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Capital Punishment

6. Capital Punishment

The acceptance of capital punishment, or the death penalty, as a sentence for heinous criminal acts has been hotly debated across the nation over the last few decades. On the books in most states, the death penalty has been challenged by many, originally on grounds that it violated the Constitutional prohibition against cruel and unusual punishment, and later on the procedural grounds that there were not enough due process protections for defendants accused of capital crimes. In general, it was held that since the sentence was so severe, the law must impose the strictest standards of proof to sentence a defendant to death. Consequently, many states have gone through periods in which the death penalty was held as legal, then illegal, then revised and held as legal, then illegal again, and then further revised and held as legal once more. This shifting status often brought unbalancedunjustsentencing. For instance, in many of these states one of two defendants accused of identical unrelated crimes committed within weeks of each other drew the death sentence while the other did not, merely because the statute under which they were sentenced was ruled unconstitutional in the intervening time.

The Supreme Court has since handed down explicit guidelines defining the legal imposition of the death penalty, allowing states a new opportunity to legislate a legal death penalty statute that is less likely to be ruled unconstitutional in the future. This does not mean that the process is not still open to attack. As of this writing, new cases on the death penalty are currently wending their way through the courts to the Supreme Court.

Thirty-eight states currently have death penalty statutes on the books. In a few states, the statute remains on the books though it has been declared unconstitutional. In some of these cases, the state legislature can either revise or rewrite the death penalty statute if it chooses to make it the law.

There are twelve states that authorize the death penalty for non-homicide crimes. Of note is California, often known for its radical politics, which lists treason as a capital crime. Other common non-homicide capital offenses are kidnapping, hijacking, and other serious crimes that involve hostage-taking or placing a victim in extreme danger.

In the last five years, the method of execution has become the most controversial element of death penalty statutes. Five states have changed their method of execution. While five states, Alabama, Georgia, Kentucky, New York, and Ohio, have changed from electrocution to lethal injection. Georgia, however, is an interesting case. In the last edition of this book it was noted that Georgia had switched from lethal injection to electrocution. In the intervening three years since then, they have switched back to lethal injection. Georgias recent changes in laws is an excellent example of the passionate thinking about this very grave aspect of penal law.

Some states have very complicated criminal statutes; therefore, the following tables may contain less information on some states if nothing explicit can be determined from the state statute alone. Occasionally it is necessary to consult lists or sentencing guidelines that are not part of the code to determine these rules.

