Capital punishment in the United States

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Capital punishment in the United States is limited under the Eighth Amendment to the United States Constitution and, in practice, used only for aggravated murders committed by mentally competent adults.[1]

Capital punishment was a penalty for many felonies in common law, and was enforced in all the American colonies prior to the Declaration of Independence. The death penalty is currently a legal sentence in 31 states and in the federal civilian and military legal systems. The methods of execution and the crimes subject to the penalty vary by jurisdiction and have varied widely throughout time, though the most common method in recent decades has been lethal injection. In 2012, 43 inmates were executed in the country.[2]

Contents

History

The United States first legalized and used lethal injection as a method of execution, now used by other countries including China.

The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall,[3] who was executed by firing squad at the Jamestown colony for allegedly spying for the Spanish government.[4]

The Espy file,[5] compiled by M. Watt Espy and John Ortiz Smykla, lists 15,269 people executed in the United States and its predecessor colonies between 1608 and 1991. In the period from 1930 to 2002, 4,661 executions were carried out in the U.S, about two-thirds of them in the first 20 years.[6] Additionally, the United States Army executed 135 soldiers between 1916 and 2012.[7][8][9]

The largest single execution in United States history was the hanging of 38 Dakota people convicted of murder and rape during the brutal Dakota War of 1862. They were executed simultaneously on December 26, 1862, in Mankato, Minnesota. A single blow from an axe cut the rope that held the large four-sided platform, and the prisoners (except for one whose rope had broken and who had to be re-hanged) fell to their deaths.[10] The second-largest mass execution was also a hanging: the execution of 13 African American soldiers for taking part in the Houston Riot in 1917. The largest non-military public mass execution in one of the original thirteen colonies occurred in 1723, when 26 convicted pirates were hanged in Newport, Rhode Island by order of the Admiralty Court.[11]

States without capital punishment

Abolition before statehood

Historically, several states have always been without capital punishment, the earliest being Michigan, which has not conducted an execution since it entered the Union. (However, one federal execution occurred in Michigan in 1938.) Shortly after attaining statehood, Michigan abolished the death penalty for ordinary crimes, becoming the first English-speaking government in the world to abolish the death penalty for all crimes except treason.[12] In 1963, Michigan amended its constitution to prevent later attempts at reinstatement. Every attempt through referendums and voter initiatives to reinstate the penalty since 1963 has failed, the latest being a failed attempt at a referendum in 2004.[13]

The newest two states, Alaska and Hawaii, abolished the death penalty prior to statehood, though Alaska had executed eight men when it was a territory. (1900–1959).[14]

Other early repeals

Other states with long tenures of no death penalty include Wisconsin (with the distinction of being the only state to perform a single state-level execution in its history, and also the first to abolish the death penalty for all crimes), Rhode Island (although later reintroduced, it was unused and abolished again), Maine, North Dakota, Minnesota, West Virginia, Iowa, and Vermont. The District of Columbia has also abolished the death penalty; it was last applied there in 1957. One state, Oregon, abolished the death penalty through an overwhelming majority in a 1964 public referendum,[15] but reinstated it in a 1984 joint death penalty/life imprisonment referendum by an even higher margin, after a similar 1978 referendum succeeded but was not implemented due to judicial rulings.

Recent abolition

Death penalty statutes in the United States as of 2012
Color key:
  No current death penalty statute
  Death penalty statute declared unconstitutional
  No one executed since 1976
  Has performed execution since 1976

The District of Columbia and the following 18 U.S. states currently do not have an enforceable death penalty statute (the year it was abolished is in parentheses):

Notes:

  1. In these states, the death penalty is enforceable for offences committed before the repeal; that is, abolition was not retroactive.
  2. Maryland's repeal is pending final action by the legislature and governor—who are expected to go forward with it.
  3. Death penalty statute struck down by court ruling.

The District of Columbia also has no death penalty. The current law in Arkansas was overturned on separation of powers issues but the death penalty was not ruled unconstitutional.[16]

New Mexico may yet execute two condemned inmates sentenced prior to abolition. Connecticut may also execute eleven inmates sentenced before abolition. In Illinois, where recent abolition legislation took effect on July 1, 2011, all former death row inmates have been moved to regular jail cells.[17]

As of 1995, the United States Supreme Court ruled the televised executions of prisoners unconstitutional.[citation needed]

Only four of the above states have legislatively abolished the death penalty in the so-called "modern era of capital punishment" (that is, post-Gregg v. Georgia), and only two have attained de facto abolition through their state judiciaries; the remainder either abolished capital punishment before the moratorium was lifted, or had statutes that were struck down and did not reinstate the death penalty.

In 2007, New Jersey became the first state to repeal the death penalty in the modern system of capital punishment,[18] followed by New Mexico in 2009 (though not retroactively, permitting the future execution of two inmates on the state's death row), and Illinois in 2011 (with the Governor commuting the death sentences of all death row inmates).[19][20][21] However, in states with a large death row population and regular executions, including Texas,[22][23] the death penalty remains strongly in the landscape and is unlikely to end any time soon.[24][25][26][27][28][29]

Four states in the modern era, Nebraska in 2008, New York and Kansas in 2004, and Massachusetts in 1984, had their statutes ruled unconstitutional by state courts. The death rows of New York and Massachusetts were disestablished. Of the four states, only Nebraska has performed executions since the constitutionality of capital punishment was affirmed by the Supreme Court in 1976, the four states having done so last in 1997, 1963, 1965, and 1947, respectively. In New York and Massachusetts attempts to restore the death penalty were unsuccessful,[30][31] while Kansas successfully appealed State v. Kleypas, the Kansas Supreme Court decision that declared the state's death penalty statute unconstitutional, to the U.S. Supreme Court – and death sentences continue to be sought. New York had previously abolished the death penalty temporarily, in 1860.[32] Nebraska has performed three executions since 1976, all in the 1990s; its statute has been ineffective since February 8, 2008, when the method used, electrocution, was ruled unconstitutional by the Nebraska Supreme Court. However, Nebraska since enacted a bill providing executions by lethal injection.

