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Crime and Punishment in the U.S. Capital Punishment Definition: Execution of defendants convicted of capital crimes Criminal Justice Issues: Capital punishment; punishment Significance: Capital punishment has been one of the most debated topics in criminal justice policy in the United States, which at the beginning of the twenty-first century was one of the few remaining Western democracies still to employ the death penalty. While the use of capital punishment as a criminal justice policy has been substantially reduced or eliminated in many countries around the world, the death penalty continues to be utilized as the ultimate punishment for criminal behavior. Between 1608 and the year 2004, the number of people legally executed in what is now the United States has been estimated to be between 20,000 and 22,500. From January, 1977, to July, 2004, alone, 921 executions were carried out in the United States. By the end of 2004, more than 3,400 convicted felons were being held on death rows across the United States. By that time, thirty-eight states, the federal government, and the U.S. military had laws permitting the use of capital punishment. Although a small portion of states account for the majority of executions, seven of the jurisdictions--including the U.S. military--conducted no executions at all between 1972 and 2003. Of the thirty-eight states with the death penalty, all but three also permit the sentencing of offenders to life in prison without the possibility of parole. Although the specific circumstances of death-eligible cases vary from jurisdiction to jurisdiction, few states now authorize the use of capital punishment for offenses other than murder. At the federal level, the death penalty can be sought in aggravated murder cases, as well as in four offenses that may not involve homicide: treason, espionage, large-scale drug trafficking, and attempted murder of officers, witnesses, or jurors in cases involving continuing criminal enterprises. The majority of capital cases involve adult male offenders, but a small percentage involve women and juvenile offenders. Women represent a small percentage of death-row inmates and felons who are actually executed. Throughout the twentieth century and the first years of the twenty-first century, women accounted for only forty-nine executions in the United States. Only ten women were executed between 1976 and 2004, and forty-nine women awaited execution in 2004. Also representing a small proportion of the death-row population and number of executions are juvenile offenders. Twenty-two executions of offenders who committed their crimes when they were under the age of eighteen account for less than 2 percent of all executions carried out between 1976 and 2004. In 2004, seventy-two offenders on death rows in twelve states were considered juvenile offenders. Nineteen of the thirty-eight states with death-penalty laws permitted the execution of juvenile offenders, but only seven states carried out such sentences between 1976 and 2004. Capital Punishment in History The history of capital punishment in America dates back to early colonial times. Early settlers were influenced by their British counterparts, whose laws mandated the death penalty for more than 150 separate crimes. While the laws on death sentencing varied from colony to colony, its practice was dramatically reduced in comparison to Britain. Massachusetts had one of the strictest laws on the books, with twelve crimes that were considered "death-eligible." In contrast, colonies dominated by Quakers were more lenient in their use of executions. They restricted the death penalty to cases of treason and murder. However, decisions to execute sparingly were not made solely for philosophical reasons, but because of the colonies' need for able-bodied workers. The number of executions in the United States increased significantly during the nineteenth century. However, the rate of executions reached its peak during the 1930's, when more than sixteen hundred people were put to death in the country. Methods of Execution Just as the policies on capital punishment have evolved from colonial times, so, too, have the methods by which executions are carried out. Early methods, such as burning at the stake and beheading, have since been ruled as unconstitutional on the grounds that they violate the Eighth Amendment's protection against cruel and unusual punishment. Death by hanging is the only early method that has stood the test of time; it has been responsible for the greatest number of executions. A few U.S. states still permit hanging, but methods such as electrocution, firing squads, and lethal gas are now either rarely used or have been declared unconstitutional. By the early twenty-first century, lethal injection had become the primary method of execution in most states with death penalties. It was created in an effort to provide a more humane and socially acceptable method of execution. Lethal injections generally use three drugs: sodium thiopental sedates the convicted felon; pancuronium bromide provides a total muscle relaxant; and potassium chloride induces cardiac arrest, which results in death. Opposition to Capital Punishment As executions surged during the nineteenth century, an anti-death-penalty