, a cocktail waitress. Krone was convicted in part because a state expert testified that bite marks found on Ancona matched teeth impressions from Krone. Testimony from the same expert was used to convict Robby Lee Tankersley of the rape and (p. 786) murder of a Yuma, Arizona, woman. The problem is that bite marks or tooth impressions are not unique identifiers like fingerprints and can change over time. The American Board of Forensic Odontology is so skeptical of their validity that it has urged its members to use great caution in providing testimony about teeth impressions. Krone was subsequently exonerated when DNA evidence proved he could not have been the killer.

Ronald Keith Williamson was convicted and sentenced to death in Ada, Oklahoma, for the rape and murder of Debbie Sue Carter. Williamson’s conviction was secured in part by a snitch and in part by the testimony of an Oklahoma forensic scientist who claimed that hairs found at the scene “matched” those of Williamson. Hair matching is notoriously inaccurate, and another state expert who analyzed hair fibers from the scene found no “match” to Williamson, but her findings were buried for more than ten years. Williamson came within five days of being executed before DNA tests exonerated him, but not before he had spent eleven years in prison.

All of these problems leave you wondering, “What can we possibly do, murderers deserve a severe penalty, but I just don’t know about the death penalty. There seem to be so many things that can and do go wrong, but what other choice do we have?” One other choice is life in prison without the possibility of parole.

VII. LWOP

Some death penalty opponents argue that the maximum punishment should be life without the possibility of parole. An LWOP sentence is available in all thirty-five states that have the death penalty and in fourteen of fifteen states that do not have it (Alaska is the only exception). Figure 24.3 showed the death sentencing rate per 100,000 population in the United States from 1977 until 2008. Since 1996 there has been a dramatic decline. By 2008 the rate was lower than at any time since 1977. During approximately the same time period, the number of LWOPs increased from 12,453 in 1992 to 41,095 in 2008, an increase of 230 percent (Nellis and King 2009).

The public appears to support the use of LWOP sentences for murderers, and this sentence offers many advantageous alternatives to the death penalty. It is arguably no worse (and likely no better) a deterrent to murder, it is almost as effective at incapacitating, it is an onerous penalty that reflects society’s condemnation of murder, and it is likely to be less burdensome on taxpayers. In addition, there is one undeniable advantage of LWOP—mistakes can be corrected. A problem with the death penalty that concerns many Americans is the possibility that an innocent person may be wrongly executed. The decline in the number of death sentences and increase in the number of LWOP sentences may be an effect of that concern.

(p. 787) The United States is one of a handful of countries that imposes LWOPs on children (Amnesty International 2005). All countries except the United States and Somalia have ratified the Convention on the Rights of the Child, which explicitly forbids life imprisonment without parole for offenses committed by persons below eighteen years of age. There are now more than 1,700 people in state prisons in the United States serving LWOP sentences for crimes committed as children (Nellis and King 2009). Other countries with LWOPs include Australia, Denmark (although one serving a real life sentence may apply for a pardon and reduction in sentence after serving twelve years), England, France, North Korea, Nigeria, Malaysia, and the Netherlands (though a person can apply for a royal decree, which can reduce the sentence).

Most Western European countries do not have LWOPs, and those that do use it only rarely. This is not the case in the United States. The Sentencing Project in 2008 reported that there were more than 40,000 inmates (1,333 of whom were women) serving LWOP terms, an increase of 22 percent since 2003 and an increase of 230 percent since 1992. In six states (Illinois, Iowa, Louisiana, Maine, Pennsylvania, and South Dakota) and the federal system, all life sentences were LWOP sentences (Nellis and King 2009). The racial disparities seen in death penalty statistics are also noticeable for LWOPs. Although African Americans comprise about 45 percent of all life with parole sentences, they make up 56 percent of all LWOP sentences. For juvenile LWOP sentences, about 47 percent of all life with parole sentences were African American while 56 percent of all LWOP sentences are African American.

VIII. Conclusion

Most countries that retain the death penalty are likely to continue to do so. Over the past twenty years, most countries that abolished the death penalty did so in order to be eligible for membership in the European Union. Many that retain the death penalty are either Islamist or anti-democratic (China, Iran, North Korea) and are unlikely to abolish their death penalties. Many countries officially have the death penalty (sixty-two as of 2009), but most executions occur in just a few—China, Iran, Saudi Arabia, Pakistan, the Sudan, and the United States.

It is unlikely that the situation will change much in the United States either. The number of death sentences will likely continue to decline as the public continues to be concerned about the possibility of executing innocents and other problems with the death penalty. Public concern about executing innocents is fueled by the constant drip of death row exonerations. It is likely that there will continue to be a few each year, enough perhaps to keep the public wary of an innocent person being (p. 788) put to death, although a majority already believes that this has happened. It is doubtful if those states that contribute most to the execution numbers will stop their practice. High execution states are southern states that historically have used the death penalty. We will likely see something similar to what occurred during from the 1950s to the 1960s when the number of executions was reduced each year to a handful.

Lawyers will continue to attack the death penalty, and scholars will continue to study it. One area where interests may converge is execution of the mentally ill. The American Civil Liberties Union has estimated that about 10 percent of the more than 3,400 offenders on death row have a severe mental illness (Malone 2005), but many of these illnesses are not severe enough to meet the current standard. Devising a standard for the execution of the mentally ill will not be easy because unlike youth (age) and mental retardation (IQ), where to draw the line with mental illness is much more elusive.

Another area where research and public policy interests converge is cost. Since many states and counties have recently faced large budget deficits, it is not clear that they will be able to afford the death penalty. Unfortunately, it is not exactly clear how much money the death penalty costs or what is achieved in return via crime control. While cost estimates have been made, there has been no systematic study of the cost of the death penalty because no one tracks the costs at each step of the capital process.

Another important area for research concerns the effects of victim impact evidence in capital cases. In all capital punishment states, family members, relatives, even friends and co-workers of the slain victim can present written and oral testimony at the sentencing hearing on the impact the murder has had on their lives. These statements include assessments by survivors about the value of the victim and how much they are missed, the impact the murder has had on the lives and physical and emotional health of the survivors, and sometimes an impassioned plea as to what sentence the family would like to see imposed. These are touching, highly emotional statements that are virtually impossible for the defense to rebut and may have a volatile impact on the emotions and sympathies of the sentencer. Research in behavioral economics about the “identified victim” indicates that sympathy is more easily generated for a victim who is clearly and saliently identified than for one whose life is not so clearly portrayed. Victim impact statements are sometimes presented to the jury in written form, sometimes by live testimony, and other times in elaborate videos that depict the life of the slain victim complete with heart-wrenching background music. The Supreme Court has recently decided (Kelly v. California 129 S. Ct. 564 [2008]) against any attempt to regulate these victim-impact statements but the question remains whether their effect on the defendant is highly prejudicial. Like many things about the death penalty, it remains highly controversial.

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                                                                                                Notes:

                                                                                                (1) . When I refer to an executing being “in” a county, I refer to the county where the case was tried, not the county where the actual execution occurred.

                                                                                                (2) . One way to compare heterogeneity is to calculate the coefficient of variation (CV), which is the ratio of a standard deviation to its mean. For execution rates across death penalty states in figure 1 the CV is 1.365, for the state of Texas it is 2.141.