Table 6: Capital Punishment
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
ALABAMA
13A-5-39, et seq.
YesMitigating circumstance if defendant under influence of extreme mental or emotional disturbance; forbid execution of insane personNo minimum age but age is a mitigating circumstanceNoneHomicide during the commission of kidnapping; robbery; rape/sodomy; burglary; sexual abuse; arson; hijacking; murder of police officer or public official while on duty or when related to or caused by or is related to his official position, act, or capacity; murder for pecuniary or other valuable consideration; two or more persons murdered in same act/ course of conduct; victim less than 14 years old; murder under life sentence; murder during arson or by means of explosives; murder by defendant who has previously been convicted of murder within 20 years; murder of witness in civil or criminal trial when murder is caused by or related to the testimony; murder during act of unlawfully assuming control of any aircraft; murder when deadly weapon is fired outside of a dwelling when victim is in dwelling; murder by deadly weapon used from or within a vehicle.Lethal injection, unless defendant requests electrocution
ALASKA
12.55.015
Not authorized     
ARIZONA
13-703
Yes, for 1st degree murder with mitigating factorsConsidered mitigating circumstance15NonePrevious capital convictions or homicides; previous conviction of a serious offense; previous felonies with use or threat of violence; knowingly created grave risk of death to persons in addition to victim; procured commission of offense by payment; especially heinous, cruel or depraved manner; adult person and victim under 15 or over 70; victim on duty peace officer and defendant knew or should have known; in custody of state dept. of corrections, law enforcement agency or jail at time of homicideLethal injection. If defendant is convicted for crime committed prior to November 23, 1992, s/he shall choose between lethal gas or lethal injection.
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
ARKANSAS
5-4-601, et seq. ; 5-51-201
Yes, capital murderIf no aggravating circumstances are found or if mitigating circumstances outweigh aggravating circumstances, the court shall impose life in prison without parole; no defendant with mental retardation at the time of committing murder shall be sentenced to death16TreasonHomicide committed by a person incarcerated for felony conviction; committed by person unlawfully at liberty after being imprisoned for felony conviction; use of threat or violence in commission of felony; knowingly created grave risk of death to person other than victim or caused the death of more than one person in the same criminal episode; committed in order to prevent arrest or escape custody; committed for pecuniary gain; committed for purposes of disrupting/hindering lawful exercise of any government or political function; especially cruel or depraved manner by use of torture or methods evidencing the defendants pleasure in committing the murder; committed by means of destructive explosive, bomb, similar deviceLethal injection or electrocution if lethal injection held unconstitutional
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
CALIFORNIA
Pen. Code §§37; 190, et seq. ;§§3604, et seq. ; §§3700, et seq.
Yes, if crime is 1st degree murder with enumerated special circumstancesIf defendant found insane at any time prior to execution, the execution is suspended. Upon recovery, execution is rescheduled18TreasonMurder committed for financial gain; previously convicted of first/second degree murder; multiple murders in same proceeding; bomb, explosives, grave risk; for purposes of avoiding lawful arrest or attempt to escape lawful custody; murder intentional and involved the infliction of torture; intentional killing of peace officer, federal law officer/ agent, fireman in performance of duties, and defendant should have known or knew official status of victim; victim was a juror in any court of record in local, state, or federal system in any state and the murder was intentionally carried out in retaliation or prevention of the victims official duties; the murder was intentional and perpetrated by means of a firearm being discharged from a motor vehicle intentionally at another outside the vehicle with intent to kill; witness of crime intentionally killed to prevent retaliatory testimony at criminal proceeding; retaliation against judge or former judge of this state or any other state, prosecutor, etc.; state officials or officials of any local government of this state or any other state for reasons relating to their office; lying in wait; especially cruel, atrocious, heinous; racial; committed along with robbery, kidnapping, rape, sodomy, oral copulation, burglary, performance of a lewd act upon a child under the age of 14; arson, train wrecking; carjacking; intentionally poisoned; mayhem; rape by instrument; member of a street gang murdering to further activities of the gangLethal gas or lethal injection, but if defendant fails to choose, lethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
COLORADO
8-3-101, et seq ; 18-3-301, et seq; 18-1.3-1201 et seq.
Yes for Class 1 feloniesMitigating factor; suspend sentence; if mentally retarded then sentenced to life in prison.18First degree kidnapping if victim has been injured, but defendant will not be sentenced to death if victim is liberated alive prior to the conviction of kidnapper. Treason.Murder committed by person imprisoned for Class 1, 2 or 3 felony; previous crime of violence; intentionally killed peace officer/former peace officer, judge, firefighter, elected official, federal officer he knew or should have known to be engaged in official duties or retaliation for past official duties; kidnapped person intentionally killed; agreement to kill; explosives or incendiary device; pecuniary gain; heinous or cruel; hate crime; victim was under 12; defendant killed 1 or more persons in the same episode; defendant killed victim knowing she was pregnant.Lethal injection
CONNECTICUT
53a-46a; 53a-54b; 54-100,et seq.
Yes, capital felonySuspend sentence18NoneMurder committed in commission of felony; 2 or more prior felonies involving infliction of serious bodily injury; knowingly created grave risk of death to other persons; murder of a police officer, chief inspector in criminal justice, constable performing criminal law duties, special police; especially heinous, cruel, depraved manner; committed for pecuniary gain; murder committed by a kidnapper of kidnap victim either during abduction or before victim can be returned to safety; seller of illegal narcotic if purchaser dies as a result of use of narcotic; murder of person under 16; during commission of 1st degree sex assault; murder of 2 or more persons at the same time or in the course of a single transaction; murder committed by one who was under sentence of life imprisonment at time of murderLethal injection by a continuous intravenous injection of a substance or substances sufficient to cause death
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
DELAWARE
Tit. 11, §§636, 4209; §406
YesExempt from execution while incapacitated16NoneMurder committed while in or escaped from custody/ confinement; committed for purposes of avoiding/ preventing arrest or for effecting escape from custody; committed against law enforcement officer, corrections employee, fireman engaged in duties; committed against judge, attorney general, other state officer (former or present) during or because of exercise of official duty; hostage/ransom; witness to crime to avoid testimony; paid for it/pecuniary gain; convicted of prior felony using or threat of violence; rape, sodomy, unlawful sexual intercourse, arson, kidnapping, burglary; multiple victims; outrageously or wantonly vile, horrible or inhumane treatment involving torture, depravity of mind or use of explosive device or poison; agent or employee of another person; defendant serving life sentence; victim was pregnant, handicapped, severely disabled or 62 years of age or older; child 14 years or younger and murderer was 4 years older; present or past nongovernment informant or provided information and killed in retaliation; murder was premeditated and result of substantial planning; or murder committed for purpose of interfering with victims exercise of a constitutional right protected by the first amendment or because of the victims race, religion, national origin, or disabilityLethal injection
DISTRICT OF COLUMBIA
22-2404
No     
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
FLORIDA
775.082, 782.04(1); 921.141; 922.07; 922.10 et seq. ; 921.142; 922.08
YesExempt from execution if insane or pregnant for duration of condition16May apply to capital drug trafficking; may apply to sexual batteryCapital felony committed by person serving sentence of imprisonment or under community control; previous capital felony or felony using or threat of violence; knowingly created great risk of death to many persons; the capital felony was committed while defendant was engaged in, was an accomplice, in commission of or attempt to commit or flight after committing or attempt to commit any robbery, sexual battery, aggravated child abuse, aggravated abuse of a disabled or elderly person, aggravated stalking, carjacking, arson, burglary, kidnapping, aircraft piracy, unlawful throwing, placing, or discharging of a destructive device or bombings; capital felony for purposes of avoiding lawful arrest or effecting escape from custody; capital felony for pecuniary gain; capital felony to hinder lawful exercise of governmental function or enforcement of laws; capital felony especially heinous, atrocious or cruel; premeditated homicide; victim of capital felony was public official or law enforcement officer engaged in official duties; victim of capital murder was less than 12 years old; criminal felony committed by a criminal street gang member.Lethal injection, unless person sentenced to death elects for electrocution; if either or both found to be unconstitutional, then by any constitutional method
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
GEORGIA
17-10-30, et seq.
YesSuspend sentence; shall not be executed; if pregnant, time period after no longer pregnant17Aircraft hijacking or treason in any caseMurder, rape, armed robbery, kidnapping committed by person with prior record of conviction for capital felony; murder, rape, armed robbery, kidnapping committed while engaged in commission of other capital felony; knowingly created grave risk of death to multiple persons in public place by use of weapon/ device; murder committed for financial gain; judicial officer, district attorney or solicitor (or formers) because of exercise of duties; committed as agent of another; outrageously or wantonly vile, horrible or inhuman; against peace officer, corrections officer, fireman while performing duties; offender escaped from lawful custody/confinement; avoiding lawful arrestLethal injection
HAWAII
706-656
No     
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
IDAHO
18-4001, et seq. ; 19-2515, et seq.; 19-2701, et seq.
YesIf as result of mortal disease or defect a person lacks capacity to understand proceedings against him, he cannot be tried, convicted, sentenced or punished so long as incapacity endures; if pregnant, time period after no longer pregnant.16Kidnapping in the 1st degree unless prior to imposition of sentence victim is liberated unharmedMurder committed by person guilty of a previous conviction of another murder; knowingly created great risk of death; committed for remuneration; especially heinous, atrocious or cruel; circumstances show utter disregard for human life; murder of 1st degree with specific intent to cause death; propensity to commit murder, i.e., a continuing threat to society; murder of former/ present peace officer, judicial officer, executive officer, officer of the court, fireman, prosecuting attorney for reasons relating to the performance of their official duties; murder of witness in criminal or civil proceeding; murder committed during perpetration of arson, rape, robbery, burglary, kidnapping or mayhem and defendant killed, intended to kill, or acted with reckless indifference to human life; murder while escaping or attempting to escape from a penal institutionLethal injection; firing squad if lethal injection not possible
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
ILLINOIS
720 ILCS 5/9-1, et seq ; 720 ILCS 5/ 10-2; 720 ILCS 5/ 30-1; 725 ILCS 5/ 119-5; 730 ILCS 5/5-5-3
YesMitigating factor18TreasonFirst degree murder committed upon a peace officer or fireman in the performance of his duties; an employee of the Department of Corrections in the performance of his duties; an inmate in a correctional facility or otherwise was present in the facility with the approval of the prison administration; murder involves more than one victim; committed during hijacking of airplane, train, ship, bus, or other public conveyance; committed for financial gain; committed during robbery, stalking, burglary, arson, kidnapping, drug conspiracy, sexual assault; victim was under 12; murder of witness in order to prevent victim from testifying against defendant; while defendant was incarcerated and was committing any other offense punishable under IL law as a felony; victim was an emergency medical technician; murder involving torture; committed by using firearm in motor vehicle with victim outside of vehicle; victim over 60; victim disabled; victim was teacher murdered at school; victim under order of protection from defendant; in connection with or as a result of the offense of terrorismLethal injection or, if lethal injection held illegal or unconstitutional, electrocution
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
INDIANA
35-50-2-3; 35-50-2-9; 35-38-6-1, et seq.
YesHearing to determine whether defendant has ability to understand proceedings; if ability lacking, court can delay or continue trial; may not impose death sentence if determined mentally retarded18NoneIntentional murder while committing/attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, robbery, carjacking, criminal gang activity dealing in cocaine or narcotic drug; unlawful detonation of explosive with intent to injure; lying in wait; hiring or hired to kill; victim was law enforcement officer, etc.; another conviction of murder; under sentence of life imprisonment and time; victim dismembered; victim less than 12 years old; victim was witness against defendant; has committed another murder at any time regardless of whether convicted; committed murder by firing into an inhabited dwelling or from a vehicle; victim of murder was pregnant and murder resulted in intentional killing of a viable fetus; victim was burned, mutilated or tortured while victim was still aliveLethal injection
IOWA
902.1
No     
KANSAS
21-3401; 21-3436; 21-3439, 21-4624 et seq. ; 22-4001
YesSuspend sentence18NoneMurder committed in the commission of, attempt to commit, or in flight from an inherently dangerous felony, including: kidnapping, robbery, rape, burglary, theft, child abuse, sodomy, arson, treason; murder committed for hire or hiring one to commit murder; murder committed while defendant is in custody of correctional institution; murder of law enforcement officer; of multiple persons; of child under 14 in commission of kidnappingLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
KENTUCKY
431.220; 431.240; 532.025; 640.040; 509.040
YesExecution suspended if person is insane or pregnant with child until restored to sanity or delivered of child16Kidnapping if victim not released alive or dies later or caused by kidnappingPrior capital offense conviction; substantial history of serious assaultive criminal convictions while committing arson, robbery, burglary, rape, sodomy; knowingly created great risk of death to more than 1 person in a public place; for remuneration; intentional and resulted in multiple deaths; intentional and victim state or local official or police officer in performance of duties; victim had protective order against defendantLethal injection; if received death penalty prior to March 31, 1998, choice between electrocution or lethal injection, lethal injection is default method
LOUISIANA
14:30, et seq.; 14:113; 15:567, et seq.
YesIf woman defendant is found to be pregnant, execution is stayed until 90-120 days from end of pregnancy; a person may not be executed while suffering from mental illnessNo minimum ageTreasonMurder committed during commission of aggravated rape, forcible rape; aggravated kidnapping; aggravated burglary; aggravated arson; drive-by shooting; aggravated escape; armed robbery or simple robbery or first degree robbery victim was fireman or police officer engaged in lawful duties; previous conviction of murder and other serious crimes; knowingly created a risk of death or great bodily harm to more than 1 person; for remuneration; especially heinous, atrocious or cruel; victim under age of 12 years or over 65 years; distribution, etc. of a controlled dangerous substance; victim was witness against defendantLethal injection
MAINE
Tit. 17A §§1251, 1152
No     
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
MARYLAND
Art. 27 §§71, 75, 412, 413, 627
YesExecution of incompetent prohibited; not allowed against mentally retarded at time of murder and retardation manifested before age 2218NoneVictim was law enforcement officer on duty; defendant was confined to correctional institution; escaped/attempted to escape lawful custody, evade arrest, or detention; kidnapping; child abduction; for remuneration; while under death or life sentence; more than one murder in first degree arising from same incident; while committing/attempting to commit robbery, arson, carjacking, rape, sexual offenseLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
MASSACHUSETTS
Ch. 279 §§57-71
No; statutes still on books but Commonwealth v. Colon-Cru z, 393 Mass. 150, 470 N.E.2d 116 (1984) said state statute violates state constitutionSuspend sentence if insane or pregnantNo minimum ageNoneVictim was police officer, special police officer, state or federal law enforcement officer, officer or employee of the department of corrections, sheriffs department, fireman, etc. acting in official duty; while defendant incarcerated; victim was judge, prosecuting attorney, juror or witness in official duty; previous murder conviction or of an offense in any federal state or territorial jurisdiction of the U.S. which is the same or necessarily includes the elements of an offense of murder in 1st degree; for hire; to avoid arrest, while escaping; involved torture or infliction of extreme pain; course of conduct-killing or serious injury to more than one person; explosive device; while rape, rape of a child, assault on a child, indecent assault and battery on a child under 14 years old, assault with intent to rape, assault on a 16-year-old with intent to rape; assault and battery, kidnapping, kidnapping for ransom; breaking and entering with intent to commit a felony, armed assault in a dwelling, confining or putting in fear or harming for purpose of stealing from depositories; murder occurred while in defendant in possession of a sawed-off shotgun or machine gun; robbery, arson, etc.Electrocution or at election of prisoner, lethal injection
MICHIGAN
Const. Art. 4 §46; §750.316
No     
MINNESOTA
609.10; 609.185; 1911 Minn. Laws Ch. 387
No     
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
MISSISSIPPI
97-3-21; 97-7-67; 97-25-55; 99-19-51, et seq. ; 99-19-101 et seq.
YesSuspend sentence if insane or pregnant16Treason; aircraft piracyMurder committed while under sentence of imprisonment; previous conviction of another capital offense or felony involving violence; knowingly created great risk of death to many persons; while committing/ attempting to commit robbery, rape, arson, burglary, kidnapping, aircraft piracy; sexual battery, unnatural intercourse with child under 12 years, nonconsensual unnatural intercourse with mankind, battery of child, unlawful detonation of explosives; avoiding/ preventing arrest or escape from custody; for pecuniary gain; disrupt/hinder lawful exercise or enforcement of laws; heinous, atrocious or crueltyLethal injection; lethal gas if lethal injection held unconstitutional
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
MISSOURI
546.720; 552.060; 565.020; 565.032; 562.051; 576.070; 195.214
YesSentence is suspended until certified as free of mental disease or defect16NoneMurder committed by one with prior conviction for murder in 1st degree or multiple assaultive convictions; while committing or attempting to commit another homicide; knowingly created great risk of death to more than 1 person; for monetary value; victim was judicial or former judicial officer, present or former prosecuting attorney or assistant prosecuting attorney, assistant circuit attorney, peace officer, elected official during or because of the exercise of official business/ duty; for hire; outrageously or wantonly vile, horrible or inhuman; while escaping, avoiding, or awaiting arrest; engaged in rape, sodomy, burglary, robbery, kidnapping or any felony offense; victim was witness or potential witness; victim was employee of correctional system in course of duty; victim was an inmate of correctional facility/ institution; hijacking; to conceal or prevent prosecution of a felony offense; to prevent victim from initiating/aiding prosecution; murder was commission of a crime which is part of a pattern of criminal street gang activityLethal gas or lethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
MONTANA
45-5-102; 46-18-220; 46-18-301, et seq. ; 46-19-101,et seq. ; 46-19-201, et seq.
YesIf defendant is found to be mentally unfit, sentence is suspended, but if fitness is regained, execution must be carried out unless so much time has elapsed that it would be unjust; if pregnant, suspended18Aggravated assault or aggravated kidnapping while incarcerated at state prison by person previously convicted for murder or persistent felony offenderMurder committed while currently serving sentence of imprisonment; previous murder conviction; committed by torture; lying in wait or ambush; part of scheme or operation which would result in death of more than 1 person; victim was peace officer performing duty; aggravated kidnapping; while incarcerated at state prison by person previously convicted of murder or persistent felony offender; while committing sexual assault, sexual intercourse without consent, deviate sexual conduct or incest and victim less than 18 yearsLethal injection
NEBRASKA
28-105, et seq. ; 28-303; 29-2519, et seq.
YesIf woman convict is found to be pregnant, execution is suspended until she is no longer pregnant; if convict is determined to be mentally incompetent, execution is suspended until competency is restored; not against any person with mental retardation18 at time of crimeNonePrevious felony conviction involving of violence; multiple victims; for hire, pecuniary gain; defendant hired another to commit murder for defendant; law enforcement official or public servant with custody of defendant; committed to hinder lawful exercise of governmental function or enforcement of laws; to conceal crime or identity of person committing crime; offender should have known victim was public servant; especially heinous, atrocious, cruel; created great risk of death to at least several personsElectrocution
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
NEVADA
176.025; 176.345, et seq. ; 176.415, et seq. ; 200.030, et seq.
YesSuspend sentence when defendant is found insane or pregnant16NoneFirst degree murder and murder of multiple victims (random, no motive); involved torture; peace officer or fireman engaged in official duties; for remuneration; avoid lawful arrest or effect escape from custody; connection with robbery, sexual assault, arson, burglary, kidnapping; knowingly created great risk of death to more than one person other than the victim; previous murder/felony convictions involving use/ threat of violence; offender serving sentence; victim was less than 14 years old; murder committed because of victims race, religion, or ethnic backgroundLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
NEW HAMPSHIRE
630:1, et seq.
YesExempt from execution if pregnant17NoneIntentional murder or infliction of serious bodily injury leading to death; committed by a person already in prison; already convicted of murder; defendant previously been convicted of 2 or more state or federal crimes punishable by terms of imprisonment of more than one year on different occasions involving crimes upon a person or distribution of controlled substances; defendant created grave risk of death to one or more persons during commission of capita murder; murder committed with premeditation and planning; especially heinous, cruel or depraved manner; for pecuniary gain; committed for purpose of escape from lawful custody; victim was particularly vulnerable due to old age, youth or infirmity; victim a law enforcement officer or judicial officer acting in line of duty or when death is caused as a consequence of or in retaliation for such persons actions in line of duty; multiple victims; while attempting to commit kidnappingLethal injection, or hanging if lethal injection becomes impractical to carry out
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
NEW JERSEY
§§2A: 4A-22; 2C:11-3; 2C:49-2
YesExempt from execution if mentally ill/ retarded18NonePrevious murder conviction; purposely knowingly created grave risk of death to another other than victim; outrageously or wantonly vile, horrible or inhuman; for pecuniary value; defendant paid for it; purpose was to escape detection, apprehension, trial, punishment or confinement for another offense committed by defendant or another; in connection with murder, robbery, sexual assault, arson, burglary, kidnapping, carjacking; victim was public servant, relating to official duties; was leader of narcotics trafficking network and committed or committed with leaders direction in furtherance of conspiracy; homicidal act caused or risked widespread injury or damage; victim less than 14 years; murder committed during commission or attempt or flight from a terrorist actLethal injection after sedation
NEW MEXICO
31-14-4, et seq. ; 28-6-1; 31-18-14(A); 31-20A-5; 20-12-42
YesSuspend sentence if insane or pregnant18EspionagePeace officer engaged in duties; connection with kidnapping, criminal sexual contact of a minor or criminal sexual penetration; attempt to escape penal institution of New Mexico; victim was employee of corrections and criminal rehabilitation, while incarcerated; incarcerated at time of offense; for hire; witness to a crime to prevent testimony, reporting of crime or in retaliationLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
NEW YORK
Penal §60.06; 125.27; Crim. Pro. §400.27;Correction Law §650 et seq.
Yes; for 1st degree murderSuspend sentence if insane; if mentally retarded, life sentence without parole or term of imprisonment for class A-I felony of murder in the first degree; stay execution to extent necessary if pregnant18 at time of crimeNoneVictim was public officer in official duty; victim was employee of state correctional institution in official duty; defendant was under sentence for a minimum of 15 year or had escaped from confinement or custody; committed an act of terrorism; convicted of 2 class A felonies or class B violent felonies committed on different occasions in 10 year period prior to murder; victim killed to prevent being a witness; for pecuniary gain; multiple victims; defendant acted in an especially cruel or wanton manner; victim killed in furtherance of an act of terrorismLethal injection
NORTH CAROLINA
14-17; 15A-1001,et seq. ; 15A-2000; 122C-313; 15-187
YesExempt from execution if insane17; no minimum age for first degree murder while serving prison sentence for prior murder or which work on escape from such sentence.NoneCapital felony committed by person lawfully incarcerated; previous capital felony convictions; previous felony conviction involving use/threat of violence; avoid lawful arrest or escape from custody; in connection with homicide, rape or sex offense, robbery, arson, burglary, kidnapping or aircraft piracy or bombing; for pecuniary gain; hinder lawful exercise of governmental function or enforcement of laws; victim was law enforcement officer, employee of Corrections Department jailer, fireman, judge or justice, prosecutor, juror or witness while engaged in duties or former; especially heinous, atrocious, or cruel; great risk of death to more than one person; in connection with other crimes of violence against other person(s)Lethal injection
NORTH DAKOTA
Ch. 12-50 repealed by N.D. Laws Ch. 116 §41
No     
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
OHIO
2929.02, et seq. ; 2949.22, et seq.
YesSuspend sentence if insane or pregnant18NoneAssassination of public official; for hire; escape detection, apprehension, trial or punishment for another offense; committed while a prisoner in detention facility; prior murder convictions or multiple victims now; victim was peace officer; rape, kidnapping, aggravated arson, aggravated robbery, aggravated burglary; witness of crime to prevent testimony or retaliation for testimonyLethal injection
OKLAHOMA
Tit. 21 §§701.10, et seq. ; Tit. 22 §§1005, et seq.
YesSuspend sentence if insane or pregnant16NonePrevious felony conviction involving use/threat of violence; knowingly created great risk of death to more than one person; for remuneration or employed another for remuneration; especially heinous, atrocious or cruel; avoiding lawful arrest or prosecution; committed while serving sentence for felony; probability of defendant being continuing threat to society; victim was a peace officer or guardLethal injection or electrocution if lethal injection held to be unconstitutional or firing squad if both of above found to be unconstitutional
OREGON
137.080, et seq. ; 137.473; 161.295, et seq.; 163.105, 163.150
YesProhibits death penalty18NoneIn determining aggravating circumstances, court shall consider any evidence received during proceeding; presentence report; any other relevant evidence court deems trustworthy and reliableLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
PENNSYLVANIA
Tit. 18 §1102; Tit. 42 §9711; Tit. 61 §3004
Yes 16NoneMurder of fireman, peace officer, public servant killed in performance of duties; victim was a judge of any court in unified judicial system, attorney general of Pennsylvania, deputy attorney general, district attorney/ assistant district attorney, member of a general assembly, governor, lieutenant governor, auditor general, state treasurer, state law enforcement official, local law enforcement official, federal law enforcement official or person employed to assist or assisting any law enforcement official in performance of his/her duties; in defendant paid or was paid to perform the murder; the victim was a hostage being held for ransom; during an aircraft hijacking; victim was prosecution witness to prevent testimony; during perpetration of a felony; knowingly created grave risk of death to another in addition to victim; torture; significant history of felony convictions involving use/ threat of violence; previous life sentence or death; defendant convicted of voluntary manslaughter either before or at time of killing; defendant committed the killing or was accomplice in killing; committed during perpetration of a felony under the Controlled Substance, Drug, Device & Cosmetic Act; victim was or had been in competition with defendant in the sale, manufacture, distribution or delivery of any controlled substance, counterfeit controlled substance, etc.; victim was under 12; victim was known to defendant to be in her third trimester of pregnancy; at the time of killing, victim was or had been a non-governmental informant; defendant was under court order restricting defendants behavior toward the victimLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
RHODE ISLAND
11-23-2
No     
SOUTH CAROLINA
16-3-10, et seq. ; 24-3-530; 44-23-210, et seq.
YesA female who is pregnant may not be executed until 9 months after she is no longer pregnant; defendants capacity to appreciate conduct is a mitigating circumstance16; under 18 is a mitigating circumstanceNoneMurder in connection with any criminal sexual conduct, kidnapping, burglary, armed robbery, larceny with use of deadly weapon, poison, drug trafficking, physical torture during commission of a drug trafficking felony; prior murder conviction; dismemberment of a person; knowingly created great risk of death to multiple persons in public place; for money or monetary value; judicial officer, solicitor, or other officer of the court (or formers) because of exercise of duties; agent/employee of another; law enforcement officer, peace officer, correction employees, fireman (or formers) related to duty; family members of abovementioned; multiple victims; victim is a child 11 or under; killing of a witness; killing by mob, lynching; killing during a duelElectrocution or lethal injection, at the election of the defendant, but if lethal injection is held unconstitutional, then electrocution; if election is waived, then lethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
SOUTH DAKOTA
22-16-4; 23A-27A-1, et seq.
YesSentence suspended during period of mental incompetency or while defendant is pregnant. In event of pregnancy, execution may be carried out not less than 30 days nor more than 90 days from date of new warrant from the governor appointing the execution; life sentence without parole if mentally retarded at time of crime and was mentally retarded before age 1816Kidnapping with gross permanent physical injury to victimPrior felony convictions, class A/B felony/serious assaultive criminal convictions; knowingly created great risk of death to others; for the benefit of the defendant or another; for the purpose of receiving money or any other thing of monetary value; for remuneration or as agent/ employee of another; members of criminal justice system (judge, attorneys) related to their exercise of duties; outrageously or wantonly vile, horrible or inhuman; law officer, corrections employee, fireman while engaged in performance of official duties; offender escaped from lawful custody/ confinement; avoiding lawful arrest of himself or another; in connection with distributing, manufacturing or dispensing illegal substances; testimony regarding impact of crime on victims family; if victim is less than 13 years oldLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
TENNESSEE
39-13-201, et seq. ; 37-1-102; 40-23-114
YesProhibited for mentally retarded18 Offender over 18, victim under 12; previous felony convictions; great risk of death to multiple persons other than victim; employed or done for remuneration; especially heinous, atrocious or cruel; avoiding lawful arrest of defendant or another; in connection with any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft piracy, bombing; committed while in lawful custody/confinement or escape from; committed against law enforcement officer, corrections person, firefighter engaged in duties, also judge, attorney general, district attorney, etc. (and formers) due to performance of duties; against elected official; mass murderer; mutilation of victims body; victim was 70 or older or victim was particularly vulnerable due to disability; committed in course of terrorismLethal injection unless offense committed prior to January 1 1999, then may elect for electrocution
TEXAS
Pen. 12.31, 19.03, 8.07; CCrP 37.071, 43.14
YesExempt from execution17 Victim is peace officer or fireman in official duty; while committing/attempting to commit kidnapping, burglary, robbery, aggravated sexual assault or arson; obstruction; retaliation; for remuneration or employs another; while escaping; incarcerated and victim is employee or inmate; murder more than one person during same criminal transaction or scheme or course of conduct; victim under 6 yearsLethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
UTAH
77-15-1; 77-19-13; 77-18-5.5; 76-3-206, et seq. ; 76-5-202
YesIf defendant is found incompetent or pregnant, sentence is suspended until competency returns or person is no longer pregnant, at which time sentence is reimposed and to be carried out within 30-60 days16 Offender confined in jail or other correctional facility; multiple murders; knowingly creates great risk of death to person other than victim; in connection with aggravated robbery, robbery, rape, rape of child, object rape, object rape of child, forcible sodomy, sodomy upon child, sexual abuse of child, child abuse of child under 14, aggravated sex assault, aggravated arson, arson, burglary, kidnapping; avoiding lawful arrest; pecuniary or other personal gain; contracted; previously convicted of murder or felony involving use/threat of violence; purpose of preventing witness from testifying in criminal procedure or person from offering evidence or hindering lawful governmental function or enforcement of laws; official or candidate for public office, homicide based on/ related to official position; firefighter, peace officer, law officer or anyone involved in criminal justice system; bombs; in connection with unlawful control of aircraft, train, other public conveyance; poison; hostage/ransom; homicide especially heinous, atrocious, cruel or depraved mannerDefendant at time of execution may select either firing squad or lethal injection. If s/he does not select, then lethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
VERMONT
Tit. 13 §§7101, et seq.
No. Vermont has death penalty statute but it has never been amended to conform to Supreme Courts decision in Furman v. Georgia, 408 U.S. 238 (1972); hence constitutionally invalid.    Electrocution
VIRGINIA
18.2-10; 18.2-17; 18.2-31; 19.2-167, et seq. ; 53.1-233, 19.2-264.2, et seq.
YesCannot stand trial for criminal offense if insane16 Capital offenses include willful, deliberate, premeditated killing: In connection with abduction for extortion of money or pecuniary benefit; for hire; committed while confined to state correctional facility; armed robbery; rape, sodomy; law officer for purposes of interfering with official duties; multiple murders; victim in commission of abduction, intended to extort money or for pecuniary benefit; controlled substance; outrageously or wantonly vile, horrible or inhuman; continuing serious threat to society; willful killing of a pregnant woman by person who knows woman is pregnant; any person under 14 by a person 21 and older; act of terrorismElectrocution or by lethal injection
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
WASHINGTON
10.95.010, et seq. ; 10.95.180; 9.82.01
YesMitigating factor; exempt from execution of mentally retarded18TreasonLaw enforcement officer, corrections officer or firefighter in performance of official duties; offender escaped from confinement; offender in custody as consequence of felony conviction; agreement for money or value; contracted; obtain, maintain or advance position in organization; during course of or as a result of shooting from or near a motor vehicle used as a transport; victim was member or former member of criminal justice system (judge, attorney, juror, parole officer, etc.) related to their official duties; committed to conceal crime or identity of person committing crime; multiple victims; in connection with robbery, rape, burglary, kidnapping, arson; victim was news reporter and committed to obstruct investigation, research or reporting activities; victim had court order against defendant; victim and defendant were of same household and within 5 years harassment or criminal assault had occurred 3 or more timesLethal injection or hanging at election of defendant
WEST VIRGINIA
61-11-2 (1984)
No     
WISCONSIN
939.50(3)(a); 940.01
No     
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
WYOMING
6-2-101, et seq. ; 7-13-901, et seq.
YesSuspend sentence if mentally incapacitated or pregnant16NoneWhile under sentence, on parole/probation, after escaping detention or released on bail; previous conviction for murder in first degree or felony using violence; knowingly created great risk of death to 2 or more persons; while committing/attempting to commit aircraft piracy or unlawful discharge of bomb; while escaping or avoiding arrest; for pecuniary gain; was especially atrocious or cruel; court official in exercise of official duty; victim is less than 17 years or older than 65 years; victim especially vulnerable due to significant mental or physical disability; poses substantial and continuing threat or likely to commit acts again; while committing/attempting to commit robbery, sexual assault, arson, burglary, kidnappingLethal injection or lethal gas if injection ruled unconstitutional