movement also began to develop. During that period, several changes were made to the policies and practices of capital punishment that abolitionists viewed as progress toward its elimination in the United States. First, states began to change the processes by which death sentences were handed down. Up until that time, all the states utilized mandatory death sentencing for specific offenses. That practice changed in 1838, when Tennessee became the first state to change its capital sentencing policy to allow discretion in sentencing. The modern U.S. Supreme Court has declared mandatory death sentences as unconstitutional. The second nineteenth century change came when several states limited the number of offenses that were considered death-eligible. Southern states expanded the use of capital punishment for slaves, but the majority of states limited its use to crimes of murder and treason. In 1846, Michigan became the first state to abolish the death penalty for all crimes, with the exception of treason. A third change was the transformation of executions from public to private events. Previously, hangings had traditionally been held in public squares in order to deter criminal activity, and religious readings and prayers provided a foundation for the occasions. However, public executions often created public disorder as a result of public drunkenness, botched executions, and rioting. In 1834, Pennsylvania became the first state to remove executions from public view. The last public execution in the United States was conducted in 1937. Now, public attendance at executions is limited to small numbers of citizens. Access by journalists is also limited, and legal efforts to televise executions to the public have failed. In addition to policy changes that limited the use of capital punishment, several states began to abandon the practice in its entirety during the late nineteenth and early twentieth centuries. In 1852, Rhode Island became the first state to eliminate the use of the death penalty for all crimes. Since then, several states have abolished the death penalty, only to reinstate it at later dates in response to political or public pressures. In 2005, twelve states, the District of Columbia, and Puerto Rico did not use capital punishment for any crimes. Supreme Court Decisions A primary legal issue relating to capital punishment is whether the death penalty violates the Eighth Amendment's protection against cruel and unusual punishment. Before reviewing the constitutionality of the death penalty as a practice, the U.S. Supreme Court addressed the question of how to define cruel and unusual punishment. In 1878, the Court ruled specific forms of torture as unconstitutional in its Wilkerson v. Utah decision. That ruling was explicit in specifying what types of execution procedures were cruel and unusual, but the Court's later rulings were less specific. In Weems v. United States (1910), the Court argued that decisions on what constitutes cruel and unusual punishment are not immutable and limited by the beliefs of the framers of the Bill of Rights. Rather, definitions should be subject to interpretation and change. The Court's 1958 Trop v. Dulles ruling elaborated on this point, arguing that the definition of cruel and unusual should come from the evolving standards of decency as defined by modern society. After the Trop ruling, measuring the evolving standards of decency led to several changes in death-penalty policy. In 1972, in Furman v. Georgia, the Supreme Court overturned state statutes on capital punishment nationwide in a 5-4 vote. The Court found that then-current laws violated the cruel and unusual clause of the Eighth and Fourteenth Amendments. As other justices in the past had debated on the definition of cruel and unusual punishments, so, too, did the Furman Court. Justices William J. Brennan and Thurgood Marshall argued that the death penalty itself was inherently cruel and unusual, Justices William O. Douglas, Potter Stewart, and Byron R. White argued that the statutes themselves constituted cruel and unusual punishment as they were arbitrary and were implemented with wide degrees of discretion. With the Furman ruling, the death sentences of all the prisoners awaiting execution on death rows throughout the nation were invalidated. After the Supreme Court's Furman decision, legislators looked for ways of ensuring that capital punishment could be administered fairly and equitably, so that the death penalty could be reinstated. Newly written state statutes passed constitutional muster in several 1976 Supreme Court decisions, the most notable of which was Gregg v. Georgia. These new Court rulings reopened the floodgates for executions to continue. The new state laws were designed to set standards for judges and juries in capital cases. First, a bifurcated process was to be conducted for all death-penalty trials, in which the guilt/innocence phases would be separated from the sentencing phases. Second, presentation of information on mitigating and aggravating factors was allowed during the sentencing phases, in which aggravating circumstances had to outweigh the mitigating circumstances before the death penalty could be awarded. Third, all death sentences became subject to automatic reviews by the states' supreme courts. Finally, the states were