On April 5, 2012, the State Senate of Connecticut passed a bill (20 to 16) that would abolish the death penalty for future crimes. The House had passed similar bills in earlier sessions, but they had always failed to win approval in the Senate. The bill was later passed in the House on April 11 (86 to 62), and on April 25, Governor Dan Malloy signed the bill.[33][34] Connecticut has executed only one person in the last 50 years. Like New Mexico's, Connecticut's repeal of capital punishment is not retroactive, and the 11 inmates currently on the state's Death Row may still be executed, and those convicted of capital crimes committed before the date in which the repeal went into effect may still be subject to capital punishment.

The only jurisdictions with constitutional death penalty statutes that have not performed an execution since 1976 are New Hampshire, Kansas, and the United States military, although all have populated death rows. In addition, New Jersey did not execute any prisoners between 1976 and the abolition of the death penalty in 2007.

Puerto Rico

The U.S. territory of Puerto Rico has no death penalty. Puerto Rico instituted a four-year moratorium on the use of the death penalty in 1917. The last execution took place in 1927 and the Puerto Rican legislature abolished the death penalty in 1929.[35]

Puerto Rico's constitution expressly forbids capital punishment, stating "The death penalty shall not exist", setting it apart from all US states and territories other than Michigan, which also has a constitutional prohibition (eleven other states and the District of Columbia have abolished capital punishment through statutory law); however, capital punishment is still applicable to offenses committed in Puerto Rico, if they fall under the jurisdiction of the federal government, though federal death penalty prosecutions that have occurred in Puerto Rico have generated significant controversy.[36]

Suspension by Supreme Court

The US Supreme Court building.
Executions in the US since 1960

Capital punishment was suspended in the United States from 1972 through 1976 primarily as a result of the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972). The last pre-Furman execution was that of Luis Monge on June 2, 1967. In this case, the court found that the death penalty was being imposed in an unconstitutional manner, on the grounds of cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. The Supreme Court has never ruled the death penalty to be per se unconstitutional.

In Furman, the United States Supreme Court considered a group of consolidated cases. The lead case involved an individual convicted under Georgia's death penalty statute, which featured a "unitary trial" procedure in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment.

In a five-to-four decision, the Supreme Court struck down the imposition of the death penalties in each of the consolidated cases as unconstitutional. The five justices in the majority did not produce a common opinion or rationale for their decision, however, and agreed only on a short statement announcing the result. The narrowest opinions, those of Byron White and Potter Stewart, expressed generalized concerns about the inconsistent application of the death penalty across a variety of cases but did not exclude the possibility of a constitutional death penalty law. Stewart and William O. Douglas worried explicitly about racial discrimination in enforcement of the death penalty. Thurgood Marshall and William J. Brennan, Jr. expressed the opinion that the death penalty was proscribed absolutely by the Eighth Amendment as "cruel and unusual" punishment.

Though many observers expected few, if any, states to readopt the death penalty after Furman,[citation needed] 37 states did in fact enact new death penalty statutes which attempted to address the concerns of White and Stewart. Some of the states responded by enacting "mandatory" death penalty statutes which prescribed a sentence of death for anyone convicted of certain forms of murder (White had hinted such a scheme would meet his constitutional concerns in his Furman opinion).

Other states adopted "bifurcated" trial and sentencing procedures, with various procedural limitations on the jury's ability to pronounce a death sentence designed to limit juror discretion. The Court clarified Furman in Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976), 431 U.S. 633 ( 1977), which explicitly forbade any state from punishing a specific form of murder (such as that of a police officer) with a mandatory death penalty.

Capital punishment resumed

In 1976, contemporaneously with Woodson and Roberts, the Court decided Gregg v. Georgia, 428 U.S. 153 (1976) and upheld a procedure in which the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides the defendant's guilt; if the defendant is innocent or otherwise not convicted of first-degree murder, the death penalty will not be imposed. At the second hearing, the jury determines whether certain statutory aggravating factors exist, and whether any mitigating factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty – either death or life in prison, either with or without parole.

Capital punishment since 1976
(by jurisdiction)
JurisdictionExecutions
[nb 1]
Current death row inmates[nb 2]
Texas493289
Virginia11012
Oklahoma10358
Florida74404
Missouri6847
Alabama55194
Georgia5393
Ohio50143
North Carolina43155
South Carolina4351
Arizona34125
Louisiana2889
Arkansas2741
Mississippi2151
Indiana2012
Delaware1617
California13727
Illinois120[nb 3]
Nevada1284
Utah79
Tennessee685
Maryland55
Washington57
Federal govt361
Nebraska311
Pennsylvania3199
Montana32
Kentucky334
Idaho315
South Dakota33
Oregon237
Colorado14
Connecticut111
New Mexico12[nb 4]
Wyoming11
Kansas09
New Hampshire01
U.S. military06
American Samoa0[nb 5]0
Total[nb 6]1,3213,100
No current death penalty statute: Alaska, Connecticut[nb 7], Hawaii, Illinois[nb 3], Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico[nb 4], North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, District of Columbia, Guam, Northern Mariana Islands, Puerto Rico, and U.S. Virgin Islands.

Statute ruled unconstitutional: Massachusetts[nb 8] and New York[nb 9].

