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American Civil Liberties Union Briefing Paper Number 8

+-----------------+THE DEATH PENALTY+-----------------+

Since our nation's founding, the government -- colonial, federal and state-- has punished murder and, until recent years, rape with the ultimatesanction: death. More than 13,000 people have been legally executed sincecolonial times, most of them in the early 20th Century. By the 1930s, asmany as 150 people were executed each year. However, public outrage andlegal challenges caused the practice to wane. By 1967, capital punishmenthad virtually halted in the United States, pending the outcome of severalcourt challenges.

In 1972, in _Furman v. Georgia_, the Supreme Court invalidated hundreds ofscheduled executions, declaring that then existing state laws were appliedin an "arbitrary and capricious" manner and, thus, violated the EighthAmendment's prohibition against cruel and unusual punishment, and theFourteenth Amendment's guarantees of equal protection of the laws and dueprocess. But in 1976, in _Gregg v. Georgia_, the Court resuscitated thedeath penalty: It ruled that the penalty "does not invariably violate the

Constitution" if administered in a manner designed to guard againstarbitrariness and discrimination. Several states promptly passed orreenacted capital punishment laws.

Thirty-seven states now have laws authorizing the death penalty, as doesthe military. A dozen states in the Middle West and Northeast haveabolished capital punishment, two in the last century (Michigan in 1847,Minnesota in 1853). Alas a and Hawaii have never had the death penalty.Most executions have ta

en place in the states of the Deep South.

More than 2,000 people are on "death row" today. Virtually all are poor,a significant number are mentally retarded or otherwise mentally disabled,more than 40 percent are African American, and a disproportionate number

are Native American, Latino and Asian.

The ACLU believes that, in all circumstances, the death penalty isunconstitutional under the Eighth Amendment, and that its discriminatoryapplication violates the Fourteenth Amendment.

Here are the ACLU's answers to some questions frequently raised by thepublic about capital punishment.

=========================================================Doesn't the Death Penalty deter crime, especially murder?=========================================================

No, there is no credible evidence that the death penalty deters crime.States that have death penalty laws do not have lower crime rates ormurder rates than states without such laws. And states that haveabolished capital punishment, or instituted it, show no significantchanges in either crime or murder rates.

Claims that each execution deters a certain number of murders have beendiscredited by social science research. The death penalty has nodeterrent effect on most murders because people commit murders largely inthe heat of passion, and/or under the influence of alcohol or drugs,

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giving little thought to the possible consequences of their acts. The fewmurderers who plan their crimes beforehand -- for example, professionalexecutioners -- intend and expect to avoid punishment altogether by notgetting caught. Some self-destructive individuals may even hope they

_will_ be caught and executed.

Death penalty laws falsely convince the public that government has ta

eneffective measures to combat crime and homicide. In reality, such laws donothing to protect us or our communities from the acts of dangerouscriminals.

=================================Don't murderers _deserve_ to die?=================================

Certainly, in general, the punishment should fit the crime. But incivilized society, we reject the "eye for an eye" principle of literallydoing to criminals what they do to their victims: The penalty for rapecannot be rape, or for arson, the burning down of the arsonist's house.We should not, therefore, punish the murderer with death. When thegovernment metes out vengeance disguised as justice, it becomes complicitwith

illers in devaluing human life.

======================================================

If execution is unacceptable, what is the alternative?======================================================

INCAPACITATION. Convicted murderers can be sentenced to lengthy prisonterms, including life, as they are in countries and states that haveabolished the death penalty. Most state laws allow life sentences formurder that severely limit or eliminate th e possibility of parole. Atleast ten states have life sentences without the possibility of parole for20, 25, 30 or 40 years, and at least 18 states have life sentences with

_no_ possibility of parole.

A recent U. S. Justice Department study of public attitudes about crimeand punishment found that a majority of Americans support alternatives to

capital punishment: When people were presented the facts about severalcrimes for which death was a possible punishment, a majority choselengthy prison sentences as alternatives to the death penalty.

==================================================================Isn't the Death Penalty necessary as just retribution for victims'families?==================================================================

All of us would feel extreme anger and a desire for revenge if we lost aloved one to homicide; li

ewise, if the crime was rape or a brutalassault. However, satisfying the needs of victims cannot be whatdetermines a just response by society to such crimes. Moreover, even

within the same family, some relatives of murder victims approve of thedeath penalty, while others are against it. What the families of murdervictims really need is financial and emotional support to help themrecover from their loss and resume their lives.

=====================================================================Have strict procedures eliminated discrimination in death sentencing?=====================================================================

No. A 1990 Government Accounting Office (GAO) report summarizing several

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capital punishment studies confirmed "a consistent pattern of evidenceindicating racial disparities in charging, sentencing and the impositionof the death penalty...." Eighty-two percent of the studies the GAOreviewed revealed that "those who murdered whites were more li

ely to besentenced to death than those who murdered blac

s." In addition, the GAOuncovered evidence (though less consistent) that a convict's race, aswell as the race of the victim, also influences imposition of the deathpenalty.

A 1987 study of death sentencing in New Jersey found that prosecutorssought the death penalty in 50 percent of the cases involving a blac

defendant and a white victim, but in only 28 percent of the casesinvolving blac

defendants and blac

victims. A 1985 study found that, inCalifornia, six percent of those convicted of

illing whites got the deathpenalty compared to three percent of those convicted of

illing blac

s.In Georgia, a landmar

1986 study found that, overall, those convicted of

illing whites were four times more li

ely to be sentenced to death thanconvicted

illers of non-whites.