required periodically to conduct studies of proportionality to determine whether disparities in sentencing were developing. The conditions outlined in Gregg passed the constitutional requirements of the Court in 1976, but the Court's justices continue to argue whether capital punishment itself represents cruel and unusual punishment. Later Court decisions continued to apply the criteria of the evolving standards of decency to limit which offenders may be subjected to capital punishment. In Penry v. Lynaugh in 1989, the Court held that the execution of the mentally retarded did not constitute cruel and unusual punishment. However, the Court overturned this decision in 2002 in Atkins v. Virginia (2002). In its latter decision, the Court found that a national consensus had developed against the practice of executing the mentally retarded and held that such a practice violates Eighth Amendment protections. The Atkins v. Virginia ruling opened the possibility of other challenges to capital punishment. One example is the execution of juvenile offenders. In 1988, the Court held in Thompson v. Oklahoma that offenders under the age of sixteen at the time they commit their crimes are not eligible to receive death sentences. In 2002, four justices voted to hear the case of Kevin Nigel Stanford, who was seventeen at the time of his crime. Their dissenting opinion indicated that not only did they wish to revisit the issue of the juvenile death penalty, they were prepared to declare it as an unconstitutional practice. The state of Kentucky granted clemency to Stanford and commuted his death sentence to life in prison without the possibility of parole, but the U.S. Supreme Court was still left with the issue of the juvenile death penalty. In 2003, Missouri's supreme court, drawing largely on the rationale set forth in Atkins, declared juvenile executions unconstitutional. The Missouri court referenced public and professional opinion, as well as declining legislative support for capital punishment in its decision. On March 1, 2005, the U.S. Supreme Court upheld the Missouri court ruling in a 5-4 decision. Writing for the majority, Justice Anthony Kennedy stated that to extinguish a juvenile's life before he attains the maturity to understand his own humanity would be cruel and unusual punishment. Arguments for and Against Capital Punishment Death-penalty supporters argue that capital punishment should be retained on the basis of retribution and deterrence. Most people who support the death penalty favor it because of the principle of retribution. Retribution is often described by the concept of lex talionis, or "an eye for an eye"--a principle holding that punishments must be proportionate responses to crimes. Lex talionis is also often associated with the concept of revenge. Retribution is also characterized as just deserts, holding that offenders deserve to be punished for their actions. Supporters of the death penalty argue that for justice to be served and for order to be restored to the community, society requires the execution of offenders as payment for their crimes. In contrast, death-penalty opponents argue that criminal justice policies should not be based on a retributive position because revenge is an emotional, rather than a reasonable, response. They further argue that the death penalty is a disproportionate response when compared to other sentencing philosophies, as the American system does not rape rapists or steal from thieves. In contrast to the emotionally laden concept of retribution, deterrence is viewed as a more rational and scientific argument for capital punishment. Proponents are quick to argue that the death penalty provides for both specific and general deterrence. Not only do executions prevent convicted murderers from killing again, but the belief is that if murderers are executed, other potential murderers will think twice before committing murder, for fear of losing their own lives. However, deterrence theory assumes that offenders are thinking individuals who rationally consider the potential consequences of their actions before engaging in them. Opponents to the death penalty argue that deterrence can be achieved by incarcerating offenders for life without the possibility of parole. Additionally, they argue that if the death penalty were, in fact, an effective deterrent, murder rates would increase when it is abolished and decline when it is restored. However, little empirical research has been done to provide support for general deterrence theory. Proponents counteract this argument by stating that the death penalty as it is currently administered in the United States may not provide a deterrent effect because the average length of time that persons sentenced to death spend awaiting their executions is overly long. Wrongful Convictions Between 1973 and 2004, 114 inmates were released from death row after new evidence demonstrated that they had been wrongfully convicted. Their releases seemed to refute arguments presented by supporters of capital punishment that only the guilty are sentenced to death row. In the state of Illinois, thirteen death-row inmates were exonerated between 1977 and 2000, while twelve others were executed. Illinois's Governor George Ryan, previously a strong supporter of the death penalty, expressed concern that