Notes:

  1. ^ As of January 16, 2013; source
  2. ^ As of October 1, 2011; source
  3. ^ a b "Quinn signs death penalty ban, commutes 15 death row sentences to life". Chicago Tribune. March 9, 2011. Retrieved March 9, 2011. 
  4. ^ a b On March 18, 2009, New Mexico banned the use of the death penalty, but the new law did not affect the sentences of the two inmates currently on death row, and the ban is not retroactive meaning those convicted of crimes committed before July 1, 2009 may still be sentenced to death under the pre-existing death penalty statute.[1]
  5. ^ American Samoa law allows for the use of capital punishment in cases of first degree murder. source The most recent execution occurred in the 1920s. source
  6. ^ Some inmates are on death row in more than one state, so the total may be lower than sum of state numbers.
  7. ^ "Connecticut governor signs death penalty repeal". Associated Press. April 25, 2012. Retrieved May 6, 2012. 
  8. ^ Massachusetts's death penalty statute was ruled unconstitutional in 1984. source The most recent execution was in 1947. The state has no death row.
  9. ^ On June 24, 2004, the death penalty statute of New York was declared unconstitutional. The last person who was still on death row was re-sentenced to life in prison without parole on October 24, 2007. source The most recent execution was in 1963. The state has no death row.

The 1977 Coker v. Georgia decision barred the death penalty for rape, and, by implication, for any offense other than murder. The current federal kidnapping statute, however, may be exempt because the death penalty applies if the victim dies in the perpetrator's custody, not necessarily by his hand, thus stipulating a resulting death, which was the wording of the objection. In addition, the federal government retains the death penalty for such non-murder offenses as treason, espionage and crimes under military jurisdiction; there has been no challenge to these statutes as of 2007.

Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. But the pace was quite halting due to use of litigation tactics which involved filing repeated writs for habeas corpus, which succeeded for many in delaying their actual execution for many years. Although hundreds of individuals were sentenced to death in the U.S. during the 1970s and early 1980s, only ten people besides Gilmore (who had waived all of his appeal rights) were actually executed prior to 1984.

The United States Supreme Court, though, has placed two major restrictions on the use of the death penalty. First, the Supreme Court case of Atkins v. Virginia, decided June 20, 2002,[37] held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Generally, a person with an IQ below 70 is considered to be mentally retarded. Prior to this decision, between 1984 and 2002 forty-four mentally retarded inmates were executed.[38]

Second, in 2005 the Supreme Court's decision in Roper v. Simmons, 543 U.S. 551 (2005), abolished executions for persons under the age of 18 at the time of the crime.

New Mexico repealed its death penalty statute on March 17, 2009, becoming the second state (after New Jersey) to abolish the death penalty since executions resumed in 1976 (However, the only prisoner executed after 1976 wanted to be executed). The law, signed by Governor Bill Richardson, took effect on July 1, 2009 and replaces the death penalty with a life sentence without the possibility of parole. The law, though, is not retroactive – inmates currently on New Mexico's Death Row and persons convicted of capital offenses committed before this date may still be sentenced to death under New Mexico's pre-existing death penalty statute.[39] Connecticut abolished its death penalty on April 25, 2012. Like New Mexico, the repeal is not retroactive, leaving 11 inmates on death row. A bill to abolish the death penalty was vetoed by former governor M. Jodi Rell in June 2009 after it easily passed in the General Assembly.[40] Current governor Dan Malloy indicated he would sign a bill abolishing the death penalty if it was passed by the General Assembly.[41]

Possibly in part due to expedited federal habeas corpus procedures embodied in the Antiterrorism and Effective Death Penalty Act of 1996, the pace of executions has picked up. Since the death penalty was reauthorized in 1976, 1,280 people have been executed, almost exclusively by the states, with most occurring after 1990. Texas has accounted for over a third of modern executions[22][23] (and over four times as many as Virginia, the state with the second-highest number); California has the greatest number of prisoners on death row, but has held relatively few executions. See the table for executions and death row inmates by jurisdiction.

New concerns post-Furman

In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, "Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions," surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions remain marked by local "idiosyncrasies," suggesting they are not in keeping with the spirit of the Supreme Court's directive. This means that "the very types of unfairness that the Supreme Court sought to eliminate" may still "infect capital cases." Wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 "special circumstances," making nearly all premeditated murders potential capital cases. The 37 death penalty states have varying numbers and types of "death qualifiers" – circumstances that allow for capital charges. The number varies from a high of 34 in California to 22 in Colorado and Delaware to 12 in Texas, Nebraska, Georgia and Montana. The study's authors call for reform of state procedures along the lines of reforms in the federal system, which the U.S. Department of Justice initiated with a 1995 protocol.[42] Crimes subject to the death penalty vary by jurisdiction. All jurisdictions that use capital punishment designate the highest grade of murder a capital crime, although most jurisdictions require aggravating circumstances. Treason against the United States, as well as treason against the states of Arkansas, California, Georgia, Louisiana, Mississippi, and Missouri are capital offenses.[43]

Other capital crimes include: the use of a weapon of mass destruction resulting in death, espionage, terrorism, certain violations of the Geneva Conventions that result in the death of one or more persons, and treason at the federal level; aggravated rape in Louisiana, Florida,[44] and Oklahoma; extortionate kidnapping in Oklahoma; aggravated kidnapping in Georgia, Idaho, Kentucky and South Carolina; aircraft hijacking in Alabama; drug trafficking resulting in a person's death in Florida;[45] train wrecking which leads to a person's death, and perjury which leads to a person's death in California.[43][46][47]

Additionally, the Uniform Code of Military Justice allows capital punishment for a list of offenses during wartime including: desertion, mutiny, spying, and misconduct before the enemy. In practice, no one has been executed for a crime other than murder or conspiracy to murder since James Coburn was executed for robbery in Alabama on September 4, 1964.[48]

On June 25, 2008, in Kennedy v. Louisiana, the U.S. Supreme Court ruled against Louisiana's death penalty for child rapists, saying "there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons."[49] The Court went further, ruling out the death penalty for any crime against an individual (as opposed to "offenses against the state," such as treason or espionage, or crimes against humanity) "where the victim's life was not taken."[50]

As of November 2008, there is only one person on death row facing capital punishment who has not been convicted of murder. Demarcus Sears remains under a death sentence in Georgia for the crime of "Kidnapping With Bodily Injury." Sears was convicted in 2006 for the kidnapping and bodily injury of victim Gloria Ann Wilbur. Wilbur was kidnapped and beaten in Georgia, raped in Tennessee, and murdered in Kentucky. Sears was never charged with the murder of Wilbur in Kentucky, but was sentenced to death by a jury in Georgia for "Kidnapping with Bodily Injury".[51][52]

Several people who were executed have received posthumous pardons for their crimes. For example, slave revolt was a capital crime, and many who were executed for that reason have since been posthumously pardoned.