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"Capital Punishment." National Survey of State Laws. 2008. Encyclopedia.com. 1 Jul. 2016 <http://www.encyclopedia.com>.

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Capital Punishment

CAPITAL PUNISHMENT

The lawful infliction of death as a punishment; the death penalty.

Capital punishment continues to be used in the United States despite controversy over its merits and over its effectiveness as a deterrent to serious crime. A sentence of death may be carried out by one of five lawful means: electrocution, hanging, lethal injection, gas chamber, and firing squad. As of 2003, 38 states employed capital punishment as a sentence; 12 states—Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin—and the District of Columbia did not.

The first known infliction of the death penalty in the American colonies occurred in Jamestown Colony in 1608. During the period of the Revolutionary War, capital punishment apparently was widely accepted—162 documented executions took place in the eighteenth century. At the end of the war, 11 colonies wrote new constitutions, and, although nine of them did not allow cruel and unusual punishment, all authorized capital punishment. In 1790, the First Congress enacted legislation that implemented capital punishment for the crimes of robbery, rape, murder, and forgery of public securities. The nineteenth century saw a dramatic increase in the use of capital punishment with 1,391 documented executions. The death penalty continued as an acceptable practice in the United States for some time.

In 1967, a national moratorium was placed on capital punishment while the U.S. Supreme Court considered its constitutionality. In 1972, it appeared that the Court had put an end to the death penalty in the case of furman v. georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed 2d 346, declaring certain capital punishment laws to be unconstitutionally cruel and unusual because juries were applying them arbitrarily and capriciously. It seemed as if Furman would mark the passing into history of capital punishment in the United States.

By 1976, Georgia, Florida, and Texas had drafted new death penalty laws, however, and the U.S. Supreme Court upheld them. Of the nine justices, only two, william j. brennan jr. and thurgood marshall, persisted in the belief that capital punishment is unconstitutional per se. Capital punishment had survived, and so had the controversies surrounding it.

Although the U.S. Supreme Court has held that the Constitution permits the use of capital

punishment, decisions on this issue have divided the Court and have done little to convince opponents of the death penalty that it is fair. Critics have argued that the death penalty is a form of cruel and unusual punishment, that it is applied in a racially discriminatory manner, that it lacks a deterrent effect, and that it is wrong.

Cruel and Unusual Punishment

The eighth amendment of the U.S. Constitution prohibits the government from inflicting "cruel and unusual punishments." The controversy over the constitutionality of the death penalty lies in the ambiguity of the phrase "cruel and unusual." The first meeting of Congress addressed the phrase for only a few minutes. Congressman william smith of South Carolina foreshadowed the controversy to come when he stated that the wording of the Eighth Amendment was "too indefinite."

