Chapter 13

The Death Penalty

The Death Penalty

• History of capital punishment

• Trends in its use, methods of execution

• Impact and meaning of Furman and Gregg

• Processes for imposing death and appeals

• Juveniles, the retarded and insane

• Death-row populations and routines

• Moral and utilitarian arguments

Early History

• Begins with empires’ need to control soldiers, slaves, conquered peoples

• Religious crimes were main target under early church

• English use rose until 1800s• Symbol of tyranny in early United States

– First banned by Michigan in 1846

• Used mainly in South against slaves

Public Executions

• Executions were a major attraction

• Riotous crowds often a problem

• 1835 – New York moves hangings into prison

• 1890 – New York introduces electric chair

• 1936 – last public execution, a hanging in KY, 20,000 attended

Modern Executions

• Texas leads nation in use of death penalty

• Southern states tend to use penalty most

• Least popular in northeast, northern Midwest

• Murder rates population not closely linked to use of penalty

Race and U.S. Executions

• Over 90% of those executed for rape and burglary (prior to 1996) were minorities

• Blacks executed much more often and at younger ages, especially in South

• Prosecutors and juries biased in use of penalty

• Lynchings and executions peaked in 1930s; Klan control of C.J. common

Furman v. Georgia, 1972

• Ruled that death penalty laws were “arbitrary and capricious”

• This permitted racial bias and undermined deterrent justification– First time social science accepted by Supreme Court

• Informal moratorium from 1967 to 1972

• Commutations for death row inmates

• States re-wrote laws to comply with Furman

Gregg v. Georgia, 1976

• Upheld Georgia’s new statute• New laws describes specific aggravating

factors that justified execution• Murder, air piracy, treason, aggravated

kidnapping and rape of child now listed as capital offenses

• Only use since Gregg has been in murder cases

Further Case Law

• Woodson v. NC, 1976: Mandatory execution for first-degree murder too broad

• Coker v. GA, 1977: Death too severe for non-fatal rape of adults

• Godfrey v. GA, 1980: Vague phrases like “depravity of mind” insufficient criteria

Trial Processes

• Post Furman rulings favor bifurcated trial process

• Separate guilt and penalty phases• Penalty phase requires jury examine

aggravating and mitigating factors• Jurors beliefs about death critical• Penalty phase relies on experts whose

personal beliefs can cloud testimony

Methods of Execution

Method StatesExecutions

Lethal injection 36 + U.S. 580

Electrocution 10 149

Gas chamber 5 11

Hanging 3 3

Firing squad 2 2

Sentencing Issues

• Most states require future dangerousness, causal factors, crime circumstances and potential for reform be examined

• Simmons v. SC, 1994 and Shafer v. SC, 2001:If dangerousness is core concern and life is only alternative, then jury must know that parole is not permitted

• Ring v. Arizona, 2002: Only juries can impose death, judicial control in five states overturned

• Automatic review by state’s highest court

Death Penalty Appeals

• Limits desired to control costs and speed up process

• Average of eight years from conviction to execution in 1998

• McClesky v. Zant, 1991:Limits defendants to one habeas corpus appeal that examines ALL issues related to trial and sentence

Death Sentences, 1977-2001

Executions, 1977-2002

ADEPA

• Anti-Terrorism and Efficient Death Penalty Act– One year after sentence permitted to assemble and

file appeals– 180 days if state assures competent counsel

• Expected to speed process between conviction and execution

The Innocence Issue

• High rate of indigence creates competency of (defense) counsel issues that disturb federal courts

• Reversible errors, correctable legal mistakes in a trial, found in 70% of capital trials

• Penalty supporters feel this reflects conflict of pro-death juries, judges with anti-death appellate courts

• Over 100 men freed from 22 death rows on DNA evidence, 70+ on other types of evidence

Costs • Most place average cost of trial and

execution processes at over $2 million• This is more than 40+ years in prison • Local governments pay with taxes, police and

road funds• Capital punishment usually estimated to be 3

times more expensive than life-without-parole• Costs due to larger number of motions,

lawyers, experts, lengthier trial, complex jury arrangements, and so on

Insanity and the Death Penalty

• Insanity noted after trial raises most issues• Ford v. Wainwright, 1985: Inmate must be

sane enough to understand:1) That they have been sentenced to death2) Why they were sentenced to die

• Deterrent value of execution presumes rationality per common law

• Insane protected as a class, can be executed after sanity is restored – an ethical problem for doctors

The Mentally Retarded

• Series of trials regarding Penry forced presentations on retardation as mitigating factor between 1989 and 2001

• Atkins v. Va, 2002: 8th amendment and basic dignity principles of the classical school were violated by executions of retarded

Juveniles and Capital Punishment

• Persons who committed crime before age 16 cannot be executed unless state law specifies eligibility (16 a “default” age)

• Five states set age at 17, sixteen others and federal government specify age 18

• 82 males await death for acts committed as juveniles

• Seven nations permit execution of juveniles

Technical Problemswith Executions

• Electrocution most problematic when voltage fails and must be rewired

• Lethal injection requires getting needles into veins– Problems with IV drug users, – Violent reactions to drugs noted

• Use of medical procedures violates medical ethics, physician involvement challenged

• Inability to display pain due to drugs masks reality, reduces just deserts/retributive value

Arguments for the Death Penalty

• Deterrence

• Justice/retribution

• Boundary setting

• Victims’ families

Deterrence and the Death Penalty

• Increase in murders during moratorium

• Ignores changes in norms, view of police, handgun availability

• Erlich Study (pre-Furman era data) – Claimed each execution saved up to eight lives– Presumed that all executions had equal

deterrent value throughout nation

Deterrence and the Death Penalty

• Layson and Cameron: Execution predicts deterrence but not as well as probability of arrest, conviction

• Fears of further murders by death inmates not validated by studies of Furman commutees

• These offenders no more or less violent than other violent offenders

Justice and Retribution

• Symbolic, boundary setting value stressed

• Emotional relief for some victim’s families

• Other families object

• Using survivors’ wishes problematic under justice model reasoning

• Presumes fairness of police and judicial processes

Arguments againstthe Death Penalty

• Morality

• Economics

• Brutalization thesis

• Discrimination

• International reputation of United States

Morality of the Death penalty

• Presumes that as a society grows more civilized, its use of violence decreases

• State sanctioned violence especially important

• Questions morality of “vengeance” (retribution)

Brutalization Thesis

• The more violence one is exposed to, the more likely they are to approve its extra-legal use

• Potential killers identify with state, use execution to justify their crimes, seek fame

• Some studies show increased murder rate follows executions

• Differences between acquaintance and strangers killings

Discrimination Issues

• Quality of counsel a major predictor of which killers receive death sentence

• Wealth predicts type and quality of counsel

• Post-Furman era studies1. Race of those executed shows no racial bias

2. Race of victim suggests white lives more valued by sentencing courts

Factors PredictingUse of Death Penalty

• Murder with torture 1.9

• Future risk to others 1.5

• Black defendant 1.4

• Caused great harm 1.0

• Multiple stab wounds 0.9

• Felony murder 0.8

Race of Victims of Death Row Inmates Since 1977

Race of Death Row Inmates Since 1977

Public Beliefs and Death Penalty

• “Evolving standards of decency” guide legality of punishments

• 75%+ of public believes deterrence has been scientifically proven

• 90% + of criminologists, police chiefs take opposite view

• Poll results vary with wording of question on death penalty

Public Beliefs and Death Penalty

• Race and religion are major predictors of support for death penalty

• Pro-life citizens most likely to support it

• International data shows public opinion about capital punishment is unrelated to murder, crime rate