Congress acted defiantly toward the Supreme Court by passing the Drug Kingpin Act of the late 1980s and the Federal Death Penalty Act of 1994 that made roughly fifty crimes punishable by death, including crimes that do not always involve the death of someone. Such non-death capital offenses include treason, espionage (spying for another country), high-level drug trafficking, and sabotaging the national economy. Since no one has yet been sentenced to death for such non-death capital offenses, the Supreme Court has not ruled on their constitutionality.[53][54]

The last executions solely for crimes other than homicide:

CrimeConvictDateLocationJurisdiction
Aiding a runaway slaveStarling Carlton1859South CarolinaState
ArsonGeorge Hughes, George Smith, and Asbury Hughes188408August 1884AlabamaState
BurglaryFrank Bass19410808August 8, 1941AlabamaState
Criminal assaultRudolph Wright19620111January 11, 1962CaliforniaState
Concealing the birth/death of an infantHannah Piggen1785MassachusettsState
Conspiracy to Commit MurderFive unnamed Yuki men18630721July 21, 1863California[55]State
CounterfeitingThomas Davis18221011October 11, 1822AlabamaState
DesertionEddie Slovik19450131January 31, 1945Sainte-Marie-aux-Mines, France (Firing squad).[56]Federal (United States Army)
EspionageEthel and Julius Rosenberg19530619June 19, 1953New YorkFederal
ForgeryUnknown defendant18400306March 6, 1840South CarolinaState
Horse stealing (Grand Larceny)Theodore Velenquez18520130January 30, 1852California[57]State
KidnappingBilly Monk19601121November 21, 1960CaliforniaState
Piracy (Slave Trading)Nathaniel Gordon18620221February 21, 1862New YorkFederal
RapeRonald Wolfe[58]19640508May 8, 1964MissouriState
RobberyJames Coburn19640904September 4, 1964AlabamaState
Slave revoltCaesar, Sam, and Sanford (slaves)18601019October 19, 1860AlabamaState
TheftJake (slave)18551203December 3, 1855AlabamaState
Train RobberyBlack Jack Ketchum19010426April 26, 1901New MexicoFederal (New Mexico Territory)
TreasonJohn Conn1862Texas
Sodomy/buggery/bestialityBilly Carlozzi17851220December 20, 1785PennsylvaniaState
WitchcraftManuel[59]17790615June 15, 1779Illinois Country (present-day Illinois)

Legal process

The legal administration of the death penalty in the United States is complex. Typically, it involves four critical steps: (1) sentencing, (2) direct review, (3) state collateral review, and (4) federal habeas corpus. Recently, a narrow and final fifth level of process – (5) the Section 1983 challenge – has become increasingly important.[60] (Clemency or pardon, through which the Governor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.[61]) The number of new death sentences handed down peaked in 1995–1996 (309). There were 104 new death sentences handed down in 2010, the lowest number since 1973 (44).[62]

Direct review

If a defendant is sentenced to death at the trial level, the case then goes into a direct review.[63] The direct review process is a typical legal appeal. An appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether the decision was legally sound or not.[64] Direct review of a capital sentencing hearing will result in one of three outcomes. If the appellate court finds that no significant legal errors occurred in the capital sentencing hearing, the appellate court will affirm the judgment, or let the sentence stand.[63] If the appellate court finds that significant legal errors did occur, then it will reverse the judgment, or nullify the sentence and order a new capital sentencing hearing.[65] Lastly, if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty, a rarity, then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible.[65] About 60 percent survive the process of direct review intact.[66]

State collateral review

At times when a death sentence is affirmed on direct review, it is considered final. Yet, supplemental methods to attack the judgment, though less familiar than a typical appeal, do remain. These supplemental remedies are considered collateral review, that is, an avenue for upsetting judgments that have become otherwise final.[67] Where the prisoner received his death sentence in a state-level trial, as is usually the case, the first step in collateral review is state collateral review. (If the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus.) Although all states have some type of collateral review, the process varies widely from state to state.[68] Generally, the purpose of these collateral proceedings is to permit the prisoner to challenge his sentence on grounds that could not have been raised reasonably at trial or on direct review.[69] Most often these are claims, such as ineffective assistance of counsel, which require the court to consider new evidence outside the original trial record, something courts may not do in an ordinary appeal. State collateral review, though an important step in that it helps define the scope of subsequent review through federal habeas corpus, is rarely successful in and of itself. Only around 6 percent of death sentences are overturned on state collateral review.[70] In 2010, the death sentences of 53 inmates were overturned as a result of legal appeals or high court reversals.[62]

Federal habeas corpus

After a death sentence is affirmed in state collateral review, the prisoner may file for federal habeas corpus, which is a unique type of lawsuit that can be brought in federal courts. Federal habeas corpus is a species of collateral review, and it is the only way that state prisoners may attack a death sentence in federal court (other than petitions for certiorari to the United States Supreme Court after both direct review and state collateral review). The scope of federal habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996, which restricted significantly its previous scope. The purpose of federal habeas corpus is to ensure that state courts, through the process of direct review and state collateral review, have done at least a reasonable job in protecting the prisoner's federal constitutional rights. Prisoners may also use federal habeas corpus suits to bring forth new evidence that they are innocent of the crime, though to be a valid defense at this late stage in the process, evidence of innocence must be truly compelling.[71]

Review through federal habeas corpus is narrow in theory, but it is important in practice. According to Eric Freedman, 21 percent of death penalty cases are reversed through federal habeas corpus.[70]

James Lieberman, a professor of law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995."[72] Similarly, a study by Ronald Tabak in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47 percent of the habeas petitions filed by death row inmates were granted."[73] The different numbers are largely definitional, rather than substantive. Freedam's statistics looks at the percentage of all death penalty cases reversed, while the others look only at cases not reversed prior to habeas corpus review.