Whereas some argue that the phrase "cruel and unusual" refers to the type of punishment inflicted (such punishments as the severing of limbs, for example, would almost certainly be considered cruel and unusual), others feel that the phrase refers to the degree and duration of the punishment. The U.S. Supreme Court has rejected both interpretations, leaving the death penalty a legal means of punishing certain criminals.

The Costs of Capital Punishment

In 1989, the state of Florida executed 42-year-old Ted Bundy. Bundy confessed to 28 murders in four states. During his nine years on death row, he received three stays of execution. Before he was put to death in the electric chair, Bundy cost taxpayers more than $5 million.

In a country where some 70 percent of the population favors the death penalty, many people may feel that Bundy got what he deserved. A further question, however, is whether U.S. taxpayers got their money's worth. When a single sentence of death can cost millions of dollars to carry out, does it make economic sense to retain the death penalty?

At first glance, the costs involved in the execution of an inmate appear simple and minuscule. As of 2003, the state of Florida paid $150 to the executioner, $20 for the last meal, $150 for a new suit for the inmate's burial, and $525 for the undertaker's services and a coffin. In Florida, the cost of an execution is less than $1,000.

The actual execution of an inmate is quick and simple; the capital punishment system is far more complex. To resolve issues of unconstitutionality that the Supreme Court found in furman v. georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), states found it necessary to introduce a complex appeals process that would guarantee the rights of death row inmates. Capital trials are much more expensive to carry out than are their noncapital counterparts because of the price at stake, the life of the accused. Evidence gathering is also more expensive: evidence must be collected not only to determine the guilt or innocence of the accused but also to support or contradict a sentence of death. All sentences of death face a mandatory review by the state supreme court, at an additional cost of at least $70,000. If a case advances further in the state or federal appeals process, the costs are likely to jump to $275,000 or more for each appeal.

Appeals of a death sentence guarantee great expense to the taxpayer, as the state pays both to defend and to prosecute death row inmates. Public defenders in such appeals openly admit that their goal is delay, and prosecutors and state attorneys slow the process by fighting access to public records and allowing death row defendants to sweat out their cases until the last minute.

Abolitionists believe that the existing system cannot be repaired and must be abandoned. The alternative sentence, life imprisonment without parole, achieves the same result as capital punishment, they argue. Like the death penalty, a life sentence permanently removes the convict from the community against which he or she committed crimes. And it is far less expensive.

According to a 1990 study, the total cost to build a maximum-security prison cell is $63,000, which breaks down to approximately $5,000 a year in principal and interest. The annual cost to maintain an inmate in this cell is approximately $20,000 a year. Together, these costs mean an annual expenditure of $25,000 to incarcerate an inmate. Based on a sentence term of 40 to 45 years, one inmate would cost the taxpayer only slightly more than $1 million—less than a third of what it would take to pay for the process that culminates in execution. A twenty-five-year-old woman convicted of first-degree murder would need to serve a life term to the age of 145 before the costs of incarcerating her would surpass those of executing her.

Other studies have reached similar conclusions. According to a study by the Indiana Criminal Law Study Commission released in 2002, executions cost the state 38 percent more than the costs of keeping an inmate incarcerated for life. Similarly, a 1993 study at Duke University showed that between 1976 and 1992, the state of North Carolina spent in excess of $1 billion on executions or $2.16 million per execution. Moreover, in January 2003, the California governor approved the construction of a $220 million state-of-the-art death row.

Not only are the costs of execution excessive but so too are the time delays. It is not unusual for an individual to wait on death row for more than ten years. In the 1995 case Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304, Clarence Allen Lackey, who had been on death row for seventeen years, claimed that such a duration constituted cruel and unusual punishment. Although his motion was denied, Justices john paul stevens and stephen breyer admitted that the concern was not without warrant.

Opponents of capital punishment point out that abandoning the death penalty would make available many millions of dollars as well as thousands of hours that the courts could allocate to other aspects of the criminal justice system. The amount of money necessary to execute a single inmate might be used to put several criminals behind bars for the remainder of their lives.

Supporters of capital punishment agree with detractors on one issue: the death row appeals process is far too complex and expensive. However, while opponents of the death penalty use this as a reason to reform sentencing, supporters use it as a reason to reform the system of appeals. Supporters argue that thorough reform of the appeals process would free up as much money as abolishing the death penalty; expenses could be cut while capital punishment is retained.

Immediately following the execution of Bundy, Chief Justice william h. rehnquist called for changes in the procedure for appealing death sentences. Noting that the Supreme Court had turned down three emergency appeals by Bundy in the hours just prior to his execution, the chief justice said, "Surely it would be a bold person to say that this system could not be improved."

In a 1995 interview, President bill clinton, a staunch supporter of capital punishment, called the appeals process ridiculous and in need of reform. Clinton, like other supporters of the death penalty, saw appeals reform as paramount if capital punishment is to be efficiently and effectively carried out.

Supporters also argue that too many rights are provided to death row inmates. The appeals process is too kind to convicts, they argue, and ignores the pain that persists in the aftermath of the criminals' actions. Family members of victims of capital crimes are expected to wait years, while perpetrators abuse the system to forestall execution of the sentence imposed.

In addition to the president, the nation's highest court sides with those who support capital punishment. Under the leadership of Chief Justice Rehnquist, the Supreme Court has moved to limit the number of appeals a death row inmate may file, arguing that endless appeals serve only to undermine the ability of the state to carry out its constitutionally sanctioned punishment.

further readings

Gold, Russell. 2002. "Counties Struggle with High Cost of Prosecuting Death-Penalty Cases; Result is Often Higher Taxes, Less Spending on Services; 'Like Lightning Striking.'" The Wall Street Journal (January 9).

"Judge Changes Mind on Murder Case Costs." 2002. The New York Times (August 25).

Streib, Victor L. 2003. Death Penalty in a Nutshell. St. Paul, Minn.: Thomson/West.

cross-references

Cruel and Unusual Punishment; Due Process.

The fifth amendment seems to supply a clearer basis for assuming the constitutionality of the death penalty. This amendment states that no one shall be "deprived of life, liberty, or property, without due process of law." From this language, one can conclude that with due process of law, capital punishment may be imposed.

In Furman, the justices who found the death penalty to be unconstitutional pointed to the language of the Eighth Amendment as the basis of their decision. Chief Justice warren e. burger, who filed a dissenting opinion, relied heavily upon the language of the Fifth Amendment to support his argument that the death penalty was constitutional.

Evolving Standards of Decency

However, administration of capital punishment is not necessarily constitutional under all circumstances, against all classes of defendants, or for all types of crimes. The U.S. Supreme Court has recognized that what may have been constitutionally permissible when the Eighth Amendment was ratified in 1791 might be cruel and unusual now, if application of the death penalty in particular cases offends the "evolving standards of decency" test. Under this test, courts will examine prevailing opinions among state legislatures, sentencing juries, judges, scholars, the American public, and the international community to determine whether a particular application of the death penalty is cruel and unusual. For example, in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), the Court examined many of these factors and determined that there was no clear consensus against executing mentally retarded defendants who had been convicted of murder.

However, just 13 years later, the Court found that "standards of decency" had evolved to a point where mentally retarded defendants could no longer be made subject to capital punishment without violating the Cruel and Unusual Punishment Clause of the Eighth Amendment. atkins v. virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (U.S. 2002). The Court emphasized the fact that since Penry 18 states had passed legislation excluding the mentally retarded from the class of defendants who are eligible for capital punishment. Applying the same type of analysis in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15. But the Court did find sufficient proof of consensus against making rape defendants as a class that was eligible for capital punishment, stressing that only one jurisdiction in the country at the time of its decision allowed capital punishment for the rape of an adult woman. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (2002).

Death by electrocution has been challenged several times as being inconsistent with "evolving standards of decency". In a series of Florida cases, the U.S. Supreme Court denied certiorari in appeals where the petitioner offered proof that during the execution the electric chair was engulfed by flames and that smoke had emanated from the inmate's head. But the Florida Supreme Court ruled that death by electrocution does not violate the Eighth Amendment's prohibition of cruel and unusual, citing evidence that execution by electrocution renders an inmate instantaneously unconscious, thereby making it impossible to feel pain when the electrical current is properly maintained. Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999), cert denied, 528 U.S. 1182, 120 S. Ct. 1222, 145 L. Ed. 2d 1122 (2000).

Capital Punishment for DWI-Related Offenses

Many observers expected the "evolving standards of decency" test to be invoked by a North Carolina defendant when prosecutors sought to impose the death penalty for crimes he committed during a 1996 drunk-driving incident that left two college students dead. Thomas Richard Jones was charged and convicted on one count of driving while impaired, one count of assault with a deadly weapon, three counts of assault with a deadly weapon inflicting serious injury, and two counts of first-degree murder under the felony-murder rule. During the penalty phase, the jury rejected the prosecution's arguments for capital punishment, instead sentencing Jones to life in prison.

When Jones appealed his conviction, the North Carolina Supreme Court did not review his sentence under an Eighth Amendment analysis. Rather, the state's high court ruled that any sentence that Jones might have received for first-degree murder would not have been justified, because a first-degree murder charge can only be supported by proof that the defendant possessed a "specific intent" to commit the crime. At a minimum, the court said, proof of specific intent requires evidence that the defendant had "an actual intent to undertake the conduct resulting in death; thus, even if the killing itself was not intended, the actual intent to torture, poison, starve, or imprison the victim must be present … for the killing to qualify as first-degree murder." The North Carolina Supreme Court rejected the state's argument that specific intent could be "implied" from the defendant's reckless conduct. State v. Jones, 538 S.E. 2d 917 (N.C. 2000). No state court since State v. Jones has successfully prosecuted a defendant for first-degree murder arising out of a drunk-driving-related offense.

Racial Bias

In 1983, Professor David C. Baldus, of the University of Iowa College of Law, published a study on the capital punishment system in the state of Georgia. The figures he assembled showed that between 1973 and 1979, killers whose victims were white were 11 times more likely to be sentenced to death than were killers whose victims were black.

Baldus's study was used by death row inmate Warren McClesky in an appeal that came before the U.S. Supreme Court (McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262). Although the Court accepted the validity of the study, it found the statistics "insufficient to demonstrate unconstitutional discrimination" or "to show irrationality, arbitrariness, and capriciousness."

Other studies have yielded equally staggering numbers regarding the statistical differences between the system's treatment of blacks and whites. For example, between 1976 and 1995, a total of 245 convicts were executed; 84 percent of their victims were white, although fewer than 50 percent of all murder victims are white. Many critics argue that statistics demonstrating racial bias in the administration of capital punishment prove that the death penalty, even if constitutional in concept, is unconstitutional as applied in the United States—violating at least the equal protection clause of the fourteenth amendment.

Justice lewis f. powell jr., who voted with the majority in McClesky to deny a racial-bias challenge to the capital punishment system, later informed a biographer that he since had come to regret his vote.

Consideration of Mitigating Factors

In general, the jury may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence in determining whether capital punishment is the appropriate sentence for a particular defendant. However, the Eighth Amendment does not require courts to instruct a jury during the penalty phase that it has both an obligation and the authority to consider the mitigating factors deemed relevant by state law. Buchanan v. Angelone, 522 U.S. 269, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998). Instead, it is sufficient for a court to instruct the jury that it must impose a life sentence if, after considering "all the evidence," the jury does not believe that capital punishment is justified.

Once convicted and sentenced to death, death row inmates may again cite mitigating factors in making an appeal for leniency or clemency from the state's parole board or another executive branch department. Such appeals often cite mitigating factors that existed either before, after, or at the time the crime was committed. However, parole boards and related executive branch departments are under no obligation to give mitigating evidence any weight, and may typically reject a death row inmate's request for clemency without providing any reason for doing so.

For example, the Texas Parole Board was flooded with requests to grant clemency to Karla Faye Tucker, a death row inmate who had been convicted of brutally killing two people with a pickax during a 1983 robbery. Despite evidence that Tucker was 23 years old and high on drugs at the time of the crime, that she had been addicted to drugs since she was eight years old, and that she had been a prostitute since age 14, the sentencing jury found more compelling other evidence showing that Tucker had a history of violent behavior, that she had received sexual gratification every time she struck one of the victims with the pickax, that she had talked of killing two others to prevent them from telling police about the murders, and that she had planned future crime sprees to raid drug labs, kill the people who worked there, and steal their property.

During her 14 years on death row, however, Faye underwent a religious conversion to Christianity that many people believed was sincere. In fact, religious leaders from around the world, including Pope John Paul II, made personal appeals to have Tucker's sentence commuted to life in prison. The European Parliament and the united nations also publicly sought clemency for Tucker. The Karla Faye Tucker who was on death row, they all said, was not the same person who had committed the gruesome murders more than a decade earlier.

