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Capital Punishment

Further Readings

Capital punishment, also known as the death penalty, is the lawful impositionof death as punishment for crimes. Thirty-eight states, as well as the federal government, recognized capital punishment as of 1998; Maine, Massachusetts, Rhode Island, Vermont, Iowa, Michigan, Minnesota, North Dakota, Wisconsin,the District of Columbia, West Virginia, Alaska, and Hawaii did not. Lethal injection, electrocution, lethal gas, hanging, and firing squad were the methods of execution, from most common to least common, respectively. Although federal law authorizes lethal injection, the state law where the crime was committed applies for offenses under the Violent Crime Control and Law EnforcementAct of 1994.
The United States stands apart from Western Europe's clear opposition to thedeath penalty. Nevertheless, the United States is one of 94 countries and territories in the world that use the death penalty. Most Eastern European nations retain the death penalty. Fifty-seven countries prohibit capital punishment for all crimes; 28 recognize capital punishment but do not use it. Another15 retain it only for exceptional crimes such as crimes committed in violation of military law or certain wartime circumstances. Closer to the United States, Canada abolished the death penalty and Mexico retains it but does not useit.
History of Capital Punishment in the U. S. and the Abolitionist Movement
The first colonists, based upon long-standing English tradition, brought theidea of capital punishment with them. Until the nineteenth century in England, the death penalty could be imposed for more than 200 different crimes, ranging from the obvious, such as murder, to the inconceivable including theft oflinens from a bleaching ground. The first recorded use of capital punishmentoccurred in 1608 in the Jamestown Colony, Virginia. Laws drawn by the Massachusetts Bay Colony in 1636 identified idolatry, witchcraft, blasphemy, murder, assault in sudden anger, adultery, statutory rape, sodomy, manstealing, perjury in a capital trial, and rebellion as offenses punishable by death; an Old Testament reference accompanied each listing.
Following the Revolutionary War, 11 colonies adopted new constitutions. Nineof the colonies prohibited cruel and unusual punishment, but all permitted capital punishment. The First Congress passed a 1790 law authorizing the deathpenalty for robbery, rape, murder, and forgery of public securities. Over 160known executions took place during the eighteenth century. For centuries tocome, the Fifth and Eighth amendments to the Constitution became the focal point of ensuing controversies over the death penalty.
Opposition to the death penalty in America has existed since the seventeenthcentury, gaining momentum around the time of the Revolutionary War and shortly thereafter. Dr. Benjamin Rush, Judge William Bradford, the Philadelphia Society for Relieving Distressed Prisoners, and the Philadelphia Society for Alleviating the Miseries of Public Prisons incited the early movement. In 1847,Michigan became the first state to abolish capital punishment. By 1850, ninestates had abolition societies. However, the Civil War slowed momentum of theabolitionists. One key victory of the nineteenth century abolition movementwas elimination of mandatory capital punishment sentences.
Despite the sometimes vigorous opposition and gains made by the abolitionists, the use of capital punishment grew along with the country. Nearly 1400 documented executions took place during the nineteenth century. Early in the twentieth century, the Prohibition Era and Great Depression brought the abolitionmovement to a near stand-still. As a result, the 1930s and 1940s saw the highest levels of executions with between 100 and 200 prisoners executed annually. The 1950s and 1960s began to witness a decline in executions, due partly to increasing appeals in courts following initial convictions and sentencing.From 1930 through 1997, 4,291 executions occurred of which over 3,800 took place between 1930 and 1964. Support for the death penalty declined slightly inthe 1960s, but grew again by the late 1970s. By 1996 over 70 percent of Americans supported the death penalty according to polls. By the close of the twentieth century, the abolitionist movement remained a vocal minority unable tosway public opinion or make significant legislative gains.
Constitutional Challenges to the Death Penalty
The notion that the death penalty constituted cruel and unusual punishment would seem integral to the abolitionist argument, but the constitutionality ofcapital punishment was virtually unchallenged until late in the twentieth century. For many years, the Eighth Amendment's prohibition against cruel and unusual punishment was associated with torture and barbarous punishments, not capital punishment. In 1967, a nationwide moratorium on capital punishment gave the courts time examine its constitutionality. Finally, the U.S. Supreme Court in Furman v. Georgia (1972) found that certain capital punishmentlaws did constitute cruel and unusual punishment because of the arbitrary waythey were applied.
The Fifth and the Eighth Amendments hold the key to the constitutionality debate. The Eighth Amendment, the most frequently cited in arguments against thedeath penalty, prohibits cruel and unusual punishment. The Fifth Amendment provides that no person shall be "deprived of life . . . without due process of law." It also provides that no person "shall be held to answer for a capital...crime" without indictment by a grand jury, and prohibits a person from being "twice put in jeopardy of life" for the same offense. This language, in addition to the limited record of debates on the subject while writing the Bill of Rights and its common use at the time, strongly suggests the framers intended capital punishment to be lawful when due process rights were respected.Indeed, the Eighth Amendment, at the time of passage, was understood to onlyprohibit such disturbing forms of capital punishment as crucifixion or burning at the stake. Chief Justice Warren Burger's dissent in Furman, in essence supporting use of capital punishment, was based upon his reading of the lenient language in the Fifth Amendment.
