The Death Penalty

CHAPTER OUTLINE

Capital Punishment
The debate over capital punishment
Retribution, deterrence, and incapacitation are usually cited as the reasons for keeping the death penalty.
Arguments supporting capital punishment
The death penalty deters criminals from committing violent acts.
The death penalty serves justice by paying killers back for horrible crimes.
The death penalty prevents murderers from doing further harm.
The death penalty is less expensive than holding violent criminals in prison for decades or for life.
Arguments opposing capital punishment
There is no evidence that the death penalty deters violent crime.
It is wrong for a government to participate in the intentional killing of its citizens.
The death penalty is applied in a discriminatory fashion.
Innocent people have been executed.

The Death Penalty in America
The death penalty has been controversial since colonial times; executions carried out in public until the 1830s; strong historical roots in American culture.
Death Row Population
Between 1930 and 1967 when the Supreme Court ordered a stay of executions, 3,859 men and women were executed by state and federal authorities.
In 1935, 199 people were put to death, but after that, the number began to fall steadily.
After the Supreme Court reaffirmed the constitutionality of the death penalty in 1976, state legislatures quickly enacted new laws providing for the execution of convicted murderers under some circumstances; executions resumed.
The numbers of people facing the death penalty has increased dramatically since 1976.
As of April1, 2004, 3,436 men and 51 women were awaiting execution.
Public Opinion -- Since 1936, Gallup has asked the public, “Do you favor or oppose the death penalty for persons convicted of murder?”
The majority of Americans favored capital punishment until 1960; public support gradually declined to a low of 40% in 1965.
With the rise in crime in the late 1960s, opinion shifted to a tougher stance.
By 1994 there was a major reversal of public opinion with 80% of Americans supporting the death penalty.
When given an explicit alternative to the death penalty the percentage of Americans favoring the death penalty drops to near 50%.
Opinion on the death penalty is somewhat confusing and much depends on the wording of the question.
The public is about evenly split when respondents were asked to choose between life without parole and death.
With 38 states and the federal government authorizing capital punishment, about 160 death sentences are pronounced each year and the number on death row has risen.

The Death Penalty and the Constitution
Death obviously differs from other punishments in that it is final and irreversible. The Supreme Court has examined the decision making process in capital cases to ensure that the Constitution’s requirements regarding due process, equal protection, and cruel and unusual punishment are fulfilled.
Key Supreme Court Cases:
Furman v. Georgia (1972) – the death penalty, as administered, constituted cruel and unusual punishment.
Gregg v. Georgia (1976) – laws that required sentencing judge or jury to take into account specific aggravating and mitigating factors in decided which offender should be sentenced to death were upheld. States also created “bifurcated” proceedings in which a trial determines guilt or innocence and then a separate hearing focuses exclusively on the issue of punishment.
McCleskey v. Kemp (1987) – the court rejected a challenge to the Georgia death penalty law on the grounds of racial discrimination; may have dealt a fatal blow to hopes of death penalty opponents.
In June 2002, Atkins v. Virginia ruled that execution of the mentally retarded was unconstitutional.
Continuing Legal Issues:
Execution of the Insane: Ford v. Wainwright (1986) – Ricky Ray Rector and Washington v. Harper (1990). Although the Supreme Court has ruled that the insane should not be executed, how competence should be determined remains an issue. A second issue concerns the morality of treating an offender’s mental illness so that they can be executed.
Execution of Juveniles: 23 of the 28 death penalty states permit the execution of those under 18 when they committed murder; Thompson v. Oklahoma (1988), Stanford v. Kentucky (1989), and Wilkind v. Missouri (1989); Gerald Mitchell. There are currently 79 juveniles offenders on death row. 17 juveniles have been executed since 1976. (In spring 2005 the Supreme Court ruled in a 5 to 4 decision that juveniles could not be executed)
Effective Counsel: In Strickland v. Washington (1984), the Supreme Court ruled that defendants in capital cases had the right to representation that meets and “objective standard of reasonableness”. Most death penalty defendants are indigent and are provided counsel by the state.
Death Qualified Juries: The Supreme Court has ruled that potential jurors who have general objections to the death penalty or whose religious convictions oppose its use cannot be automatically excluded from jury service in capital cases. However, they can be removed during voir dire. Opponents argue that death qualified juries do not represent a cross-section of the community. Death qualification results in those who are selected for jury duty are more conviction prone and were more receptive to aggravating factors presented during the penalty phase.
Appeals: The writ of habeas corpus is the only means by which the federal courts can hear challenges by state inmates of the convictions and sentences; McCleskey v. Zant (1991) – except in exceptional circumstances, lower federal courts must dismiss second and subsequent habeas corpus petitions. A major study of death penalty appeals found that two out of three convictions were overturned on appeal, mostly because of serious errors by incompetent defense lawyers or overzealous police officers and prosecutors.

Who is on Death Row?
Death row inmates tend to be poorly educated men from low-income backgrounds; the number of minority group members is far out of proportion to their composition in the general population. (See figure 20.4) Most death row inmates have a prior felony conviction. There are currently 51 women on death row.
Where was the crime committed?
About 55% of those under sentence of death are in the South; 24% are in the West; 14% are in the Midwest; 7% are in the northeastern death penalty states of Connecticut, New Jersey, and Pennsylvania.
2/3 of executions from 1976-July 2000 have been carried out in 5 states: Texas (248), Virginia (82), Florida (51), Missouri (50), and Oklahoma (43).
Who was the Prosecutor?
Of the 92 people executed in Texas (1976-1995), 37 were from the Houston area as opposed to 5 from Dallas.
Even within states, the probability that a prosecutor will ask for the death penalty differs.
The discretionary power of prosecutors and the local political environment explain much of these differences.
Was Race a Factor?
African American males make up about 43% of the death row population, yet compose only about 7% of the U.S. population.
Over 80% of capital cases involve white victims, yet nationally only 50% of murder victims are white.
Research shows imposition of the death penalty in Georgia was influenced by the race of the murder victim and, to a lesser extent, the race of the offender.
The death sentence was four times more likely to be imposed when the victim was white.

A Continuing Debate?
On January 31, 2000, Illinois Governor George Ryan, a longtime supporter of the death penalty, called for a moratorium on executions in his state, the first such call in any state.
Ryan noted that since 1976, Illinois had executed 12 people yet freed 13 from death row as innocent.
Ryan said he would authorize executions only if he could be given a “100% guarantee” against mistaken convictions.
This signaled a major shift in death penalty politics.
Juries have imposed far fewer death sentences each year since 2000.
In 2003, there were 144 death sentences, the fewest since 1977.
Innocent Protection Act would make it easier for inmates to have DNA evidence tested and results used to challenge their convictions.