The Texas board of pardons & Paroles refused to stay the execution, finding that neither Tucker's gender nor her religious conversion were sufficient grounds to commute her sentence. "Mercy was already considered by the jurors when they sentenced her to die," the chairman of the pardons and parole board said. Then-Texas Governor george w. bush also rejected Tucker's requests for clemency. Tucker challenged the adequacy of the Texas executive-clemency procedures, but the Texas Court of Criminal Appeals concluded that "[a]n inmate has no constitutional or inherent right to commutation of her sentence." Ex parte Tucker, 973 S.W. 2d 950 (Tex. Crim. App. 1998). Clemency, the court wrote, is a matter that rests solely within the "unfettered discretion" of the executive branch of the state government. On February 3, 1998, Tucker became the first woman to be executed in Texas since the Civil War.

Deterrent Effect

Since the turn of the twentieth century, many studies have been conducted on the deterrent effect of capital punishment. More often than not, the results have proved inconclusive; no hard evidence exists to verify the theory that the threat of such a harsh punishment will sway criminals from their actions. In fact, some statistics indicate that the opposite is true; in some instances, states that employ capital punishment have a higher incidence of homicide than neighboring states that do not employ the death penalty.

The U.S. Supreme Court justices in the Furman case, both concurring and dissenting, often referred to studies that showed no conclusive correspondence between capital punishment and the frequency with which capital crimes were committed. A later accounting revealed that during the moratorium on capital punishment, from 1967 to 1976, the national homicide rate nearly doubled. Since then, depending on the study conducted, evidence has been presented to show that capital punishment has no deterrent effect; that the implementation of the death penalty is directly related to a decrease in capital crime; and that the implementation of the death penalty is directly related to an increase in capital crime.

Although some opponents of the death penalty are quick to argue that capital punishment has no deterrent effect, many supporters feel that the purpose of capital punishment is retribution, not deterrence. Many individuals, especially those with close ties to the victims, are more often concerned that the particular convicted criminal pay for the crime than that other persons be deterred through punishment of the perpetrator.

Morality and Emotion

Emotions might have played a part in the Furman decision. Burger, in his dissent, warned that the Court's "constitutional inquiry … must be divorced from personal feelings as to the morality and efficacy of the death penalty." Justice harry a. blackmun, who joined Burger in his dissent, later renounced his belief in the death penalty for reasons that another justice saw as partly personal.

In 1994, in Callins v. Collins, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435, Blackmun wrote a dissenting opinion in which he condemned the practice of capital punishment in the United States. He argued that "no combination of procedural rules or substantive regulations ever [could] save the death penalty from its inherent constitutional deficiencies"—"arbitrariness, discrimination, caprice, and mistake." Justice antonin scalia criticized Blackmun's position, writing that Blackmun had based his dissent on intellectual, moral, and personal reasons, rather than on the authority of the Constitution.

Other Issues

Other controversial aspects of capital punishment disturb the public. Between 1976, when the moratorium on capital punishment was lifted, and 1995,

  • More than 50 mentally ill or mentally impaired individuals were put to death
  • Nine juveniles were executed
  • The cost of executing a death row inmate was three to six times as high as incarcerating him or her for life without parole.

Despite the controversy, the constitutionality of capital punishment has been upheld and continues to be an acceptable practice in thirty-eight states, where nearly 3,500 inmates waited on death row throughout the United States by the end of 2001.

further readings

Banner, Stuart. 2002. The Death Penalty: An American History. Cambridge, Mass.: Harvard Univ. Press.

Bedau, Hugo Adam, and Paul G. Cassell, eds. 2004. Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford Univ. Press.

Bigel, Alan I. 1994. "Symposium on Capital Punishment—Justices William J. Brennan, Jr., and Thurgood Marshall on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court." Notre Dame Journal of Law, Ethics, and Public Policy (Thomas J. White Center on Law and Government).

Foley, Michael A. 2003. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. Westport, Conn.: Praeger.

Rodriguez, Roxanne. 2001. The Modern Death Penalty: A Legal Research Guide. Buffalo, N.Y.: W.S. Hein.

Von Drehle, David. 1995. Among the Lowest of the Dead: The Culture of Death Row. New York: Times Books.

cross-references

Witherspoon v. Illinois.

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Capital Punishment

Capital Punishment

Penal practice in premodern Europe

The abolition movement

Effectiveness of capital punishment

BIBLIOGRAPHY

Capital punishment means the officially authorized execution of the death penalty on persons determined by appropriate legal procedures to have committed a criminal offense. So defined, capital punishment is presently a prominent feature of the administration of criminal justice in many nations of the world and has typically, although not invariably, characterized the criminal law since the beginnings of recorded history.

This definition of capital punishment, while serving most utilitarian purposes, emphasizes the difficulties of tracing its origins in primitive society. Capital punishment, as it emerges in civilized communities, presupposes a system of criminal law predicated on the assumption that certain harms committed by one individual upon another represent injuries to the interests of the corporate society and, hence, are punishable by the society. Evidence suggests that among the primitive societies of western Europe such a conception of the criminal law was slow in developing. Even more slow to develop were the modern distinctions between the idea of crime and of private harms encompassed in the law of torts. In general, social control of private wrongdoing was principally concerned with the avoidance or regulation of private warfare rather than with the direct imposition of penalties by the organized community upon the offender. Accordingly, retribution for serious wrongs, such as homicide and major offenses against property, was left largely to the injured party or his family—subject, however, to elaborate social regulations of the manner and quantum of retribution that might be exacted. Typically, retribution was regulated by composition, wherein the injured party or his clan exacted compensation for the injury from the offender or his clansmen according to stipulated procedures. Thus, in England as late as the Norman Conquest, homicide could be composed by payment of the dead man’s wergild. If the wergild was not paid, the obligation to avenge the death rested on the injured family, not the state.

This, of course, is not to say that primitive society reveals no instances of the infliction of death upon its members by the direct authority of the organized community. Many such instances, however, cannot confidently be represented as examples of capital punishment as that term is currently understood, but appear more closely related to primitive religious belief and ritual. It has been suggested that the authorization of the death penalty in some early legal codes reflects the substance and forms of earlier religious practices relating to human sacrifice and the infliction of death on persons deemed guilty of sacrilege (Bonner & Smith 1930−1938).

Ancient legal codes. The antiquity of capital punishment is clearly revealed, however, in provisions of the earliest written legal codes. Thus the Code of Hammurabi (c. 1750 b.c.) applied the death penalty to some 25 offenses, such as corruption in government service, theft, and various sexual offenses. The omission of murder is probably to be explained by the persistence of the blood feud in cases of homicide. Not only did the code authorize the penalty of death but in some cases it specified the mode of execution: drowning, burning, or impaling. In the Assyrian laws (c. 1500 b.c.) death was a specified penalty, but mutilation appears to have been the more common penalty. Both the Hittite Code, dating from the mid-fourteenth century before Christ, and the Covenant Code of the Hebrews specified the death penalty for a variety of offenses. The early Greek law reveals a strong tradition of self-help on the part of clan and tribal groups. The earliest written codes, however, authorize the death penalty for numerous offenses, many of them of a religious character; and capital punishment became an established feature of Greek law in the period of its maturity.

In Rome the first capital offenses to gain recognition appear to have been treason and murder, the latter representing an effort on the part of the community to suppress the blood feud. The Twelve Tables, enacted in the fifth century before Christ, contain provisions authorizing the death penalty for such offenses as libel, arson, bearing false witness, and certain forms of bribery. During the republic the penalty of death, although authorized in the written laws, seems rarely to have been imposed upon citizens. Execution of slaves, however, was a much more frequent occurrence. In the first two centuries after Christ, capital punishment appears to have been more frequently imposed for political crimes and for other offenses committed by members of the lower classes. During the last stages of the empire, when Christianity became the state religion, heretics were frequently condemned and executed, and the criminal law was generally expanded into the area of what had previously been regarded as private delicts. The Code of Theodosius (a.d. 438) specifies over eighty crimes punishable by death.

Penal practice in premodern Europe

From the fall of Rome until the beginnings of the modern era, capital punishment was widely practiced throughout western Europe. An astonishing variety of methods to produce death were employed. In English history the methods of greatest importance were burning, beheading, and hanging, sometimes accompanied by such refinements as drawing and quartering. One reason for the widespread use of capital punishment in preindustrial societies was the apparent lack of feasible alternative methods to deal with serious criminality. A system of long-term imprisonment, for example, requires outlays of resources that an impoverished society is unable or unwilling to make. Nevertheless, the history of capital punishment suggests that in any society certain countervailing tendencies based upon practical and humanitarian considerations are likely to develop and to limit the imposition of the death penalty. In the Middle Ages, for example, mutilation of the offender was frequently employed as an alternative to capital punishment. This phenomenon can be observed in the laws of William the Conqueror, in which mutilation rather than death was prescribed for most serious crimes. Although mutilation was conceived as a mitigation of punishment, its use was attended by serious social disadvantages. Thus, the loss of hands, eyes, or tongue often prevented the offender from resuming productive occupations; and the stigma and disabilities produced by mutilation tended to encourage the commission of new crimes by those upon whom it was practiced.

The seventeenth and eighteenth centuries

Although penal practice in the Middle Ages was often savage and unrestrained, it appears clear that the most extensive use of capital punishment occurred in western Europe during the period marked by the onset of the industrial revolution. Sir William Blackstone, writing in the middle of the eighteenth century, estimated that 160 crimes were punishable by death in England. A half-century later probably as many as one hundred additional offenses had been added to the list. Some historians have calculated the number at an even higher figure. This increase in the number of offenses punishable by death may not provide a wholly accurate index of the increases in the execution of the death penalty. It fails, for example, to take into account the numbers of convicted English felons transported during these years to America and later to Australia. Nevertheless, there have been few periods in the history of Western civilization when penal policy placed so great a reliance on capital punishment.

The reason for the increased resort to capital punishment in the seventeenth and eighteenth centuries are no doubt many and varied. Two, however, are of prime importance. First, the industrial and agricultural revolutions produced social dislocation and unrest and resulted in real and apparent increases in serious criminality. The Draconian penalties of this era represent the response of the propertied classes to these developments. Second, despite the rise in importance of overseas transportation of felons in some European countries, such as England, penal policy during the period was marked by a dearth of acceptable secondary punishments capable of being employed as alternatives to the death penalty. Long-term penal incarceration is for the most part a development of the nineteenth century.

The abolition movement

The eighteenth century, which accorded capital punishment the position of dominance in the penal policy of western Europe, also produced the beginnings of the movement to abolish it or greatly to restrict its use. The unsatisfactory state of the criminal law, the use of torture, the widespread use of capital punishment, and other brutal and degrading penalties received the critical attention of writers of the Enlightenment. These abuses were effectively satirized by Montesquieu in his Lettres persanes, 1721. Even more explicit denunciations were launched by Voltaire. But the most important work of the period was An Essay on Crimes and Punishments (1764), written by the youthful Cesare Bonesana, marquis of Beccaria (1738−1794). Beccaria was the first writer to urge the complete abolition of capital punishment, and his is perhaps the most influential volume on the reform of criminal justice ever published.

The impact of Beccaria’s work was immediate and profound. Its influence was felt in England, where the work of law reform was undertaken by a remarkable group of men, the most prominent of whom was Jeremy Bentham (1748−1832). Many of Bentham’s proposals were introduced in Parliament by Sir Samuel Romilly (1757−1818), who became the most distinguished legislative advocate of the restriction of capital punishment in English history. Although he did not live to see a substantial reduction in the number of crimes punished by death, which was his great objective, his work and that of Bentham prepared the way for the reforms achieved in Parliament in the next generation. The effectiveness of these efforts is demonstated by the fact that, whereas at the beginning of the nineteenth century well over two hundred offenses were punishable by death in England, by 1861 the number had been reduced to four.

The movement to restrict or abolish the death penalty, launched in the eighteenth-century Enlightenment, exerted important influence throughout the civilized world, and that influence persists to the present day. The reasons for these developments are many. First, the abolition movement was consistent with nineteenth-century humanitarian sentiment and, indeed, represented one of its most important expressions. Second, limiting or abolishing capital punishment became one of the important political objectives of the popular governments that came to power during the course of the century. Third, the rise of long-term penal incarceration throughout the civilized world, although it produced a plethora of new problems, provided a feasible alternative to the death penalty. Finally, a widespread conviction developed that a penal policy founded on extensive and indiscriminate use of capital punishment not only failed to achieve a reduction of serious criminality but in some respects rendered law enforcement less effective.

The United States

Capital punishment was brought to North America by the colonizing powers. In the American colonies legislation characteristically applied the death penalty to a long list of offenses, and in most colonies executions were frequently carried out. In the years following the American Revolution the number of offenses punishable by death declined. One manifestation of this tendency was the Pennsylvania statute of 1794, which for the first time divided murder into degrees and authorized capital punishment only for first-degree murder. Similar legislation has been enacted in most American states.

