Capital Punishment

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The United States is one of the few remaining nations in the world that uses the death penalty, known as capital punishment.

More than 1,000 people have been executed in the United States for certain federal crimes and by some states for murder and violent crimes since the death penalty, or capital punishment, was reinstated in 1976. The U.S. Supreme Court ruled in 1976 that the death penalty is not a violation of the Eighth Amendment to the Constitution, which bans cruel and unusual punishment. That ruling came in the wake of a 10-year moratorium on executions. The most common methods of execution in the United States are lethal injection and electrocution.

Today, criminals in 38 states and those convicted of federal crimes could face the death penalty in the United States. Twelve states and the District of Columbia have abolished the death penalty. Death-penalty statutes in New York and Kansas were declared unconstitutional in 2004; however, in a 5-4 ruling on June 26, 2006, the U.S. Supreme Court let the death penalty stand in Kansas.

Some states, including New Jersey, currently have death penalty moratoriums. In New Jersey, a state study commission held public meetings on the issue and heard testimony from those both for and against capital punishment. On January 2, 2007, the commission issued a report calling on the state to abolish the death penalty.  The report cites high financial burdens for the state and concerns that the death penalty does not deter crime as reasons for eliminating capital punishment. Governor Jon Corzine, an opponent of the death penalty, said in a statement that he will work with the New Jersey Legislature to make the commission’s recommendation a law. The state’s moratorium is expected to expire 60 days after the commission completes its work, although because of pending legislation it is unlikely that any executions will occur soon. There are currently nine people on New Jersey’s death row. The last execution in the state was in 1963.

Federal laws providing for the death penalty include homicide-related crimes such as murder committed during a drug-related shooting; civil rights offenses resulting in murder; murder related to sexual exploitation of children; murder related to a carjacking or kidnapping; and murder related to rape. Crimes not related to homicide that may result in a death sentence include espionage, treason and trafficking of large amounts of drugs.

The reauthorization of the USA PATRIOT Act, signed by President Bush in 2006, extends the federal death penalty to individuals involved in deadly terrorist attacks, including those who transport materials used in a terrorist attack, those who help plot an attack on a mass-transit system and those who participate in an attack on ships and maritime facilities.
Individual states have guidelines for imposing the death penalty. In general, criminals convicted of first-degree murder face the death penalty in all states with capital punishment on the books.

Some people argue that capital punishment is a cruel punishment that degrades American values. However, others see it as a necessary way of protecting society from violent, pre-meditated murders.

Arguments in favor of the death penalty in the United States include deterrence and retribution. Opponents say that the risk of executing the innocent should preclude use of the death penalty. They also question the fairness in the way the death penalty has been applied. One of the most important arguments against the death penalty is the release of studies that show in some cases innocent people have been put to death. On the other hand, many argue that with the rise of terrorism and violent crimes, the government needs a way to punish those who do serious harm to society.

A June 2006 Gallup Poll reports that two out of three Americans support the death penalty for convicted murderers. A March 2008 Harris Interactive Poll reports that 63 percent of Americans support the death penalty. That percentage has been declining since 2003, when the same poll found that 69 percent supported the death penalty.

Because state capital punishment laws vary, you may wish to view information on researching state laws.

You may also wish to view Death Penalty Information Center (pdf 523 KB), if you want to see some recent statistics on capital punishment. As a Washington based, non-profit organization, the DPIC focuses on disseminating studies and reports, and serves the media and the public with analysis and information concerning the death penalty.

Common Arguments

  • Justice/vengeance: Many people feel that killing convicted murderers will satisfy their need for justice and/or vengeance. Some crimes, people argue, are so heinous that executing the criminal is the only reasonable response
  • Deterrence: Some argue that the death penalty will deter criminals from killing. However, this has not been confirmed by statistical data.
  • Respecting the value of human life: The highest punishment must be reserved for someone who disrespects a human life
  • Cost: Once a murderer is put to death, the state does not incur any more maintenance cost in keeping the murderer alive. However, the cost to the state paying for multiple appeals is generally greater than the cost of imprisoning an inmate.
  • Public safety: Once a convicted murderer is executed, there is no chance that he will break out of jail and kill or injure someone