the system of handing out death sentences in his state may have allowed executions of the innocent, so he declared a moratorium on executions in 2000. Following a two-year investigation by a commission appointed by Ryan to review capital sentencing procedures, the commission made eighty-five recommendations on the processing of capital cases to ensure a system of fair, equitable, and accurate sentencing. Illinois incorporated some of those recommendations, but many, such as the immediate appointment of counsel, remained to be implemented. Meanwhile, following reviews of Illinois's death-row population, Governor Ryan commuted the sentences of 156 inmates awaiting execution to life in prison without parole. Proponents of capital punishment disagree with the argument that it is administered in a discriminatory fashion. In 2004, about 46 percent of the prisoners held on death rows were classified as white and 42 percent were black. Similarly, 57 percent of post-Furman executions involved white offenders, while 34 percent of executions during the same time period involved black offenders. However, while the majority of inmates and executions have involved white offenders, such statistics do not take into account the proportion of population demographics. Opponents argue that the death penalty is disproportionately applied to African Americans, who constitute only 12 percent of the entire population. While the role of race in capital punishment sentences remains a subject of debate, a review of post-Furman executions provided additional evidence for opponents of capital punishment, as 80 percent of all execution cases involved white murder victims, even though white victims constitute only about 50 percent of all murder victims nationwide. Issues of discrimination are also raised on the variable of class, as poor defendants are unable to obtain the resources to provide an adequate defense Some critics of capital punishment charge that the death penalty is applied randomly, without concern for legal criteria. While proponents contend that the death penalty is applied in an equitable fashion, opponents disagree. Because the death penalty is actually invoked in only a small number of death-eligible cases, two different offenders who commit similar crimes may receive dramatically different sentences: death versus life imprisonment. Additionally, evidence demonstrates that the death penalty is subject to significant jurisdictional differences, as the majority of post-Furman executions have been carried out by southern states. Texas alone accounted for more than one third of all executions between 1972 and 2004. Conclusion Even as capital punishment remains a subject of debate, raising issues such as deterrence, retribution, innocence, and discrimination, it remains a component of the American criminal justice system. Questions of who should be executed, for what crimes, and by what methods have been addressed throughout American history and continue to be debated. Recent decisions to limit the application of the death penalty, to declare moratoriums against executions, and to declare the practice in itself as unconstitutional indicate that support for capital punishment may be fading. Regardless of the future of the death penalty, it has sealed its place in history as the ultimate punishment philosophy in criminal justice policy. Stacy L. Mallicoat Further ReadingBanner, Stuart. The Death Penalty: An American History. Boston, Mass.: Harvard University Press, 2003. Scholarly history of capital punishment in the United States. Bedau, Hugo Adam, and Paul Cassell. Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case. Oxford, England: Oxford University Press, 2003. Collection of essays on a variety of aspects of capital punishment by both supporters and opponents of the death penalty. Bohm, Robert M. Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States. Cincinnati: Anderson Publishing, 2003. Introductory text highlighting facts, figures, and arguments on capital punishment in the United States. Johnson, Robert. Death Work: A Study of the Modern Execution Process. Belmont, Calif.: Wadsworth, 1998. Details life on death row for both offenders and the guards who work with them. Prejean, Helen. Dead Man Walking: An Eyewitness Account to the Death Penalty in the United States. New York: Vintage Books, 1993. Narrative story detailing the experience of a Roman Catholic nun who served as a spiritual advisor for death-row inmates in Louisiana. Radelet, Michael L., Hugo Adam Bedau, and Constance E. Putnam. In Spite of Innocence: Erroneous Convictions in Capital Cases. Boston: Northeastern University Press, 1994. Review of wrongful convictions in capital murder cases that discusses how issues in the criminal justice process have led to the incarceration of the innocent. State of Illinois. Report of the Former Governor Ryan's Commission on Capital Punishment. April, 2002. Report issued by the Illinois Commission on Capital Punishment detailing recommendations for improvements to current death-penalty policy. The entire report can be found on the state's official Web site. See Also Cruel and unusual punishment; Deterrence; Execution, forms of; Murders, mass and serial; Punishment; U.S.; Supreme Court, U.S.; Treason. |
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