Chapter 12: Capital Punishment

Key U.S. Supreme Court Cases

1775 - The death penalty is used in all 13 U.S. colonies at the outbreak of the American Revolution: Crimes typically covered were arson, treason, murder, burglary, robbery, rape, horse-stealing, and slave rebellion. Hanging was the usual method. 1910- Weems v. United States: In ruling that a penalty was too harsh, considering the nature of the offense, the USSC establishes precedents on cruel and unusual punishment. 1947 - Louisana ex rel. Francis v. Resweber: USSC finds that a second execution attempt following a technical malfunction does not constitute cruel and unusual punishment. 1968 - Witherspoon v. Illinois: USSC forbids the dismissal of jurors based on personal opposition to capital punishment. 1972 - Furman v. Georgia: USSC determines that the death penalty does not violate the Constitution but that the arbitrary and capricious manner of its application in many states does. 1976 - Gregg v. Georgia: Georgia's new death penalty statute is deemed constitutional, and the stage is set for capital punishment to be reinstated in other states. 1977 - Coker v. Georgia: USSC rules that use of the death penalty in rape cases is unconstitutional for rape of an adult woman when the victim is not killed. 1986 - Ford v. Wainwright: USSC rules that executing the mentally insane is cruel and unusual and therefore unconstitutional. 1988 - Thompson v. Oklahoma: People aged 15 or younger when they committed a crime may not be sentenced to death. 2002 - Atkins v. Virginia: USSC prohibits execution of the intellectually disabled but leaves to the states the determination of what constitutes intellectual disability. Ring v. Arizona: USSC rules that jurors, rather than a judge or panel of judges, must determine whether a convicted murderer should receive the death penalty. 2005 - Roper v. Simmons: People aged 17 or younger when they committed a crime may not be sentenced to death. Christopher Simmons was 17 when he kidnapped and killed Shirley Cook. 2008 - Kennedy v. Louisiana: The death penalty cannot be imposed on those convicted of raping a child when the crime did not result in the child's death.

Notable people and execution methods

1890: at Auburn Prison in New York, William Kemmler becomes the first person executed by electrocution after killing his lover with an axe. 1924: Nevada becomes the first jurisdiction in the world to legally execute a person with cyanide gas. 1936: The last public execution in the United States is a hanging in Owensboro, Kentucky. 1977: Gary Gilmore's execution by a firing squad in Utah marks the return of the death penalty's use after a ten year pause. 1982: Virginia executes Velma Barfield by lethal injection, and she becomes the first woman to be executed since the death penalty was reinstated in 1976. 1993: Maryland prisoner Kirk Bloodworth becomes the first death row inmate to be exonerated with DNA evidence. 1996: The hanging of convicted double-murder Bill Bailey in Delaware is America's last execution by hanging. 1999: After twice refusing offers of lethal injection, Walter LaGrand is executed in an Arizona gas chamber and becomes America's last prisoner to be executed by the gas chamber. 2001: Oklahoma City bomber Timothy McVeigh becomes first federal prisoner to be executed in 38 years. 2009: Ohio becomes the first state to execute a death-row inmate with a one-drug intravenous lethal injection rather than the three-drug cocktail used in most states. 2010: Utah death Ronnie Lee Gardner chooses the firing squad over a lethal injection and becomes the last person in America to be executed by firing squad.

The modern period

31 states, the federal government, and the military have death penalty statutes. Most executions take place in the South, fewest in the Northeast. 55% of the persons executed are white, 35% are African-American, 8% are Latino, and 2% are of another race/ethnicity. All jurisdictions with the death penalty have authorized lethal injection as a method of execution.

Commutation of sentence

A reduction of the sentence through action in the executive branch.

Bifurcated trial

A requirement that death penalty cases have two stages, with the first stage being the traditional trial to determine guilt and a second stage to decide the sentence--death or life imprisonment. First trial stage determines guilt, second stage decides sentence of death or life imprisonment.

Guided discretion

A requirement that juries, after determining guilt in the first stage of the death penalty trial, consider both aggravating and mitigating circumstances during the sentencing stage of the trial. During second stage, juries administer capital punishment only after considering both aggravating and mitigating circumstances.

Reprieve

A stay of execution that grants time for something, such as an appeal, to happen.

Deterrence:

Abolitionists: Death penalty will not deter the majority of murders because typically they are emotional, not rational acts. Statistical studies show no measurable relation between homicide rates and the death penalty. Retentionists: The death penalty's deterrent effect is achieved through socialization, so that the individual comes to internalize the association of act and penalty. Some econometric modeling studies find a deterrent effect.

Retribution

Abolitionists: Retribution doesn't require execution. It simply requires society's worst punishment to be applied to its worst crime. If society's harshest punishment is life imprisonment, that becomes the appropriate (and retributive) penalty for murder. Retentionists: It is essentially a social law that a wrongful act must be punished, and lex talionis requires that the punishment reflect the crime. So, execution is society's correct response to murder.