A similar process is available for prisoners sentenced to death by the judgment of a federal court.[74]

Section 1983 contested

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner is ordinarily only allowed one suit for habeas corpus in federal court. If the federal courts refuse to issue a writ of habeas corpus, an execution date may be set. In recent times, however, prisoners have postponed execution through a final round of federal litigation using the Civil Rights Act of 1871 — codified at 42 U.S.C. § 1983 — which allows people to bring lawsuits against state actors to protect their federal constitutional and statutory rights.

Traditionally, Section 1983 was of limited use for a state prisoner under sentence of death because the Supreme Court has held that habeas corpus, not Section 1983, is the only vehicle by which a state prisoner can challenge his judgment of death.[75] In the 2006 Hill v. McDonough case, however, the United States Supreme Court approved the use of Section 1983 as a vehicle for challenging a state's method of execution as cruel and unusual punishment in violation of the Eighth Amendment. The theory is that a prisoner bringing such a challenge is not attacking directly his judgment of death, but rather the means by which that the judgment will be carried out. Therefore, the Supreme Court held in the Hill case that a prisoner can use Section 1983 rather than habeas corpus to bring the lawsuit. Yet, as Clarence Hill's own case shows, lower federal courts have often refused to hear suits challenging methods of execution on the ground that the prisoner brought the claim too late and only for the purposes of delay. Further, the Court's decision in Baze v. Rees, upholding a lethal-injection method used by many states, has drastically narrowed the opportunity for relief through 1983.

Mitigating factors

The United States Supreme Court in Penry v. Lynaugh and the United States Court of Appeals for the Fifth Circuit in Bigby v. Dretke have been clear in their decisions that jury instructions in death penalty cases that do not ask about mitigating factors regarding the defendant's mental health violate the defendant's Eighth Amendment rights, saying that the jury is to be instructed to consider mitigating factors when answering unrelated questions. This ruling suggests that specific explanations to the jury are necessary to weigh mitigating factors.

Methods

Usage of lethal injection for executions in the United States
Color key:
  State uses only this method
  State uses this method primarily but has secondary methods
  State has never used this method
  State once used this method, but no longer does
Number of executions each year by the method used in the United States and the earlier colonies from 1608 to 2004. The adoption of electrocution caused a marked drop off in the number of hangings, which was used even less with the use of the gas chamber. After Gregg v. Georgia, most states changed to lethal injection, leading to its rise.

Various methods have been used in the history of the American colonies and the United States but only five methods are currently used. Historically, burning, crushing, breaking on wheel, and bludgeoning were used for a small number of executions, while hanging was the most common method. The last person burned at the stake was a black slave in South Carolina in August 1825.[76] The last person to be hanged in chains was a murderer named John Marshall in West Virginia on April 4, 1913. Although beheading was a legal method in Utah from 1851 to 1888, it was never used.[77]

The last use of the firing squad between 1608 and the moratorium on judicial executions between 1967 and 1977 was when Utah shot James W. Rodgers on March 30, 1960. The last use of the gallows between 1608 and the moratorium was when Kansas hanged George York on June 22, 1965. The last use of the electric chair between the first electrocution on August 6, 1890 and the moratorium was when Oklahoma electrocuted James French on August 10, 1966. The last use of the gas chamber between the first gassing on February 8, 1924 and the moratorium was when Colorado gassed Luis Monge on June 2, 1967.

The moratorium ended January 17, 1977 with the shooting of Gary Gilmore by firing squad in Utah. The first use of the electric chair after the moratorium was the electrocution of John Spenkelink in Florida May 25, 1979. The first use of the gas chamber after the moratorium was the gassing of Jesse Bishop in Nevada October 22, 1979. The first use of the gallows after the moratorium was the hanging of Westley Allan Dodd in Washington January 5, 1993. December 7, 1982 is also an important day in the history of capital punishment in the United States; Charles Brooks, Jr., put to death in Texas, was the first person executed by lethal injection.

Until the 21st century, electrocution and gassing were the most prevalent methods of execution in the United States. The electrocutions of John Evans and Horace Franklin Douglas, Jr. in Alabama, Jesse Tafero, Pedro Medina, and Allen Lee Davis in Florida, Alpha Otis Stephens in Georgia, William E. Vandiver in Indiana, Frank J. Coppola, Wilbert Lee Evans, and Derick Lynn Peterson in Virginia, and the gassings of Jimmy Lee Gray in Mississippi and Donald Eugene Harding in Arizona were botched and are often cited by opponents of capital punishment as unacceptable outcomes of such methods.

Currently, lethal injection is the method used or allowed in all of the 34 states which allow the death penalty. Nebraska required electrocution, but in 2008 the state's supreme court ruled that the method was unconstitutional. In mid-2009 Nebraska officially changed its method of execution to lethal injection.[78][79][80] Other states also allow electricity, firing squads, hanging and lethal gas. From 1976 to August 14, 2012, there were 1,304 executions, of which 1,130 were by lethal injection, 157 by electrocution, 11 by gas chamber, 3 by hanging, and 3 by firing squad.[81]

The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place. If the state has no death penalty, the judge must choose a state with the death penalty for carrying out the execution. For offenses under the 1988 Drug Kingpin Law, the method of executions is lethal injection. The Federal Correctional Complex in Terre Haute, Indiana is currently the home of the only death chamber for federal death penalty recipients in the United States, where inmates are put to death by lethal injection. The complex has so far been the only location used for federal executions post-Gregg; Timothy McVeigh and Juan Garza were put to death in June 2001, and Louis Jones, Jr. was put to death on March 18, 2003.