There has been agitation for the abolition of capital punishment in the United States for more than a century and a quarter. The first state to abolish the death penalty (except in cases of treason) was Michigan in 1847. Other states that have abolished the death penalty in all, or virtually all, cases include Rhode Island (1852), Wisconsin (1853), Maine (1876, 1887), Minnesota (1911), North Dakota (1915), Alaska (1957), Hawaii (1957), Oregon (1964), Iowa (1965), Vermont (1965), West Virginia (1965), and New York (1965). Both Puerto Rico and the Virgin Islands have also abandoned capital punishment. A number of states, including Kansas, South Dakota, and Delaware, at one time abolished the penalty and later restored it. The federal government applies the death penalty to a variety of offenses.

In the considerable majority of American states that have retained the death penalty, there is some diversity in the offenses to which it is applied. Capital punishment is most commonly applied to murder and treason, but no executions under state authority have occurred for the latter offense in the modern period. Other offenses to which the death penalty has been attached by some American jurisdictions include forcible rape, kidnaping, armed robbery, certain narcotics crimes, and (in the case of the federal government) espionage and theft of military secrets.

In spite of the only moderate success of the American abolition movement, the actual execution of the death penalty has declined precipitously for more than a generation and a half. Thus, between 1930 and 1964, 3,849 persons were executed under civil authority in the United States (U.S. Bureau of Prisons 1964). The nature of the decline is revealed by the fact that in 1930, 155 persons were executed, whereas in 1964 the figure was only 15. Considerable regional variations may be observed in the number of executions. In the years 1950–1954, 27 persons were put to death in the populous state of New York, while 72 persons were executed during the same period in Georgia. No executions occurred in the 1950s and 1960s in the states of Massachusetts, South Dakota, Delaware, Montana, and Wyoming.

World-wide trends

In the mid-1960s a majority of the nations of the world retained the death penalty for certain categories of offenses. Capital punishment is recognized in Australia (except in Queensland), in Africa, and in most Asiatic nations. In Europe the death penalty is applied in the countries of eastern Europe and the Balkans, but it has been substantially abolished in all of the nations of western Europe except France, Greece, and Spain. In Britain the abolition movement came to fruition when, in 1965, the House of Commons approved a bill providing for the elimination of the death penalty in murder cases during a five-year trial period. The act would lapse after July 31, 1970, unless its life were extended by resolutions of both houses of the Parliament. In Latin America capital punishment has been abolished in Argentina, Brazil, Colombia, Costa Rica, the Dominican Republic, Mexico (under the federal law and in all but four of the states), Panama, Uruguay, and Venezuela. It is retained in Canada. A report submitted to the United Nations in 1962 clearly revealed a world-wide tendency toward a considerable reduction of the number and categories of offenses for which capital punishment may be imposed (United Nations 1962).

Effectiveness of capital punishment

In the controversy over capital punishment that has persisted throughout the civilized world since the eighteenth century, the arguments have generally been of two sorts. The first are assertions based upon conflicting versions of moral, religious, and humanitarian imperatives; and the second may be described as utilitarian arguments advanced to demonstrate social gains or losses deriving from a system of capital punishment.

Of all the utilitarian arguments, the ones advanced most frequently are those relating to the deterrent consequences of the death penalty. It should be observed that the crucial issue is not whether any deterrent potential can fairly be ascribed to the death penalty, but whether capital punishment possesses a deterrent efficacy lacking in other less drastic, nonlethal sanctions available to the state when performing its obligations of public order. Typically, those arguing for the retention of capital punishment have not attempted to establish its unique deterrent efficacy by empirical demonstration but have relied primarily on expressions of opinion by experienced police and prosecuting officials.

The abolitionists, on the other hand, have produced a large array of studies designed to test the deterrent consequences of the death penalty. These studies have taken a variety of forms: comparisons of homicide rates in countries or American states that have abolished the death penalty and those that have retained it; comparisons of homicide rates in jurisdictions before and after abolition; broader studies of general crime rates in abolition and death-penalty jurisdictions (Sellin 1959, pp. 19−52). These and similar studies have in general failed to identify any meaningful correlation between the presence of the death penalty and rates of serious criminality. Although abolitionists have sometimes claimed more of these studies than their significance warrants, the temperate observation of the Royal Commission on Capital Punishment seems clearly justified: “[T]here is no clear evidence of any lasting increase [in the murder rate following abolition] and there are many offenders on whom the deterrent effect is limited and may often be negligible” (Great Britain 1953, p. 274).

Another aspect of the deterrence argument has sometimes been slighted. Even if it be supposed that there are some conceivable circumstances in which the death penalty might enhance the deterrent consequences of the criminal law, the more important question is whether, under the circumstances actually surrounding the administration of justice, these effects can sensibly be anticipated. It may be assumed that realization of any unique deterrent gains from capital punishment would require that certain conditions be satisfied. These include reasonable certainty in the detection and apprehension of offenders, reasonable speed and certainty of conviction, and reasonable speed and certainty in the execution of the death penalty once it is imposed. In the United States, at least, none of these conditions is fulfilled at present or is likely to be in the years ahead.

Although arguments centering on deterrence have dominated discussion of capital punishment, many other issues have been canvassed. Abolitionists have frequently pointed to the irrevocable nature of the death penalty, which prevents the state from rectifying miscarriages of justice in cases of conviction of the innocent. Retentionists, on the other hand, have urged that the death penalty is essential to the safety of police officers; and murder of policemen was retained as a capital offense in the New York act of 1965, which generally abolished capital punishment in that state. A recent study conducted in the United States, however, indicates no correlation between the murder of policemen and the presence of the death penalty (Sellin 1959, pp. 52−57).

In most modern jurisdictions the imposition of the death penalty is discretionary rather than mandatory. There are no reliable data on the percentage of persons sentenced to death among those convicted of offenses for which capital punishment might be imposed. It is clear, however, that the percentage is very small. Furthermore, there is reason to believe that selection of persons for execution often proceeds on the basis of inadequate or improper criteria. The poverty of the offender and the consequent inadequacies of his legal defense appear to be important factors in an indeterminate number of cases. That the race of the offender has also played a role is at least suggested by the fact that 54.7 per cent of all offenders executed in the United States in the years 1930−1964 were nonwhite (U.S. Bureau of Prisons 1964). Other consequences of capital punishment on the administration of justice also merit concern; for example, the distorting effects of capital punishment on the development of the substantive criminal law have frequently been noted. In the Anglo–American world the result has been a legacy of legal rules intelligible only as devices to mitigate the severity of penalties. The rules so developed, however, cannot always be restricted in their application to capital cases, and the consequence is the introduction of anomalies and irrationalities in the development of legal principle.

It is clear that throughout the world the consensus of opinion among those professionally concerned with the treatment of offenders is strongly in favor of abolition of the death penalty. Study of the administration of capital punishment and its consequences has left more careful students skeptical of the claims of social advantage made in its behalf. Moreover, the death penalty is clearly at war with the principle of rehabilitation of offenders that has come to dominate modern correctional thought. Although capital punishment is an ancient and hardy institution, the trend toward reduction of its scope and application may be expected to continue.

Francis A. Allen

[Directly related are the entriesCriminal law; Penology. Other relevant material may be found inCrime, article onHomicide; Criminology; Punishment; and in the biography ofBeccaria.]

BIBLIOGRAPHY

Allen, Francis A. 1964 The Borderland of Criminal Justice: Essays in Law and Criminology. Univ. of Chicago Press.

Beccaria, Cesare Bonesana (1764) 1953 An Essay on Crimes and Punishments. Stanford, Calif. Academic Reprints. → First published in Italian as Dei delitti e delle pene. A paperback edition was published in 1963 by Bobbs-Merrill.

Bedau, Hugo A. (editor) 1964 The Death Penalty in America: An Anthology. Chicago: Aldine.

Bonner, Robert J.; and Smith, Gertrude 1930−1938 The Administration of Justice From Homer to Aristotle. 2 vols. Univ. of Chicago Press.

Calvert, Eric R. (1927) 1936 Capital Punishment in the Twentieth Century. 5th ed., rev. London: Putnam.

Ceylon, Commission of Inquiry on Capital Punishment 1959 Report. Colombo: Government Publications Bureau.

Great Britain, Royal Commission on Capital Punishment, 1949−1953 1953 Report. Papers by Command, Cmd. 8932. London: H.M. Stationery Office.

Hart, Herbert L. A. 1957 Murder and the Principles of Punishment: England and the United States. Northwestern University Law Review 52:433−461.

Jolowicz, Herbert F. (1932) 1961 Historical Introduction to the Study of Roman Law. 2d ed. Cambridge Univ. Press.

Koestler, Arthur 1957 Reflections on Hanging. New York: Macmillan.

Maitland, Frederic W.; and Montague, Francis C. (1894−1898) 1915 A Sketch of English Legal History. New York: Putnam.

Muirhead, James (1886) 1916 Historical Introduction to the Private Law of Rome. 3d ed., rev. & enl. London: Black.

Phillipson, Goleman 1923 Three Criminal Law Reformers: Beccaria, Bentham, Romilly. London: Dent.

Radzinowicz, Leon 1948 A History of English Criminal Law and Its Administration From1750. Volume 1: The Movement for Reform. London: Stevens.

Sellin, Thorsten 1959 The Death Penalty: A Report for the Model Penal Code Project of the American Law Institute. Philadelphia: American Law Institute.

Smith, John M. P. (1931) 1960 The Origin and History of Hebrew Law. Univ. of Chicago Press.

Stephen, James F. 1883 A History of the Criminal Law of England. 3 vols. London: Macmillan.

United Nations, Department of Economic and Social Affairs 1962 Capital Punishment. New York: United Nations.

U.S. Bureau of Prisons 1964 Executions: 1930−1963. U.S. Bureau of Prisons, National Prisoner Statistics, No. 34. Washington: The Bureau.

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Capital Punishment

Capital Punishment

The death penalty, the most severe sanction or punishment a government entity can impose on an individual for a crime, has existed in some form throughout recorded history. The first known official codification of the death penalty was in eighteenth century B.C.E. in the Code of King Hammurabi of Babylon, where twenty-five crimes could result in the ultimate sanction by the state. From then until the twenty-first century the variants of capital punishment throughout the world have included crucifixion, drowning, beating to death, stoning, burning alive, impalement, hanging, firing squads, electrocution, and lethal injection. The death penalty has been abolished in Western Europe and Japan, but its persistence in the United States has incited heated debate over its efficacy and inherent justness.

The Purposes and Effectiveness of Capital Punishment

The major rationalizations for capital punishment are retribution, deterrence, incapacitation, and rehabilitation. Obviously, the last bears no relation to the death penalty. Retribution, which argues that the state has the right to impose a level of pain and punishment equal to or greater than the pain suffered by the victim, seeks to justify the death penalty on principle rather than efficacy in reducing crime. The notion of deterrence does make this claim imply a utilitarian purpose. There are two forms of deterrence: general and specific. The latter focuses on the individual offender, who, it is claimed, is deterred from committing future crimes by punishing him/her for previous criminal activity. The former seeks to prevent such crimes from occurring in the first place. In the case of the death penalty, the well-publicized knowledge that the state punishes some crimes by death presumably deters potential criminals. Many criminologists argue that the goal of incapacitationremoving an offender from societycan be achieved equally effectively through a life sentence without the possibility of parole (LWOP).

The results of the more than 200 studies done on capital punishment are either inconclusive or adverse to the claim that it is an effective deterrent to murder. The typical research design compares murder rates in state that have and use the death penalty with (1) those that either have not used it, although the law permits its use and (2) states that have abolished it. In general, these studies tend to show no difference in homicide rates for comparable states that with and without capital punishment. Nor is there evidence that homicide rates decline or increase as states decide to reinstate or abolish the death penalty.

Why has the death penalty been an ineffective deterrent in the United States? First, capital punishment is applied with neither certainty nor swiftness, the two key characteristics of an effective deterrent. When the death penalty is imposed, it often takes many years for the sentence to be carried out, and in some cases the sentence is not upheld. In the United States in 1999, 271 prisoners were admitted to death row, while more than 15,000 murders were reported to police. In the same year, 88 persons had their sentences overturned.

The idea of deterrence presupposes rationality and premeditation on the part of the murderer. In most murders, such factors take a backseat to nonrational influences such as rage, alcohol or drug abuse, or psychological disorder, none of which are susceptible of deterrence by death sentence. For these reasons, the most persistent and persuasive arguments for the death penalty rely on notions of just retribution and revenge by the state on behalf of the citizenry.