Fairness

Abolitionists: The death penalty is applied most often to men, poor people, and to racial and ethnic minorities whose victims were white—despite murderers also being women, rich people, and Caucasians with minority victims. Retentionists: If men, the poor, and criminals with white victims get the death penalty disproportionately, maybe it's because they disproportionately commit capital murder. Not executing some who deserve it is no reason to stop executing others who deserve it.

Innocence

Abolitionists: Whether the number of actually innocent persons executed is small or large, the possibility of executing an innocent person is reason enough to abolish the death penalty. Retentionists: The horror of a rare mistake is outweighed by the benefits of execution when it is appropriate.

1. Rigid adherence to the lex talionis principle of equality would mean that the death penalty is appropriate only for murder. Crimes of rape, kidnapping, and armed robbery would not be punished by execution, but all murders would be. Under contemporary legal requirements (i.e., only murders with aggravating circumstances are eligible for the death penalty), the principle of equity is tempered with a dose of mercy. 2. Strict following of lex talionis would result in ridiculous and uncivilized punishments because society cannot always treat criminals exactly as they treated their victims. We do not rape the rapists, set fire to the arsonists, or steal from thieves. Nor can we administer several executions to the serial murderer. 3. The principle of equity cannot be met in instances of brutal murder because a strict lex talionis would require that brutal murders be treated brutally by tormenting those who tortured, dismembering those who cut up their victims, and so on. Such behavior by the state would require imitation of the very acts the public so intensely despises.

Achieving a strict principle of lex talionis is very difficult, and, as a result, some self-described retributivists are actually against the death penalty. Paternoster (1991) offers what 3 limitations to lex talionis that turn some retributivists into abolitionists?

The Modern Period: 1972 - present

African Americans were 10-12% of total U.S. population during 20th century, but were 54% of persons executed in mid-20th century. This disproportionate representation was one factor leading the U.S. Supreme Court to declare the death penalty unconstitutional in 1972.

Clemency

An act of leniency in the criminal justice system, such as a reprieve, a commutation, or a pardon.

The Innocence Project

An organization instrumental in securing DNA exonerations of persons who have served time on death row.

1. Mandatory discretion. 2, Guided discretion.

Because each Court justice wrote a separate opinion in 'Furman", it was not immediately clear just what kind of death penalty law would be acceptable to the Court. What 2 major types of laws were tried by different states?

The Early Period: Pre-1972

British settlers brought with them the practice of capital punishment. By the start of the American Revolution, all 13 colonies used the death penalty—typically by hanging. The 19th century saw: - More reliance on imprisonment. - Halting of public executions. - Move to discretionary rather than mandatory capital punishment.

Women on death row often had ineffective counsel or had been subjected to official misconduct by prosecutors during their trials. Half of the women on death row acted with at least one other person, but in most of those cases the co-defendant received a sentence other than death--even in cases where both defendants appeared to be equally culpable. Nearly two-thirds of the women on death row were convicted of killing family members or people they knew. Although no one has calculated the number of men on death row for killing the same categories of people, we know from the general prison population that women who are in prison are more likely than men to have killed family members or inmates. Most women on death row, probably because of their small numbers, live in almost complete isolation, rarely leaving their cells. Such conditions may lead to psychosis or can exacerbate existing mental illness.

In 2004, the American Civil Liberties Union released findings from the first-ever national survey of women on death row. Key findings from the survey include what (King & Bellin, 2004)?

Furman decision (Furman v. Georgia 1972)

In Furman v. Georgia, the U.S. Supreme Court determined that the death penalty was cruel and unusual because it was imposed in an arbitrary and capricious manner. Decision marks the start of the capital punishment's modern period. Ruling was not against capital punishment itself; it was against the way it was being imposed. Presumably, if the arbitrary nature could be removed, death penalty should be constitutional.

Further refinements

It is unconstitutional to execute a person: - Convicted of rape of an adult woman who was not killed (Coker v. Georgia). - Convicted of kidnapping when the victim was not killed (Eberheart v. Georgia). - Convicted of the rape of a child that did not result in the victim's death (Kennedy v. Louisiana). - Who is mentally insane. (Ford v. Wainwright) or intellectually disabled (Atkins v. Virginia). - Who was younger than age 18 when committing the crime. (Roper v. Simmons).

Potential impact

Marshall hypothesis suggests that as people learn more about the death penalty, public support will decline. - Supported by studies finding that once informed about capital punishment's lack of deterrence and its unequal administration, support falls among those who moderately support it. Possible that more information about caprice, bias, and mistake will lead to support for life without parole (LWOP) over the death penalty.

Leaving death row

Most death row prisoners leave death row without being executed. Reasons for removal other than execution include: - Death from other causes. - Receiving clemency. - Sentence or conviction overturned.

Where and who

Most state prisoners on death row are in the South. Almost half of all death row prisoners are in California, Texas, and Florida. Most are white non-Hispanic males. Most were not involved in the criminal justice system at the time of their crime. - Those who were "in the system," were more likely to be on parole than probation.