In 2004, Utah made lethal injection the only form of capital punishment. However those already on death row were grandfathered on the type of execution they chose at sentencing. At the time of the change in the law there were still three inmates on Utah's death row who had selected firing squad.

The use of lethal injection has become standard. The last executions by other methods are as follows:

MethodDateStateConvict
Electrocution20130116January 16, 2013VirginiaRobert Gleason
Firing squad20100618June 18, 2010UtahRonnie Lee Gardner
Lethal gas19990303March 3, 1999ArizonaWalter LaGrand[82]
Hanging19960125January 25, 1996DelawareWilliam Bailey

The remaining two states that allow hanging[83] are New Hampshire, which allows it at the decision of the Corrections officials,[84] and Washington, at the decision of the prisoner.[85]

Electrocution was the preferred method of execution during the 20th century. Electric chairs have commonly been nicknamed Old Sparky; however, Alabama's electric chair became known as the "Yellow Mama" due to its unique color. Some, particularly in Florida, were noted for malfunctions, which caused discussion of their cruelty and resulted in a shift to lethal injection as the preferred method of execution. Although lethal injection dominates as a method of execution, some states allow prisoners on death row to choose the method used to execute them.

Regardless of the method, an hour or two before the execution, the condemned person is offered religious services, and a last meal (except in Texas), the contents of which is often released to the news media[citation needed]. Executions are carried out in private with only invited persons able to view the proceedings; in some cases, journalists have reserved spots, such as in Texas, where The Associated Press is entitled to send a reporter to witness each execution[citation needed].

Debate

Capital punishment is a controversial issue, with many prominent organizations and individuals participating in the debate. Amnesty International and some religions oppose capital punishment on moral grounds, while the Innocence Project works to free wrongly convicted prisoners, including death row inmates, based on newly available DNA tests. Other groups, such as the Southern Baptists, law enforcement organizations, and some victims' rights groups support capital punishment.

The United States is one of only four industrialized democracies that still practice capital punishment. From the others, Japan and Singapore have executed prisoners, like the United States, while South Korea currently has a moratorium in effect. In 2011, the USA was the only source of executions (43) in the G8 countries or Western Hemisphere.[86]

Elections have sometimes turned on the issue; in 1986, three justices were removed from the Supreme Court of California by the electorate (including Chief Justice Rose Bird) partly because of their opposition to the death penalty.

Religious groups are widely split on the issue of capital punishment,[87] generally with more conservative groups more likely to support it and more liberal groups more likely to oppose it. The Fiqh Council of North America, a group of highly influential Muslim scholars in the United States, has issued a fatwa calling for a moratorium on capital punishment in the United States until various preconditions in the legal system are met.[88]

In October 2009, the American Law Institute voted to disavow the framework for capital punishment that it had created in 1962, as part of the Model Penal Code, "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." A study commissioned by the institute had said that experience had proved that the goal of individualized decisions about who should be executed and the goal of systemic fairness for minorities and others could not be reconciled.[89]

In total, 142 prisoners have been either acquitted, or received pardons or commutations on the basis of possible innocence, since 1973.[90] Death penalty opponents often argue that this statistic shows how perilously close states have come to undertaking wrongful executions; proponents point out that the statistic refers only to those exonerated in law, and that the truly innocent may be a smaller number.

Arguments for and against capital punishment are based on moral, practical, and religious grounds. Advocates of the death penalty argue that it deters crime, is a good tool for prosecutors (in plea bargaining for example),[91] improves the community by eliminating recidivism by executed criminals, provides closure to surviving victims or loved ones, and is a just penalty for the crimes it punishes. Opponents argue that the death penalty is not an effective means of deterring crime,[92] risks the execution of the innocent, is unnecessarily barbaric in nature, is levied disproportionately upon men, racial minorities, and the poor, cheapens human life, and puts a government on the same base moral level as those criminals involved in murder.[93]

Another argument (specific to the United States) in the capital punishment debate is the cost. The convict is more likely to use the whole appeals process if the jury issues a death sentence than if it issues life without parole.[94] But others who contest this argument say that the greater cost of appeals where the prosecution does seek the death penalty is offset by the savings from avoiding trial altogether in cases where the defendant pleads guilty to avoid the death penalty.[95]

As noted in the introduction to this article, the American public has recently maintained its position of support for capital punishment for murder. However, when given a choice between the death penalty and life imprisonment without parole, support has traditionally been significantly lower than polling which has only mentioned the death penalty as a punishment; in the 2010 poll, for instance, the disparity narrowed, with 49 percent favoring the death penalty and 46 percent favoring life imprisonment.[96] The highest level of support recorded overall was 80 percent in 1994 (16 percent opposed), and the lowest recorded was 42 percent in 1966 (47 percent opposed); on the question of the death penalty vs. life without parole, the strongest preference for the death penalty was 61 percent in 1997 (29 percent favoring life), and the lowest preference for the death penalty was 47 percent in 2006 (48 percent favoring life).[97]

After the September 2011 execution of Troy Davis, believed by many to be innocent, Richard Dieter, the director of the Death Penalty Information Center, said this case was a clear wake-up call to politicians across the USA. He said: "They weren't expecting such passion from people in opposition to the death penalty. There's a widely held perception that all Americans are united in favour of executions, but this message came across loud and clear that many people are not happy with it." Brian Evans of Amnesty International, which led the campaign to spare Davis's life, said that there was a groundswell in America of people "who are tired of a justice system that is inhumane and inflexible and allows executions where there is clear doubts about guilt". He predicted the debate would now be conducted with renewed energy.[98]

Minimum age

Executions in the United States from 1608 to 2009
Executions in the United States from 1930 to 2009
Total number of prisoners on Death Row in the United States from 1953 to 2008