Opponents of the death penalty point not only to its lack of deterrent effect but also raise other key arguments. First, from a moral perspective, the abolitionists believe state executions signal that violence is an acceptable means of resolving conflicts and thus actually contribute to a climate of increased violence. Second, opponents point to the unfair and discriminatory application of the death penalty, noting the disproportionate numbers of poor people and people of color on death row, many of them having lacked vigorous and effective legal counsel. Moreover, advances in DNA analysis have exonerated enough prisoners on death row to give pause to many lawmakers who point to the ever-present possibility that the state might, for lack of adequate probative or exculpatory evidence, take the life of an innocent person. This concern has led to several U.S. states to implement a moratorium on the death penalty until it can be shown to be applied fairly to all such cases.

International Trends

Comprehensive data on the use of the death penalty for all countries is difficult to collect and verify. Most of the data presented here come from two organizations opposed to capital punishment: Amnesty International and the Death Penalty Information Center. Yet the trend is clear; more and more countries are either abolishing or placing further restrictions and limitations on capital punishment.

As of 2001, 108 countries have abolished the death penalty in law or in practice, up from 62 in 1980. Of that 108, 75 have abolished it for all crimes while another thirteen have done so for "ordinary crimes." Another 20 have the authority to carry out this sanction but have not done so. Of those that have retained its use, the death penalty is used with regularity in the Islamic nations, in most of Asia, many parts of Africa, and the United States. The United States, Kyrgyzstan (the former Soviet republic), and Japan are believed to be the only other countries where the mentally retarded are put to death.

By far, the world's leader in the use of the death penalty is China. In 1998 China reported more than 1,000 executions, which represented two-thirds of all executions worldwide (see Table 1). The other leading counties were the Congo, the United States, Iran, and Egypt. These

Number of executions worldwide, 1998
Country Number Percent
China 1,067 65.7%
Congo (DR) 100 6.2%
USA 68 4.2%
Iran 66 4.1%
Egypt 48 3.0%
Belarus 33 2.0%
Taiwan 32 2.0%
Saudi Arabia 29 1.8%
Singapore 28 1.7%
Sierra Leone 24 1.5%
Rwanda 24 1.5%
Vietnam 18 1.1%
Yemen 17 1.0%
Afghanistan 10 0.6%
Jordan 9 0.6%
Kuwait 6 0.4%
Japan 6 0.4%
Nigeria 6 0.4%
Oman 6 0.4%
Cuba 5 0.3%
Kirgyzstan 4 0.2%
Pakistan 4 0.2%
Zimbabwe 2 0.1%
Palestinian Authority 2 0.1%
Lebanon 2 0.1%
Bahamas 2 0.1%
All others 7 0.4%
Total 1,625 100.0%
SOURCE: Death Penalty Information Center, Washington, DC.
Available from www.deathpenaltyinfo.org.

five countries accounted for more than 80 percent of all executions.

The use of executions in China is even greater than these numbers would suggest. According to Amnesty International, from 1990 to 2000, China has executed 19,446 people, which compares to the 563 the United States put to death over the same period. In 1996 alone, more than 4,000 persons were put to death by China as part of its "strike hard" campaign against crime. This policy results in mass application of the death penalty for persons convicted of both crimes of violence and property crimes. For example, on June 30, 2001, four tax cheats were executed for bilking the government out of nearly $10 million in tax rebates.

The divergence between the United States and Europe on this issue is quite striking. Prior to the 1970s, capital punishment was common in both the United States and Europe, while declining throughout the West after World War II. During the 1970s, however, the death penalty disappeared from Western Europe and it was repealed in Eastern Europe in the postcommunist regimes that emerged beginning in the late 1980s. For example, from 1987 to 1992, East Germany, Czechoslovakia, Hungary, and Romania eradicated the death penalty, and all twelve of the Central European nations that retained the death penalty during the Soviet era have since abolished it. The Ukraine abolished its death penalty in 2000, and Russia suspended executions in mid-1999.

U.S. Trends

The death penalty has been a controversial part of the U.S. social and legal orders since the country's founding in the late eighteenth century. Initially persons were regularly put to death by the state for a wide array of criminal acts that included murder, witchcraft, and even adultery. And up until the 1830s, most executions were held in public. Public executions continued until 1936, when 20,000 citizens observed a public execution in Owensboro, Kentucky.

Prior to the 1960s, executions were relatively frequent in the United States, averaging about 100 per year during the early postwar period and slowly dwindling to fewer than ten per year in the mid-1960s. In 1967, executions were suspended by the U.S. Supreme Court in a series of landmark decisions that, among other things, found the application of the death penalty to be "arbitrary and capricious" and inhumane. Shortly thereafter, states reformed their death penalty statutes to meet the concerns of the Court. Subsequent Court rulings

Percent distribution of executions in the United States by region, five-year intervals
Year Northeast North Central West South Total
  % % % % #   %
19501954 14 10 16 60 407 100%
19551959 17 5 17 61 301 100%
19601964 9 9 25 57 180 100%
19801984 3 97 29 100%
19851989 2 6 92 88 100%
19901994 10 8 82 139 100%
19951999 1 14 9 76 341 100%
SOURCE: Death Penalty Information Center, Washington, DC. Available from www.deathpenaltyinfo.org; Zimring, Franklin E., and Gordon Hawkins. Capital Punishment and the American Agenda. Cambridge: Cambridge University Press, 1986.

in 1976Gregg v. Georgia, Proffit v. Florida, and Jurek v. Texas allowed the resumption of capital punishment. As shown in Figure 1, executions resumed shortly thereafter. By the late 1990s the totals were close to those of the early 1950s.

In 2001 there were approximately 3,500 prisoners under the sentence of death in the United States. Of this number, 55 percent were white and 43 percent were black. All have been convicted of murder; 2 percent received the death sentence as juveniles. Fifty women were on death row as of 2001. Fifteen states, along with the federal government, ban the execution of prisoners who are mentally retarded, but twenty-three do not. The most common form of execution is now lethal injection, which is used in thirty-four states.

The Death Penalty by Geography

Although the federal courts have played a significant role in death penalty reforms, it is also true that until the 2001 execution of Timothy McVeigh, death sentences and executions since Gregg v. Georgia have been solely carried out by state courts. Moreover, there is considerable variation among the states in the use of the death penalty that seems to have little to do with crime rates.

As of 2000, thirty-eight states had death penalty statutes, although only twenty-nine actually executed prisoners; of those, only a handful account for most of the executions. According to the Bureau of Justice Statistics, as of 1999, there had been 4,457 persons executed since 1930. States that have conducted the most frequent number tend to be southern states, led by Texas (496) and Georgia (389).

Conversely, Michigan was the first state to abolish the death penalty for all crimes except treason, more than a century before France and England enacted such a reform. Seven states that provide a death sentence in their statutes have not conducted any executions for more than twenty-five years. South Dakota and New Hampshire have not had executions in more than half a century. New Jersey legislated a death penalty statute in 1980 but has not applied it thus far.

As shown in Table 2, the southern states have consistently and increasingly accounted for the vast majority of U.S. executions since the 1950s. In 2000 seventy-six of the eighty-five U.S. executions were in the South, even though that region accounts for about one-third of the population and about 40 percent of the American states that authorize a death penalty. Two-thirds of all American executions in 2000 were conducted in three of the thirty-eight states that authorize executions (Texas, Oklahoma, and Virginia).

The Issue of Race and Class

A major topic revolving around the death penalty is the extent of racial and class bias in its implementation. As noted above, only very few persons convicted of murder actually receive the death penalty. This raises the important question of how decisions are reached by prosecutors to pursue punishment by death penalty. According to a recent U.S. Department of Justice study, in nearly 80 percent of the cases in which the prosecutor sought the death penalty, the defendant was a member of a minority group, and nearly 40 percent of the death penalty cases originate in nine of the states. Another study found that the race of the victim and the race of the offender were associated with death penalty sentences.

See also: Death System; Homicide, Epidemiology of;

Bibliography

Baldus, David, Charles Pulaski, and George Woodworth. "Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience." Journal of Criminal Law and Criminology 74 (1983):661685.

Bohm, Robert M. "Capital Punishment in Two Judicial Circuits in Georgia." Law and Human Behavior 18 (1994):335.

Clear, Todd R., and George F. Cole. American Corrections, 5th edition. Palo Alto, CA: Wadsworth, 2000.

U.S. Department of Justice. Bureau of Justice Assistance. Capital Punishment 1999. Washington, DC: U.S. Government Printing Office, 2000.

U.S. Department of Justice. Federal Bureau of Investigation. Uniform Crime Reports, 1999. Washington, DC: U.S. Department of Justice, 2000.

JAMES AUSTIN

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AUSTIN, JAMES. "Capital Punishment." Macmillan Encyclopedia of Death and Dying. 2003. Encyclopedia.com. 1 Jul. 2016 <http://www.encyclopedia.com>.

AUSTIN, JAMES. "Capital Punishment." Macmillan Encyclopedia of Death and Dying. 2003. Encyclopedia.com. (July 1, 2016). http://www.encyclopedia.com/doc/1G2-3407200046.html

AUSTIN, JAMES. "Capital Punishment." Macmillan Encyclopedia of Death and Dying. 2003. Retrieved July 01, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3407200046.html

Capital Punishment

CAPITAL PUNISHMENT

CAPITAL PUNISHMENT. The history of capital punishment in the United States provides a means of understanding the dynamics of change and continuity. Changes in the arguments for and against capital punishment are indicative of larger developments regarding the saving and taking of human life by the state. The death penalty, optional or mandatory, is invoked for "capital crime," but no universal definition of that term exists. Usually capital crimes are considered to be treason or terrorist attacks against the government, crimes against property when life is threatened, and crimes against a person that may include murder, assault, and robbery. Criminal law is complex and involves many legal jurisdictions and social values. The existing statutory law and the circumstances of any case can mitigate the use of capital punishment. The power of a jury to decide for or against capital punishment is the dynamic element in its history.

Arguments for and Against Capital Punishment

The arguments for the death penalty and for its abolition have remained fairly constant since the seventeenth century. Advocates for the death penalty claim that the practice is justified for several reasons: retribution, social protection against dangerous people, and deterrence. Abolitionists' response is that the practice is not a deterrent; states without the practice have the same murder rates over time as those with the law. Moreover, the imposition of the death penalty comes from many factors, resulting from cultural and social circumstances that might have demonstrated irrationality and fear on society's part. The result might be a miscarriage of justice, the death of an innocent person.

Religious groups have put forth several arguments regarding capital punishment. One argument states that perfect justice is not humanly possible. In the past God or his representatives had authority over life and death, but the people or their representatives (the state and the criminal justice system) have become God in that respect, an act of tragic hubris.

A secular argument against capital punishment is that historically the verdict for capital punishment has been rendered most frequently against the poor and against certain ethnic groups as a means of social control. Another argument claims that the death penalty is just an uncivilized activity.

The discovery of DNA provides an argument against capital punishment by stressing that the absence of a positive reading challenges other physical evidence that might indicate guilt. The finality of judgment that capital punishment serves is thus greatly limited. The fullest legal and judicial consequences are still evolving in American jurisprudence.

While these arguments whirl around the academy, the legal system, and public discourse, one method of understanding the issue is to examine its historical nature. Western societies in the seventeenth century slowly began replacing public executions, usually hangings, with private punishment. The process was slow because the number of capital crimes was great. By the nineteenth century, solitary confinement in penitentiaries (or reformatories) was the norm, with the death penalty reserved for first-degree murder.

History of Capital Punishment

Initially moral instruction of the populace was the purpose of public execution. As juries began to consider the causes of crime, the trend toward private execution emerged. In both cases the elemental desire for some sort of retribution guided juries' decisions.

Generally English law provided the definition of capital offenses in the colonies. The numbers of offenses were great but mitigating circumstances often limited the executions. The first execution of record took place in Virginia in 1608. The felon was George Kendall, who was hanged for aiding the Spanish, a treasonable act. Hanging was the standard method, but slaves and Indians were often burned at the stake.

Both the state and the church favored public executions in Puritan New England. Sermons touted the importance of capital punishment to maintain good civil order and prepare the condemned to meet his maker. He was a "spectacle to the world, a warning to the vicious." Over time the event became entertainment and an occasion for a good time; much later vicious vigilante lynchings served a similar purpose. Order had to be maintained.

The American Revolution sparked an interest in re-form of the death penalty as appeals for justice and equity became public issues. William Penn and Thomas Jefferson were early critics of capital punishment. The rebellion against Great Britain was more than a mere "political" event. Encouraged by Montesquieu's writings, Cesare Beccaria's Essay on Crime and Punishment (1764), and others, philosophers began the ideological critique of capital punishment. Benjamin Rush's Enquiry into the Effects of Public Punishments upon Criminals and upon Society (1787) was a pioneer effort toward reforming the method of executions.