56% white. 35% black. 8% Latino / Latina. 1% Native American. 0.5% Asian.

Of persons executed since 1976 (NAACP Legal Defense Fund, 2016), the racial / ethnic distribution is what?

Characteristics in common (death row prisoners)

Other than a crime in common, legal rulings tell us that persons on death row should not be mentally ill nor intellectually disabled. Because Atkins v. Virginia left it to the states to determine what constitutes a mental disability, some states have executed people who would have been disqualified in another state.

Trends

Public opinion for the death penalty was often under 50% prior to 1972. Support peaked at 80% favoring in 1994. Support has been hovering around 60% for the last several years (with the lowest level, 60%, occurring in 2013).

Pardon

Releases the person (partially or fully) from the legal consequences of the crime.

Proportional retributivism

Requires that the worst crime in any society be punished with the worst penalty.

Gregg decision (Gregg. v. Georgia 1976)

Ruled that death penalty statutes that provide for bifurcated trials and that direct juries to use guided discretion in deciding the sentence are allowed under the constitution. New Georgia law was designed to be non-arbitrary by using: - Bifurcated trial. - Guided discretion. Supreme Court's Gregg decision upholds this process.

Marshall hypothesis

Spurred by Supreme Court Justice Marshall's opinion for the Furman decision, it suggests that a better informed public generally would oppose the death penalty.

Treason (Arkansas, California, Colorado, Georgia, Louisiana). Aggravated kidnapping (Colorado, Idaho, Montana, and the federal government). Drug trafficking (Florida). Aircraft hijacking / piracy (Georgia, Mississippi).

State statutes for nonmurder capital crimes include what (Snell, 2014)?

1. The early period prior to 1972. 2. The modern period from 1972 forward.

The history of the death penalty in the United States is best understood by viewing it as what 2 historical periods?

Lex talionis

The position of "eye for an eye, a tooth for a tooth."

43% white. 42% black. 13% Latino / Latina 1% Native American. 2% Asian.

The racial / ethnic distribution on death row was what in January 2016 (NAACP Legal Defense Fund, 2016)?

1. The studies do not factor in the effects of noncapital punishments that may also be imposed. 2. The studies use incomplete or implausible models of potential murderer's perceptions of and response to the use of capital punishment. 3. Estimates of the effect of capital punishment are based on statistical models that make assumptions that are not credible.

The review of more than 3 decades of research concluded that studies claiming a deterrent effect on murder rates from the death penalty suffer from what three fundamental flaws?

Hanging

This is the primary execution method in the United States until the 1890s. If the inmate has strong neck muscles, if they are very light, if the "drop" is too short, or if the noose has been wrongly positioned, the fracture-dislocation is not rapid and death results from slow asphyxiation. It is currently an option in New Hampshire and Washington, (as of 2016) but lethal injection is the primary method in both states. (Popular Twentieth-Century Execution Methods) References: 1. Death Penalty Information Center (2016b). Description of execution methods. Retrieved from DPIC website http://www.deathpenaltyinfo.org/descriptions-execution-methods. 2. Wikberg, R. (1992). The horror show. In W. Rideau & R. Wikberg (Eds.), Life sentences: Rage and survival behind bars (pp. 284-303). New York, NY: Times Books.

Electrocution

This was first used in 1888 by New York as a more humane method of execution than hanging. It was presumed to be a relatively painless way to die because death would be virtually immediate, but others suggested that the body fluids must heat close to the boiling point of water in order to generate the steam or wisps of smoke that were often seen after an electrocution. It is currently an option in nine states (as of 2016), but lethal injection is the primary method in each. (Popular Twentieth-Century Execution Methods) References: 1. Death Penalty Information Center (2016b). Description of execution methods. Retrieved from DPIC website http://www.deathpenaltyinfo.org/descriptions-execution-methods. 2. Wikberg, R. (1992). The horror show. In W. Rideau & R. Wikberg (Eds.), Life sentences: Rage and survival behind bars (pp. 284-303). New York, NY: Times Books.

Gas chamber

This was introduced in Nevada in 1924 as a more humane way of execution. It is currently an option in four states (as of 2016), but lethal injection is the primary method in each. Crystals of sodium cyanide are released into the pail beneath a chair where the condemned prisoner is strapped. A chemical reaction occurs that releases hydrogen cyanide gas. The prisoner is instructed to breath deeply to speed up the process, but most prisoners try to hold their breath and some struggle. Some have suggested that the gas chamber tortures the spectators more than the condemned because it is an unpleasant thing to watch. (Popular Twentieth-Century Execution Methods) References: 1. Death Penalty Information Center (2016b). Description of execution methods. Retrieved from DPIC website http://www.deathpenaltyinfo.org/descriptions-execution-methods. 2. Wikberg, R. (1992). The horror show. In W. Rideau & R. Wikberg (Eds.), Life sentences: Rage and survival behind bars (pp. 284-303). New York, NY: Times Books.

Abolitionists

Those favoring the abolition of the death penalty.

Retentionist

Those who favor keeping the death penalty.