Since 1642 (in the 13 colonies, the United States under the Articles of Confederation, and the current United States) an estimated 364 juvenile offenders have been put to death by states and the federal government. The earliest known execution of a prisoner for crimes committed as a juvenile was Thomas Graunger in 1642. Twenty-two of the executions occurred after 1976, in seven states. Due to the slow process of appeals, it was highly unusual for a condemned person to be under 18 at the time of execution. The youngest person to be executed in the 20th century was George Stinney, electrocuted in South Carolina at the age of 14, June 16, 1944. The last execution of a juvenile may have been Leonard Shockley, who died in the Maryland gas chamber April 10, 1959, at the age of 17. No one has been under age 19 at time of execution since at least 1964.[99] Since the reinstatement of the death penalty in 1976, 22 people have been executed for crimes committed under the age of 18. 21 were 17 at the time of the crime. The last person to be executed for a crime committed as a juvenile was Scott Hain April 3, 2003 in Oklahoma.[100]

Before 2005, of the 38 U.S. states that allow capital punishment:

16 was held to be the minimum permissible age in the 1988 Supreme Court of the United States decision of Thompson v. Oklahoma. The Supreme Court, considering the case Roper v. Simmons, in March 2005, found execution of juvenile offenders unconstitutional by a 5–4 margin, effectively raising the minimum permissible age to 18. State laws have not been updated to conform with this decision. Under the US system, unconstitutional laws do not need to be repealed, but are instead held to be unenforceable. (See also List of juvenile offenders executed in the United States)

Distribution of sentences

Within the context of the overall murder rate, the death penalty cannot be said to be widely or routinely used in the United States; in recent years the average has been about one execution for about every 700 murders committed, or 1 execution for about every 325 murder convictions.

Among those sentenced

It is noted that the death penalty is sought and applied more often in some jurisdictions, not only between states but within states. A 2004 Cornell University study showed that while 2.5 percent of murderers convicted nationwide were sentenced to the death penalty, in Nevada 6 percent were given the death penalty.[101] Texas gave 2 percent of murderers the death sentence, less than the national average. Texas, however, executed 40 percent of those sentenced, which was about four times higher than the national average. California had executed only 1 percent of those sentenced.

Among races

African Americans made up 41 percent of death row inmates while making up only 12 percent of the general population. (They have made up 34 percent of those actually executed since 1976.)[102] However, that number is lower than that of prison inmates, which is 47 percent.[103] According to a 2003 Amnesty International report, Africans and Europeans were the victims of murder in almost equal numbers, yet 80 percent of the people executed since 1977 were convicted of murders involving white victims.[102]

A summary of executions in Texas since 1982 concludes:

(Percentage totals exceed 100 percent due to mixed race.)

According to the Death Penalty Information Center there were 46 executions in the United States in 2010 and 55 percent of those people were white and 76 percent of the victims were white as well. As of January 1, 2011 there was 3251 people sitting on death row and 44 percent of those people are white.

Among genders

As of October 31, 2010:[104]

Location of executions: public versus private

Passers-by abusing the bodies of Union supporters near Knoxville, Tennessee. The two were hanged by Confederate authorities near the railroad tracks so passing train passengers could see them.

The last public execution in America was that of Rainey Bethea in Owensboro, Kentucky, on August 14, 1936. It was the last death sentence in the nation at which the general public was permitted to attend without any legally imposed restrictions. "Public execution" is a legal phrase, defined by the laws of various states, and carried out pursuant to a court order. Similar to "public record" or "public meeting," it means that anyone who wants to attend the execution may do so.

About 1890, a political movement developed in the United States to mandate private executions. Several states enacted laws which required executions to be conducted within a "wall" or "enclosure" to "exclude public view." For example, in 1919, the Missouri legislature adopted a statute (L.1919, p. 781) which required, "the sentence of death should be executed within the county jail, if convenient, and otherwise within an enclosure near the jail." The Missouri law permitted the local sheriff to distribute passes to individuals (usually local citizens) who he believed should witness the hanging, but the sheriffs – for various reasons – sometimes denied passes to individuals who wanted to watch. Missouri executions conducted after 1919 were not "public" because they were conducted behind closed walls, and the general public was not permitted to attend.

Present-day statutes from across the nation use the same words and phrases, requiring modern executions to take place within a wall or enclosure to exclude public view. Connecticut General Statute § 54–100 requires death sentences to be conducted in an "enclosure" which "shall be so constructed as to exclude public view." Kentucky Revised Statute 431.220 and Missouri Revised Statute § 546.730 contain substantially identical language. New Mexico's former death penalty, since repealed, see N.M. Stat. § 31-14-12, required executions be conducted in a "room or place enclosed from public view." Similarly, a dormant Massachusetts law, see Mass. Gen. Law ch. 279 § 60, required executions to take place "within an enclosure or building." North Carolina General Statute § 15-188 requires death sentences to be executed "within the walls" of the penitentiary, as do Oklahoma Statute Title 22 § 1015 and Montana Code § 46-19-103. Ohio Revised Code § 2949.22 requires that "[t]he enclosure shall exclude public view." Similarly, Tennessee Code § 40-23-116 requires "an enclosure" for "strict seclusion and privacy." United States Code Title 18 § 3596 and the Code of Federal Regulations 28 CFR 26.4 limit the witnesses to be present at Federal executions.

Today, there are always witnesses to executions – sometimes numerous witnesses, but it is the law, not the number of witnesses present, which determines whether the execution is "public."

All of the executions which have taken place since the 1936 hanging of Bethea in Owensboro have been conducted within a wall or enclosure. For example, Fred Adams was legally hanged in Kennett, Missouri, on April 2, 1937, within a 10-foot (3 m) wooden stockade. Roscoe "Red" Jackson was hanged within a stockade in Galena, Missouri, on May 26, 1937. Two Kentucky hangings were conducted after Galena in which numerous persons were present within a wooden stockade, that of John "Peter" Montjoy in Covington, Kentucky on December 17, 1937, and that of Harold Van Venison in Covington on June 3, 1938. An estimated 400 witnesses were present for the hanging of Lee Simpson in Ryegate, Montana, on December 30, 1939. The execution of Timothy McVeigh on June 11, 2001, was witnessed by some 300 people (some by closed circuit television).