African Americans are approximately 12 percent of the U. S. population,yet of the 3,859 persons executed for a range of crimes since 1930, morethan 50 percent have been blac

. Other minorities are alsodeath-sentenced disproportionate to their numbers in the population.This is not primarily because minorities commit more murders, but because

they are more often sentenced to death when they do.

Poor people are also far more li

ely to be death sentenced than those whocan afford the high costs of private investigators, psychiatrists andexpert criminal lawyers. Indeed, capital punishment is "a privilege ofthe poor," said Clinton Duffy, former warden at California's San QuentinPrison. Some observers have pointed out that the term "capitalpunishment" is ironic because "only those without capital get thepunishment."

============================================================Maybe it used to happen that innocent people were mista

enlyexecuted, but hasn't that possibility been eliminated?

============================================================

No. A study published in the _Stanford Law Review_ documents 350 capitalconvictions in this century, in which it was later proven that the convicthad not committed the crime. Of those, 25 convicts were executed whileothers spent decades of their lives in prison. Fifty-five of the 350cases too

place in the 1970s, and another 20 of them between l980 andl985.

Our criminal justice system cannot be made fail-safe because it is run byhuman beings, who are fallible. Execution of innocent persons is bound tooccur.

=======================================================Only the worst criminals get sentenced to death, right?=======================================================

Wrong. Although it is commonly thought that the death penalty is reservedfor those who commit the most heinous crimes, in reality only a smallpercentage of death-sentenced inmates were convicted of unusually viciouscrimes. The vast majority of individuals facing execution were convictedof crimes that are indistinguishable from crimes committed by others whoare serving prison sentences, crimes such as murder committed in the

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course of an armed robbery. The only distinguishing factors seem to berace and poverty.

Who gets the death penalty is largely determined, not by the severity ofthe crime, but by: the race, sex and economic class of the criminal andvictim; geography -- some states have the death penalty, others do not;and vagaries in the legal process. The death penalty is li

e a lottery,in which fairness always loses.

=============================================================Does the law permit execution of juveniles and people who arementally retarded or mentally ill?=============================================================

Yes. In 1989, the Supreme Court upheld as constitutional the execution of16 and 17 year-old (though not 15 year-old) juvenile murderers. The Courtli

ewise upheld the constitutionality of executing mentally retardedpeople. Although juries are permitted to consider retardation as amitigating factor, many people on death row today are mentally retarded.Regarding people who are mentally ill, the Court has held that the EighthAmendment prohibits execution only if the illness prevents the personfrom comprehending the reasons for the death sentence or its implications.

=============================================================

"Cruel and unusual punishment" -- those are strong words, butaren't executions relatively swift and painless?=============================================================

The history of capital punishment is replete with examples of botchedexecutions. But no execution is painless, whether botched or not, and allexecutions are certainly cruel.

Hanging was the most common form of execution throughout the 19th centuryand is still practiced in a few states. Problems often attend hanging: Ifthe drop is too short, death comes through gradual strangulation; if toolong, the jer

of the rope rips the head off. Electrocution succeededhanging in the early 20th century. When the switch is thrown, the body

jer

s, smo

e frequently rises from the head, and there is a smell ofburning flesh. Science has not determined how long an electrocutedindividual retains consciousness, but in May l990, Florida prisoner JesseTafero gurgled, and his head bobbed while ashes fell from it, for fourminutes. And in 1983, it too

three jolts of electricity and ten minutesto

ill an individual in Alabama. The gas chamber was intended to improveon electrocution. The condemned is strapped in a chair and a cyanidepellet is dropped into a container of sulfuric acid under the chair toform lethal gas. The person struggles for air and may turn purple anddrool. Unconsciousness may not come for several minutes. The firingsquad is still administered in Idaho and Utah. The condemned is strappedin a chair and hooded, and a target is pinned to the chest. Fivemar

smen, one with blan

s, ta

e aim and fire. Lethal injection is the

latest technique, first used in Texas in l982 and now mandated by law inmore than a dozen states. Although this method is defended as morehumane, efficient and inexpensive than others, one federal judge observedthat even "a slight error in dosage or administration can leave a prisonerconscious but paralyzed while dying, a sentient witness of his or her ownasphyxiation." In Texas, there have been three botched injectionexecutions since 1985. In one, it too

24 minutes to

ill an individual,after the tube attached to the needle in his arm lea

ed and sprayednoxious chemicals toward witnesses. Another, in 1989, caused StephenMcCoy to cho

e and heave for several minutes before dying because the

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dosage of lethal drugs was too wea

.

Eyewitness accounts confirm that execution by any of these means is oftenan excruciatingly painful, and always degrading, process that ends indeath.

Capital punishment is a barbaric remnant of uncivilized society. It isimmoral in principle, and unfair and discriminatory in practice. Itassures the execution of some innocent people. As a remedy for crime, ithas no purpose and no effect. Capital punishment ought to be abolished

_now_.

+-+| Capital punishment does not deter crime. || Capital punishment is discriminatory and arbitrary. || Capital punishment assures the execution of innocent people. || Capital punishment has no place in civilized society. |+-+