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The lawful infliction of death as a punishment; the death penalty.
Capital punishment continues to be used in the United States despite controversy over its merits and over its effectiveness as a deterrent to serious crime. A sentence of death may be carried out by one of five lawful means: electrocution, hanging, lethal injection, gas chamber, and firing squad. As of 2003, 38 states employed capital punishment as a sentence; 12 states—Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin—and the District of Columbia did not.
The first known infliction of the death penalty in the American colonies occurred in Jamestown Colony in 1608. During the period of the Revolutionary War, capital punishment apparently was widely accepted—162 documented executions took place in the eighteenth century. At the end of the war, 11 colonies wrote new constitutions, and, although nine of them did not allow cruel and unusual punishment, all authorized capital punishment. In 1790, the First Congress enacted legislation that implemented capital punishment for the crimes of robbery, rape, murder, and forgery of public securities. The nineteenth century saw a dramatic increase in the use of capital punishment with 1,391 documented executions. The death penalty continued as an acceptable practice in the United States for some time.
In 1967, a national moratorium was placed on capital punishment while the U.S. Supreme Court considered its constitutionality. In 1972, it appeared that the Court had put an end to the death penalty in the case of Furman v. Georgia 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed 2d 346, declaring certain capital punishment laws to be unconstitutionally cruel and unusual because juries were applying them arbitrarily and capriciously. It seemed as if Furman would mark the passing into history of capital punishment in the United States.
By 1976, Georgia, Florida, and Texas had drafted new death penalty laws, however, and the U.S. Supreme Court upheld them. Of the nine justices, only two, WILLIAM J. BRENNAN JR. and Thurgood Marshall, persisted in the belief that capital punishment is unconstitutional per se. Capital punishment had survived, and so had the controversies surrounding it.
Although the U.S. Supreme Court has held that the Constitution permits the use of capital
punishment, decisions on this issue have divided the Court and have done little to convince opponents of the death penalty that it is fair. Critics have argued that the death penalty is a form of cruel and unusual punishment, that it is applied in a racially discriminatory manner, that it lacks a deterrent effect, and that it is wrong.
Cruel and Unusual Punishment
The Eighth Amendment of the U.S. Constitution prohibits the government from inflicting "cruel and unusual punishments." The controversy over the constitutionality of the death penalty lies in the ambiguity of the phrase "cruel and unusual." The first meeting of Congress addressed the phrase for only a few minutes. Congressman william smith of South Carolina foreshadowed the controversy to come when he stated that the wording of the Eighth Amendment was "too indefinite."
Whereas some argue that the phrase "cruel and unusual" refers to the type of punishment inflicted (such punishments as the severing of limbs, for example, would almost certainly be considered cruel and unusual), others feel that the phrase refers to the degree and duration of the punishment. The U.S. Supreme Court has rejected both interpretations, leaving the death penalty a legal means of punishing certain criminals.
The Fifth Amendment seems to supply a clearer basis for assuming the constitutionality of the death penalty. This amendment states that no one shall be "deprived of life, liberty, or property, without due process of law." From this language, one can conclude that with due process of law, capital punishment may be imposed.
In Furman, the justices who found the death penalty to be unconstitutional pointed to the language of the Eighth Amendment as the basis of their decision. Chief Justice Warren E. Burger, who filed a dissenting opinion, relied heavily upon the language of the Fifth Amendment to support his argument that the death penalty was constitutional.
Evolving Standards of Decency
However, administration of capital punishment is not necessarily constitutional under all circumstances, against all classes of defendants, or for all types of crimes. The U.S. Supreme Court has recognized that what may have been constitutionally permissible when the Eighth Amendment was ratified in 1791 might be cruel and unusual now, if application of the death penalty in particular cases offends the "evolving standards of decency" test. Under this test, courts will examine prevailing opinions among state legislatures, sentencing juries, judges, scholars, the American public, and the international community to determine whether a particular application of the death penalty is cruel and unusual. For example, in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), the Court examined many of these factors and determined that there was no clear consensus against executing mentally retarded defendants who had been convicted of murder.
However, just 13 years later, the Court found that "standards of decency" had evolved to a point where mentally retarded defendants could no longer be made subject to capital punishment without violating the Cruel and Unusual Punishment Clause of the Eighth Amendment. Atkins v. virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (U.S. 2002). The Court emphasized the fact that since Penry 18 states had passed legislation excluding the mentally retarded from the class of defendants who are eligible for capital punishment. Applying the same type of analysis in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15. But the Court did find sufficient proof of consensus against making rape defendants as a class that was eligible for capital punishment, stressing that only one jurisdiction in the country at the time of its decision allowed capital punishment for the rape of an adult woman. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (2002).