Clemency and commutations

The largest number of clemencies was granted in January 2003 in Illinois, when outgoing Governor George Ryan, who had already imposed a moratorium on executions, pardoned four death-row inmates and commuted the sentences of the remaining 167 to life in prison without the possibility of parole.[105] When Governor Pat Quinn signed legislation abolishing the death penalty in Illinois in March 2011, he commuted the sentences of the fifteen inmates on death row to life imprisonment.[19]

Previous post-Furman mass clemencies took place in 1986 in New Mexico, when Governor Toney Anaya commuted all death sentences because of his personal opposition to the death penalty. In 1991 outgoing Ohio Governor Dick Celeste commuted the sentences of eight prisoners, among them all four women on the state's death row. And during his two terms (1979–1987) as Florida Governor, Bob Graham, although a strong death penalty supporter who had overseen the first post-Furman involuntary execution as well as 15 others, agreed to commute the sentences of six people on grounds of "possible innocence" or "disproportionality."

Suicide on death row and volunteering for execution

The suicide rate of death row inmates was found by Lester and Tartaro to be 113 per 100,000 for the period 1976–1999. This is about ten times the rate of suicide in the United States as a whole and about six times the rate of suicide in the general U.S. prison population.[106]

Since the reinstitution of the death penalty, 137 prisoners have waived their appeals and asked that the execution be carried out. Four states (Connecticut, New Mexico, Oregon, and Pennsylvania) have executed only volunteers so far.[107]

Exonerations from the death row and innocent executed

According to deathpenaltyinfo.org, since the reinstitution of the death penalty, 142 innocent prisoners have been exonerated from the death row. (No. 142, Robert Dewey from Colorado, was exonerated on April 30, 2012.) It is unknown how many of the people executed since 1976 may have been innocent, but some of them were executed although there was considerable doubt about their guilt, e.g. Cameron Willingham (2004) and Troy Davis (2011).

Current moratoria and de facto moratoria

Since the reinstatement of the death penalty, Kansas and New Hampshire have performed no executions, and three states have executed only "volunteers": Pennsylvania has executed three inmates, Oregon, two, Connecticut one. Therefore, these five states can be regarded as having de facto moratoria. However, in 2010, bills to abolish the death penalty in Kansas and in South Dakota (which had a de-facto moratorium at that time) were rejected. Connecticut abolished the death penalty in 2012, but the law is not retroactive. Idaho ended its de facto moratorium, during which only one volunteer had been executed, on November 18, 2011 by executing Paul Ezra Rhoades; South Dakota executed Donald Moeller on October 30, 2012, ending a de-facto moratorium during which only two volunteers had been executed. Of the 12 prisoners whom Nevada has executed since 1976, 11 wanted to die; Kentucky and Montana have executed two prisoners against their will (KY: 1997 and 1999, MT: 1995 and 1998) and one volunteer, respectively (KY: 2008, MT: 2006); Colorado (in 1997) and Wyoming (in 1992) have executed only one prisoner, respectively.

Democratic Governor Parris N. Glendening halted executions in the state of Maryland by executive order on May 9, 2002, but the subsequent Republican governor, Robert Ehrlich, resumed executions in 2004. However, on December 19, 2006, the Maryland Court of Appeals ruled that state executions would be suspended until the manual that spells out the protocol for lethal injections is reviewed by a legislative panel. The state's Department of Corrections had adopted the manual without having a public hearing or submitting it before a committee. Legislative review of the protocol is required before approval under state law.

In North Carolina, a de facto moratorium is in place following a decision by the state's medical board that physicians cannot participate in executions, which is a requirement under state and federal law.

In California, U.S. District Judge Jeremy Fogel imposed a moratorium on the death penalty in the state of California on December 15, 2006, ruling that the implementation used in California was unconstitutional but that it could be fixed.[108]

In Nebraska, the Nebraska Supreme Court ruled, on February 8, 2008, that the use of the electric chair is unconstitutional—specifically, that its use conflicts with the Nebraska Constitution. As electrocution was the sole legally authorized method of execution in Nebraska, the state had what technically amounts to no legally authorized death penalty,[109] until the introduction of lethal injection in that state in May 2009.[110]

After the U.S. Supreme Court agreed to hear the case Baze v. Rees many states had slowed or halted executions as lawyers for death-row prisoners argued that states should not carry out death sentences using a method that may be ruled unconstitutional. While executions had come to an apparent stop until Baze was examined by the court, this was not the intent, according to Supreme Court Justice Antonin Scalia, who stated on October 16, 2007 that stopping all executions by that method was not the high court's intention when it agreed to hear Baze. Just because the justices agreed to take on the case, Scalia said, does not necessarily mean that a moratorium should ensue.[111] However, Justice Scalia's pronouncement was little more than an expression of his personal opinion as dicta made in a dissenting opinion of an unrelated case. As a dissenting opinion it did not, by definition, express the legal opinion of the majority of the court and has no precedential effect.[112]

On November 25, 2009, the Kentucky Supreme Court placed a moratorium on executions until it adopts regulations for carrying out the penalty by lethal injection.[113]

In November 2011, Oregon governor John Kitzhaber announced a moratorium on executions in Oregon, canceling a planned execution and ordering a review of the death penalty system in the state.[114]

On June 22, 2012, the Arkansas Supreme Court ruled that the state's lethal injection law violates the constitution.

On March 15, 2013, the Maryland House of Delegates voted 82-56 to repeal Maryland’s death penalty. It made the state the sixth in six years to abolish executions.[115]

See also

References

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Further reading