Common Arguments Against the Death Penalty

  • Playing God: Executing a person kills them before the time of their natural death. Religiously speaking, some Christians believe that killing people before their natural death is going against the will of God.
  • Sanctity of Life: Some people argue that life is sacred, even the life of a murderer. Capital punishment, they argue, devalues human life.
  • Lack of Deterrence: The death penalty has not been shown to be effective in the reduction of the homicide rate. Will a murderer really stop to reconsider his/her crimes if the punishment is death rather than life in prision?
  • Cost: The costs to the state of funding appeals by convicted murderers would more than pay for their permanent incarceration.
  • Chance of Error: Many convicted murderers are later found innocent, and have been pardoned. In 1987, a study was published by the Stanford Law Review it found that at least 350 people between 1900 and 1985 in America might have been innocent of the crime for which they were convicted, and could have been sentenced to death. 139 “were sentenced to death and as many as 23 were executed.”
  • Some people consider capital punishment “cruel and unusual.”
  • Uselessness: Killing a murderer does not bring his victim back to life. It achieves nothing but the death of still another person.

The one American institution that has the power to bring about nationwide abolition of capital punishment is the U.S. Supreme Court, which could end the practice by declaring it unconstitutional. This almost occurred in 1972 when a majority of the court ruled (in the case of Furman v. Georgia) that the death penalty, as then administered by the states, violated the constitutional guarantees of due process, equal protection and the prohibition of cruel and unusual punishment.

In the years following Furman, 35 states passed new legislation, reintroducing capital punishment with reformed procedures and safeguards against arbitrariness and discrimination. In light of this show of political support, indicating that most Americans did not regard capital punishment as “cruel and unusual,” and in response to the reforms, the court declared in 1976 that the death penalty could be constitutionally valid when administered according to approved procedures.

In the years since, the Supreme Court has sought to oversee and regulate how states administer death penalty laws and has intervened to ensure constitutional compliance. The outcome is an elaborate process overlaid with appeals and post-conviction review, in federal as well as state courts, resulting in a great deal of expense, delay and uncertainty. The complicated system that emerged from the interplay between local democratic processes and federal constitutional law is one that few Americans seem to like, regardless of whether they support capital punishment.

Recent Rulings

The number of executions in the United States in 2007 dropped to its lowest number since 1994, in part due to legal challenges that cause many states to halt executions temporarily.

There were 42 executions in 2007, according to the Death Penalty Information Center.

The nation’s highest court placed a de facto moratorium on the death penalty by halting any scheduled executions while it reviewed the lethal injection process used by 34 states. Other states also suspended executions, waiting to see what the Supreme Court would decide.

In January 2008, the court heard the case of Baze v. Rees, in which two Kentucky inmates argued the combination of drugs used to administer lethal injections violated a prohibition on cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution.

In an April 16 7-2 ruling, the court said this method of lethal injection does not violate the Constitution, clearing the way for executions to proceed.

“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual,” wrote Chief Justice John Roberts.

Since the ruling, Florida and Virginia have announced they will lift their moratoriums. Others likely will follow suit, while some states will keep their moratoriums in place while officials review their procedures.

Some of the justices acknowledged that the ruling will not put an end to the legal debate over the practice of lethal injection. The court agreed that the Baze v. Rees case did not constitute cruel and unusual punishment. However, the justices were unable to agree on a definition of what would constitute cruel and unusual punishment, other than to say that a challenger must prove that an execution has a “substantial risk of significant harm” and identify an alternative that would reduce risk. It is likely that further cases on the matter will end up in courts.

Data Presented on Capital Punishment in the United States

Number of U.S. death sentences hit 30-year low in 2003, U.S. agencies report.

The following fact sheet on capital punishment in the United States was compiled from U.S. Department of Justice statistics and Department of State sources on December 1, 2004

Fact Sheet: Capital Punishment in the United States

Americans tend to cast the debate over capital punishment in terms of its deterrent value or appropriateness as a sanction for certain serious crimes. Overseas, the use of the death penalty in the United States is frequently raised as a human rights issue — especially when juveniles, the mentally retarded, or the mentally ill are involved.

The latest statistics from the U.S. Department of Justice show a downward trend in death sentences nationwide. In 2003, the latest year for which statistics are available, the number of death sentences imposed hit a 30-year low.