Death by electrocution has been challenged several times as being inconsistent with "evolving standards of decency". In a series of Florida cases, the U.S. Supreme Court denied certiorari in appeals where the petitioner offered proof that during the execution the electric chair was engulfed by flames and that smoke had emanated from the inmate's head. But the Florida Supreme Court ruled that death by electrocution does not violate the Eighth Amendment's prohibition of cruel and unusual, citing evidence that execution by electrocution renders an inmate instantaneously unconscious, thereby making it impossible to feel pain when the electrical current is properly maintained. Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999), cert denied, 528 U.S. 1182, 120 S. Ct. 1222, 145 L. Ed. 2d 1122 (2000).
Capital Punishment for DWI-Related Offenses
Many observers expected the "evolving standards of decency" test to be invoked by a North Carolina defendant when prosecutors sought to impose the death penalty for crimes he committed during a 1996 drunk-driving incident that left two college students dead. Thomas Richard Jones was charged and convicted on one count of driving while impaired, one count of assault with a deadly weapon, three counts of assault with a deadly weapon inflicting serious injury, and two counts of first-degree murder under the felony-murder rule. During the penalty phase, the jury rejected the prosecution's arguments for capital punishment, instead sentencing Jones to life in prison.
When Jones appealed his conviction, the North Carolina Supreme Court did not review his sentence under an Eighth Amendment analysis. Rather, the state's high court ruled that any sentence that Jones might have received for first-degree murder would not have been justified, because a first-degree murder charge can only be supported by proof that the defendant possessed a "specific intent" to commit the crime. At a minimum, the court said, proof of specific intent requires evidence that the defendant had "an actual intent to undertake the conduct resulting in death; thus, even if the killing itself was not intended, the actual intent to torture, poison, starve, or imprison the victim must be present … for the killing to qualify as first-degree murder." The North Carolina Supreme Court rejected the state's argument that specific intent could be "implied" from the defendant's reckless conduct. State v. Jones, 538 S.E. 2d 917 (N.C. 2000). No state court since State v. Jones has successfully prosecuted a defendant for first-degree murder arising out of a drunk-driving-related offense.
In 1983, Professor David C. Baldus, of the University of Iowa College of Law, published a study on the capital punishment system in the state of Georgia. The figures he assembled showed that between 1973 and 1979, killers whose victims were white were 11 times more likely to be sentenced to death than were killers whose victims were black.
Baldus's study was used by death row inmate Warren McClesky in an appeal that came before the U.S. Supreme Court (McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262). Although the Court accepted the validity of the study, it found the statistics "insufficient to demonstrate unconstitutional discrimination" or "to show irrationality, arbitrariness, and capriciousness."
Other studies have yielded equally staggering numbers regarding the statistical differences between the system's treatment of blacks and whites. For example, between 1976 and 1995, a total of 245 convicts were executed; 84 percent of their victims were white, although fewer than 50 percent of all murder victims are white. Many critics argue that statistics demonstrating racial bias in the administration of capital punishment prove that the death penalty, even if constitutional in concept, is unconstitutional as applied in the United States—violating at least the Equal Protection Clause of the Fourteenth Amendment.
Justice Lewis F. Powell Jr., who voted with the majority in McClesky to deny a racial-bias challenge to the capital punishment system, later informed a biographer that he since had come to regret his vote.
Consideration of Mitigating Factors
In general, the jury may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence in determining whether capital punishment is the appropriate sentence for a particular defendant. However, the Eighth Amendment does not require courts to instruct a jury during the penalty phase that it has both an obligation and the authority to consider the mitigating factors deemed relevant by state law. Buchanan v. Angelone, 522 U.S. 269, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998). Instead, it is sufficient for a court to instruct the jury that it must impose a life sentence if, after considering "all the evidence," the jury does not believe that capital punishment is justified.
Once convicted and sentenced to death, death row inmates may again cite mitigating factors in making an appeal for leniency or clemency from the state's parole board or another executive branch department. Such appeals often cite mitigating factors that existed either before, after, or at the time the crime was committed. However, parole boards and related executive branch departments are under no obligation to give mitigating evidence any weight, and may typically reject a death row inmate's request for clemency without providing any reason for doing so.
For example, the Texas Parole Board was flooded with requests to grant clemency to Karla Faye Tucker, a death row inmate who had been convicted of brutally killing two people with a pickax during a 1983 robbery. Despite evidence that Tucker was 23 years old and high on drugs at the time of the crime, that she had been addicted to drugs since she was eight years old, and that she had been a prostitute since age 14, the sentencing jury found more compelling other evidence showing that Tucker had a history of violent behavior, that she had received sexual gratification every time she struck one of the victims with the pickax, that she had talked of killing two others to prevent them from telling police about the murders, and that she had planned future crime sprees to raid drug labs, kill the people who worked there, and steal their property.