Furman was not the death knell for capital punishment laws, however. Although an unusual victory for abolitionists, the ruling did not declare allcapital punishment unconstitutional,per se. Several states quickly drafted new laws correcting the deficiencies highlighted by Furman. The new laws were quickly put to the test. In 1976 the Court abruptly ended the execution moratorium by upholding some of the new capital punishment legislation. The state statute upheld in Gregg v. Georgia became a model for later death penalty laws. As described in Gregg, a typical death penaltyshould include a two-part trial. The first part determines guilt, the secondis a sentencing phase. During sentencing the jury weighs mitigating and aggravating factors to determine whether the death penalty is appropriate, or whether a lesser sentence, commonly life imprisonment, should be imposed. Floridaadopted a three-part system in which an advisory jury makes recommendationsto a judge, who then decides the punishment after weighing the mitigating andaggravating factors.
Although executions were restricted only to murder convictions after 1964, rape accounted for a large number of executions between 1930 and the 1960s. In1977, the Court ruled out the death penalty for rape by finding that the punishment was too excessive for the crime and therefore unconstitutional. By theclose of the twentieth century, capital punishment was constitutionally appropriate only for criminal homicide. The death penalty was even determined unconstitutional for an individual involved in a felony crime during which a murder is committed by someone else. In other rulings, the Court also ruled thatthe Eighth Amendment does not prohibit execution of a mentally retarded person, although the retardation is a mitigating factor for the jury to consider.Moreover, the Court also upheld a death sentence for a juvenile who was at least 16 at the time of the crime.
Racial Bias
One persuasive argument against the death penalty is that its is racially biased. According to the U. S. Department of Justice, Bureau of Justice Statistics, 42 percent of the death row population in the nation were African American in 1997. Yet less than 15 percent of the general population of the United States was African American. Until the latter half of the 1970s, most death row inmates were African American. Aside from the minority affiliation of the executed was the even more striking minority affiliation of the victims whoseassailants were sentenced to death. Between 1977 and 1995, whites accounted for over 80 percent of the murder victims of death row inmates. It appeared that lesser sentences were assessed for the killing of African Americans. The Court, examining the racial disparity issue in McCleskey v. Kemp (1987)ruled that a racially disproportionate executions did not violate the Eighthand Fourteenth Amendments of equal protection if the disparities were not resulting from intentional discrimination against a particular defendant, or did not demonstrate "irrationality, arbitrariness, and capriciousness."
Opponents also charged the death penalty is discriminatory because it is imposed far more often on the poor and uneducated than on wealthy or well-educated Americans. Court-appointed lawyers for indigents are often over-worked andhave little experience in capital cases. Also, court-appointed lawyers are usually only involved in the trial and first round of appeals. After that, inmates are frequently hard-pressed to find an attorney to handle their case on avolunteer basis.
Expense and Length of Process
Though an execution itself is inexpensive--less than $1,000, according to oneestimate--the legal process itself is extremely costly. The state often paysexpenses for both the prosecution and the defense. Because of the two-part process, capital trials are more expensive than others. Death sentences undergo a mandatory review in the state appeal process, and often this step is onlythe beginning on a sequence of delays as defendants file multiple appeals. In 36 of the states condoning capital punishment, automatic reviews of the trials are required. Prisoners also frequently file petitions for writ of habeas corpus in federal court to challenge the constitutionality of their convictions.
The average time for an inmate on death row is 11 years. The Supreme Court has consistently declined to determine whether an extremely lengthy wait on death row constitutes cruel and unusual punishment, although in a 1995 case twojustices noted concern regarding an inmate who had awaited execution for 17 years. The Supreme Court did rule the government must supply counsel to indigent death row inmates seeking habeas corpus review. But a shortage of available lawyers commonly added further to the delay.
In 1996, the Anti-Terrorism and Effective Death Penalty Act went into effect,significantly curtailing habeas corpus appeals. The law generally required state death row prisoners to file their petitions within six months after exhausting all state appeals. In addition, the law instructed federal judges to defer to state courts on constitutional and other issues, unless the ruling by the lower court was "unreasonable." Previously, federal courts oftenintervened when constitutional issues were presented in habeas corpuspetitions. An estimated 558 death sentences were found unconstitutional between January of 1973 and May of 1990.
Many studies attempted to determine the deterrent effect of the death penalty. No consensus emerged. Several indicated some deterrence while others concluded otherwise. However, many death penalty supporters focused more on the retributive nature of the punishment as justification for its use, rather than any deterrent effect.
With only 131 prisoners on death row in 1953, the number first topped 500 inthe late 1960s and grew sharply after 1984. By 1998, 3,335 inmates were undera sentence of death. Whites comprised a slight majority of that number (1,876), and fewer than two percent were female. According to Amnesty International, at least 47 juveniles were on death row in 15 states in 1996 for murders committed at age 16 or 17. Despite the large number of inmates on death row, only 193 executions actually took place during the first half of the 1990s. However, the number of executions began to increase later in 1990s. A total of76 inmates were executed in 1997, the most since 76 in 1955. Eighteen statesexecuted 68 prisoners in 1998. Forty-eight of those executed were white, 18 were African American, and two women the first since 1984.

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