The number of prisoners under sentence of death at year-end 2003 also decreased for the third year in a row.

In 2003, 65 inmates were executed, six fewer than in 2002.

Of those under sentence of death in 2003:

  • 1,878 were white
  • 1,418 were black
  • 29 were American Indian
  • 35 were Asian
  • 14 were of unspecified race
  • 47 were female

Although capital punishment is permitted by the federal government and the U.S. military, international criticism of the death penalty is largely focused on its use by state governments. Consequently, capital punishment in the United States must be understood within the context of American federalism, whereby matters for which the Constitution does not vest responsibility in the federal government are reserved to the states. As a result, states have broad powers to regulate their own general welfare, including enactment and enforcement of criminal laws, public safety and correction. As of 2003, the death penalty was authorized in 38 states, but only 11 of those states executed anyone, two fewer than in 2002.

Even though popular support for the death penalty is currently substantial, its use remains controversial, with support varying by region. Twelve states do not authorize the use of capital punishment, either because of a statutory or a judicial prohibition. Other states have announced moratoria on its use or are considering legislation to abolish it. Jurisdictions without the death penalty are Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, and the District of Columbia.

The Death Penalty and International Law

  • The International Covenant on Civil and Political Rights specifically recognizes the right of countries to impose the death penalty for the most serious crimes, carried out pursuant to a final judgment rendered by a competent court and in accordance with appropriate safeguards and observance of due process.
  • The United States works assiduously in international fora, including the U.N. Commission on Human Rights and the Organization for Security and Cooperation in Europe (OSCE), against the use of the death penalty without due process, such as for political prisoners detained without fair trial by autocratic governments.

The Death Penalty in U.S. Law

  • The U.S. Supreme Court has upheld use of the death penalty for the most serious crimes provided that its use is in accordance with procedural guarantees of the U.S. Constitution and relevant state constitutions.
  • The U.S. judicial system provides an exhaustive system of protections to ensure that the death penalty is not applied in an extra-judicial, summary, or arbitrary manner. All death sentences are automatically reviewed by higher courts in 37 of the 38 states with capital punishment, and all convictions are automatically reviewed in 33 of the 38 states with capital punishment.

The Death Penalty for Crimes Committed by Juveniles

U.S. laws on the execution of juveniles are consistent with U.S. international obligations. When the U.S. ratified the UN International Covenant on Civil and Political Rights (ICCPR), it expressly reserved the right to continue to impose the death penalty for crimes committed by those under the age of 18. As of year-end 2003, two percent of those under sentence of death were age 17 or younger at the time of their arrest.

  • U.S. juvenile courts, designed solely for those under 18, do not sentence juveniles to death. In some cases, however, juveniles may be tried as adults in a court for adults subject to the same penalties as adults. In such cases, a hearing is held, with the accused juvenile represented by legal counsel, prior to a judge ordering that a trial be moved from the juvenile court system to the regular criminal court system.
  • 30 states, the District of Columbia, and the federal government now bar consideration of the death penalty for anyone under 18.
  • Between 1973 and 2000, 17 men were executed in the United States for crimes committed prior to their 18th birthdays. But because of the lengthy appeal process, all 17 were in their twenties or thirties by the time of their execution.
  • The U.S. Supreme Court currently has pending a decision on whether or not juveniles should be eligible for the death penalty.

Capital Punishment and the Mentally Retarded

  • Execution of the mentally retarded is banned as a result of a U.S. Supreme Court ruling in June 2002 that execution of mentally retarded criminals constitutes “cruel and unusual” punishment prohibited by the 8th Amendment to the U.S. Constitution. Individuals are considered mentally retarded if they meet the clinical definition of having not only sub-average intellectual functioning, but also significant limitations in adaptive skills, such as communication, self-care, and self-direction, that became manifest before age 18. Controversy continues, however, over how state prison systems are ensuring accurate diagnosis of those on death row.

Capital Punishment and the Mentally Ill

  • In 1986 the U.S. Supreme Court prohibited the execution of the mentally insane and required an adversarial process for determining mental competency. Legal definitions and concepts of insanity and competency, however, do not always coincide with medical opinion, and as a result controversy continues.