During her 14 years on death row, however, Faye underwent a religious conversion to Christianity that many people believed was sincere. In fact, religious leaders from around the world, including Pope John Paul II, made personal appeals to have Tucker's sentence commuted to life in prison. The European Parliament and the United Nations also publicly sought clemency for Tucker. The Karla Faye Tucker who was on death row, they all said, was not the same person who had committed the gruesome murders more than a decade earlier.
The Texas board of pardons & Paroles refused to stay the execution, finding that neither Tucker's gender nor her religious conversion were sufficient grounds to commute her sentence. "Mercy was already considered by the jurors when they sentenced her to die," the chairman of the pardons and parole board said. Then-Texas Governor George W. Bush also rejected Tucker's requests for clemency. Tucker challenged the adequacy of the Texas executive-clemency procedures, but the Texas Court of Criminal Appeals concluded that "[a]n inmate has no constitutional or inherent right to commutation of her sentence." Ex parte Tucker, 973 S.W. 2d 950 (Tex. Crim. App. 1998). Clemency, the court wrote, is a matter that rests solely within the "unfettered discretion" of the executive branch of the state government. On February 3, 1998, Tucker became the first woman to be executed in Texas since the Civil War.
Since the turn of the twentieth century, many studies have been conducted on the deterrent effect of capital punishment. More often than not, the results have proved inconclusive; no hard evidence exists to verify the theory that the threat of such a harsh punishment will sway criminals from their actions. In fact, some statistics indicate that the opposite is true; in some instances, states that employ capital punishment have a higher incidence of homicide than neighboring states that do not employ the death penalty.
The U.S. Supreme Court justices in the Furman case, both concurring and dissenting, often referred to studies that showed no conclusive correspondence between capital punishment and the frequency with which capital crimes were committed. A later accounting revealed that during the moratorium on capital punishment, from 1967 to 1976, the national homicide rate nearly doubled. Since then, depending on the study conducted, evidence has been presented to show that capital punishment has no deterrent effect; that the implementation of the death penalty is directly related to a decrease in capital crime; and that the implementation of the death penalty is directly related to an increase in capital crime.
Although some opponents of the death penalty are quick to argue that capital punishment has no deterrent effect, many supporters feel that the purpose of capital punishment is retribution, not deterrence. Many individuals, especially those with close ties to the victims, are more often concerned that the particular convicted criminal pay for the crime than that other persons be deterred through punishment of the perpetrator.
Morality and Emotion
Emotions might have played a part in the Furman decision. Burger, in his dissent, warned that the Court's "constitutional inquiry … must be divorced from personal feelings as to the morality and efficacy of the death penalty." Justice Harry A. Blackmun, who joined Burger in his dissent, later renounced his belief in the death penalty for reasons that another justice saw as partly personal.
In 1994, in Callins v. Collins, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435, Blackmun wrote a dissenting opinion in which he condemned the practice of capital punishment in the United States. He argued that "no combination of procedural rules or substantive regulations ever [could] save the death penalty from its inherent constitutional deficiencies"—"arbitrariness, discrimination, caprice, and mistake." Justice Antonin Scalia criticized Blackmun's position, writing that Blackmun had based his dissent on intellectual, moral, and personal reasons, rather than on the authority of the Constitution.
Other controversial aspects of capital punishment disturb the public. Between 1976, when the moratorium on capital punishment was lifted, and 1995,
- More than 50 mentally ill or mentally impaired individuals were put to death
- Nine juveniles were executed
- The cost of executing a death row inmate was three to six times as high as incarcerating him or her for life without parole.
Despite the controversy, the constitutionality of capital punishment has been upheld and continues to be an acceptable practice in thirty-eight states, where nearly 3,500 inmates waited on death row throughout the United States by the end of 2001.
Banner, Stuart. 2002. The Death Penalty: An American History. Cambridge, Mass.: Harvard Univ. Press.
Bedau, Hugo Adam, and Paul G. Cassell, eds. 2004. Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford Univ. Press.
Bigel, Alan I. 1994. "Symposium on Capital Punishment—Justices William J. Brennan, Jr., and Thurgood Marshall on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court." Notre Dame Journal of Law, Ethics, and Public Policy (Thomas J. White Center on Law and Government).
Foley, Michael A. 2003. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. Westport, Conn.: Praeger.
Rodriguez, Roxanne. 2001. The Modern Death Penalty: A Legal Research Guide. Buffalo, N.Y.: W.S. Hein.
Von Drehle, David. 1995. Among the Lowest of the Dead: The Culture of Death Row. New York: Times Books.