For a time, events moved quickly in the young republic. Pennsylvania established the world's first penitentiary in 1790 and the first private execution in 1834. The adoption of the Bill of Rights in 1791 set the stage for the interpretative struggle over "cruel and unusual punishment [being] inflicted." John O'Sullivan's Report in Favor of the Abolition of the Punishment of Death by Law (1841) and Lydia Maria Child's Letters From New York (1845) were important items in antebellum reform. In 1847 Michigan abolished capital punishment. But the Civil War and Reconstruction pushed the issue off the national agenda for several years.

The Supreme Court

In 1879, the Supreme Court upheld death by firing squad as constitutional in Wilkerson v. Utah. By the end of the twentieth century Utah was the only state using that method. In 1890 in re Kemmler, the Supreme Court ruled death by electric chair to be constitutional. In a sense this case validated the use of private executions over public hangings. Enamored with the wonders of electricity, Gilded Age reformers believed this method was more humane. In 1947, the Supreme Court ruled in Louisiana ex rel. Francis v. Resweber that a second attempt at execution, after a technical failure on the first try, did not constitute cruel and unusual punishment. On humanitarian grounds, in 1921 Nevada passed the "Humane Death Bill" permitting the use of the gas chamber. The Supreme Court approved the bill and invoked Kemmler when Gee Jon appealed it. Jon then became the first person to die in the gas chamber on 8 February 1924.

With the rise of twentieth-century communications and the civil rights movement, public opinion slowly become more critical of execution. In a multitude of cases the issue was debated on two fronts: cruel and unusual punishment and the standard of due process and equity as stated in the Fourteenth Amendment. Furman v. Georgia (1972) created a flurry of legislative activity with its ruling that the administration of capital punishment violated both the Eighth and Fourteenth Amendments. Other cases, such as Gregg v. Georgia and Woodson v. North Carolina (1976), further confused the complex issue by once again allowing the constitutionality of capital punishment in some cases and not in others.

As membership on the Supreme Court changed, the prospect for the national abolition of capital punishment grew dimmer. Advocates of death by lethal injection came forward and claimed the method was humane, efficient, and economical. The Supreme Court has been hesitant to make a definitive statement as to whether or not capital punishment is constitutional. The result is a sizable body of cases dealing with due process. In 1995 the number of executions reached its highest level since 1957. The Society for the Abolition of Capital Punishment, established in 1845, was the first national organization to fight capital punishment. Their goal has yet to be reached.

BIBLIOGRAPHY

ABC-Clio. Crime and Punishment in America: A Historical Bibliography. Santa Barbara, Calif.: ABC-Clio Information Services, 1984. Excellent guide to the literature.

Brandon, Craig. The Electric Chair: An Unnatural American History. Jefferson, N.C.: McFarland, 1999. A candid narrative about the place of the "chair" in America.

Friedman, Lawrence. Crime and Punishment in American History. New York: Basic Books, 1993. First-rate account.

Lifton, Robert Jay, and Greg Mitchell. Who Owns Death?: Capital Punishment, the American Conscience, and the End of Executions. New York: William Morrow, 2000. The authors oppose capital punishment; however, the narrative regarding the conflicts among prosecutors, judges, jurors, wardens, and the public is informative.

Marquart, James W., Selfon Ekland-Olson, and Jonathan R. Sorensen. The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923–1990. Austin: University of Texas Press, 1994. A detailed and informative state study.

Masur, Louis P. Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865. New York: Oxford University Press, 1989. A brilliant cultural analysis.

Vila, Bryan, and Cynthia Morris, eds. Capital Punishment in the United States: A Documentary History. Westport, Conn.: Greenwood Press, 1997. With a chronology of events and basic legal and social documents, a basic source.

Donald K.Pickens

See alsoCrime ; Hanging ; Punishment .

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capital punishment

capital punishment, imposition of a penalty of death by the state.

History

Capital punishment was widely applied in ancient times; it can be found (c.1750 BC) in the Code of Hammurabi. From the fall of Rome to the beginnings of the modern era, capital punishment was practiced throughout Western Europe. The modern movement for the abolition of capital punishment began in the 18th cent. with the writings of Montesquieu and Voltaire, as well as Cesare Beccaria's Essay on Crimes and Punishments (1764). In Great Britain, Jeremy Bentham was influential in having the number of capital crimes reduced in the 18th and 19th cent. Some of the first countries to abolish capital punishment included Venezuela (1863), San Marino (1865), and Costa Rica (1877).

Current International Practice

As of 2012, 97 countries had entirely abolished the death penalty, including the members of the European Union. Some other countries retained capital punishment only for treason and war crimes, while in several dozen others, death remained a penalty at law, though in practice there had not been any executions for decades. Among countries that retained the death penalty for ordinary crimes were many in the Caribbean, Africa, and Asia. China and Iran were believed to impose capital punishment most frequently.

In the United States

Since the 1970s almost all capital sentences in the United States have been imposed for homicide. There has been intense debate regarding the constitutionality, effect, and humanity of capital punishment; critics charge that executions are carried out inconsistently, or, more broadly, that they violate the "cruel and unusual punishment" provision of the Eighth Amendment. Supporters of the death penalty counter that this clause was not intended to prohibit executions. In the 1972 case of Furman v. Georgia, the U.S. Supreme Court ruled that capital punishment as then practiced was unconstitutional, because it was applied disproportionately to certain classes of defendants, notably those who were black or poor. This ruling voided the federal and state death penalty laws then in effect but left the way open for Congress or state legislatures to enact new capital punishment laws, a process that began almost immediately.

In Gregg v. Georgia (1976), the court allowed capital punishment to resume in certain states; in 1977, Gary Gilmore, executed by a firing squad in Utah, became the first to die under the new laws. Today, 31 states and the federal government and military have the death penalty. In 1982, Texas became the first state to execute a prisoner using lethal injection; most executions now employ this method. By 2006, however, concerns over evidence suggesting that some persons had experienced extremely painful executions due to the poor administration of the standard three-drug procedure for lethal injections led several courts to review how the injections were conducted and set stricter standards for them. In 2008 the Supreme Court rejected a challenge to the constitutionality of the three-drug method for lethal injections on the grounds that it could cause extreme pain. Subsequently, obtaining drugs for the three-drug lethal injection (usually sodium thiopental, pancuronium bromide, and potassium chloride) became more difficult as pharmaceutical companies refused to sell drugs used for execution to the states, leading to the adoption of varied procedures using one, two, or three drugs. In 2014 an execution in Oklahoma resulted in a widely publicized painful death, and prolonged executions occurred in Ohio and Arizona the same year. The gas chamber, hanging, the firing squad, and, most commonly, the electric chair are still used in some states; Florida's electrocutions, however, were heavily criticized following several grisly malfunctions, and in 2008 Nebraska's supreme court declared the electric chair to be cruel and unusual punishment. Texas leads all other states in the number of executions carried out, although it imposes the death penalty in murder cases less often than the national average.

In recent years, the Supreme Court has made it more difficult for death-row prisoners to file appeals, but it also sometimes has overturned death sentences or restricted their imposition. In 1988 the Court barred the execution of juveniles who were younger that 16 when they committed a crime; a 2005 decision extended this to offenders under the age of 18. In 2002 the Court barred the execution of mentally retarded offenders, overturning its 1989 ruling on the matter. Also in the same year the Court ruled that the death penalty must be imposed through a finding of a jury and not a judge. Since 2000, the number of death sentences imposed in the United States and the number of executions has declined; in many cases, a life sentence without parole is imposed instead of a death sentence.

Studies continue to show disparities in the imposition of capital punishment (it is most likely to be imposed if the victim was white and the defendant is black, but is least likely to be imposed if both victim and defendant are black), and criticism of the practice in the United States and abroad has been increasing markedly. The use of DNA fingerprinting to exonerate persons falsely convicted of rape and other crimes also has led to calls, in some instances by supporters of the death penalty, for the reexamination of the use of an ultimately irreversible sentence, and several states have appointed commissions to examine the issue. In 2002, in a surprising and controversial move, Illinois governor George Ryan commuted the sentences of all the state's death row inmates, saying that conviction errors and unfair imposition make capital punishment "arbitrary and capricious."

Bibliography

See studies by W. Berns (1981), H. A. Bedau, ed. (1982), R. Berger (1982), F. Zimring and G. Hawkins (1987), R. Hood (1989), J. Jackson (1996), I. Solotaroff (2001), J. Jackson, Sr., et al. (2001), F. R. Baumgartner et al. (2008), D. Garland (2010), B. Jackson and D. Christian (2012), and E. J. Mandery (2013).

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capital punishment

capital punishment was formerly of central importance in all European criminal justice systems. Although the history of capital punishment in Scotland has been little studied, it is clear that hanging was the standard method of executing on both sides of the border. Under English law, decapitation, hanging, drawing, and quartering, or (in the case of women) burning at the stake were reserved for traitors, while some independent jurisdictions, notably Halifax, where a primitive guillotine was in use, had their own methods. But generally, capital punishment meant hanging.

Evidence from burial sites suggests that capital punishment was known in Anglo-Saxon England. Calculating levels of capital punishment for this and the medieval period is impossible, although it seems they were low. This changed drastically in the Tudor period. By Elizabeth's reign large numbers of convicted criminals were executed, a trend which continued after 1603. To take an extreme example, an estimated 150 were hanged annually in the London area in the mid-Jacobean period. Put differently, between a quarter and a fifth of those standing trial for felony in Elizabethan or Jacobean England were executed. Overwhelmingly, they suffered for property offences: of 337 death sentences passed by the main criminal court in Cheshire 1580–1619, 294 (or 87 per cent) were for property offences (mainly theft and burglary), 35 for homicide, and 8 for other offences.

The Elizabethan and Stuart periods also saw an elaboration of rituals at executions, a trend which probably began with treason cases, and a marked contribution from the clergy. The speech made by the convicted person assumed a central importance, taking a stereotyped form in which they confessed their crimes, admitted earlier sins, sought forgiveness from monarch, God, and the spectators, and thus publicly reintegrated themselves into society before dying.

The 18th cent. provides better documentation on ceremonies and crowd reactions at executions. It also experienced a lower level of executions than the early 17th, with many convicted persons being reprieved, notably before being transported to the American colonies. A system of selectivity was in operation. The capacity to execute widely was retained but usually those executed were persistent offenders, persons with no influential patrons, perpetrators of unusually atrocious crimes, or offenders convicted at a time when the authorities wanted to make examples.

The early 19th cent. experienced a rapid transition in thinking on punishment. Transportation to Australia or incarceration in one of the new penitentiary prisons became the standard punishment for serious, non-homicidal offenders. By the mid-19th cent. capital punishment was restricted to murderers and, after 1868, was carried out inside prisons rather than in public. The abolition of the death penalty was already being mooted. Debate on this issue surfaced intermittently in the 20th cent., leading to its abolition for all practical purposes in 1965.

J. A. Sharpe

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JOHN CANNON. "capital punishment." The Oxford Companion to British History. 2002. Encyclopedia.com. 1 Jul. 2016 <http://www.encyclopedia.com>.

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Capital punishment

Capital punishment. This was the penalty for serious offences in the ancient world, summarized in the biblical injunction, ‘Life for life’ (Exodus 21. 23; cf. Genesis 9. 6).

Christianity inherited the biblical injunctions, and lived in a world where executions were practised: hence the acceptance in Romans 13. 1–7 that such executions may be instruments of God's wrath. However, Christianity derived itself far more from the demand of Jesus to forgive enemies and not to pursue vengeance. Christians have therefore been divided over the permissibility of capital punishment. Muslim attitudes are controlled by the verse in the Qurʾān, ‘Do not take the life which Allāh has made sacred except for justice’ (6. 151). In practice, capital punishment is required for murtadd (apostasy which has been followed by an attack on Islam), zināʾ (adultery), and unjust murder (see QIṢĀṢ).

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JOHN BOWKER. "Capital punishment." The Concise Oxford Dictionary of World Religions. 1997. Encyclopedia.com. 1 Jul. 2016 <http://www.encyclopedia.com>.

JOHN BOWKER. "Capital punishment." The Concise Oxford Dictionary of World Religions. 1997. Encyclopedia.com. (July 1, 2016). http://www.encyclopedia.com/doc/1O101-Capitalpunishment.html

JOHN BOWKER. "Capital punishment." The Concise Oxford Dictionary of World Religions. 1997. Retrieved July 01, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O101-Capitalpunishment.html

capital punishment

capital punishment Punishing a criminal offence by death. Usual methods of execution include hanging, electrocution, lethal injection, lethal gas or firing squad. The death penalty has been abolished in many Western countries. In the USA, capital punishment was effectively in abeyance during the 1970s after several rulings by the US Supreme Court, but today 38 states have the death penalty. Britain effectively abolished capital punishment in 1965. The use of capital punishment is the subject of much debate: supporters claim that such punishment can be deserved and has a deterrent effect, while opponents state that it is inhuman, does not deter and that miscarriages of justice cannot be rectified.

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