Death Penalty Laws: Offenses, Sentences, Appeals, And Execution Methods
DEATH PENALTY LAWS: OFFENSES, SENTENCES, APPEALS, AND EXECUTION METHODS
Before the late 1960s U.S. death penalty laws varied considerably from state to state and from region to region. Few national standards existed on how a murder trial should be conducted or which types of crimes deserved the death penalty. In South Carolina, for instance, a person could be executed for rape or robbery. In Georgia and in a number of other states, juries were given complete discretion in delivering a sentence along with the conviction. Though verdicts were swift, the punishments such juries meted out were frequently arbitrary and at times discriminatory.
In the late 1960s and early 1970s the U.S. Supreme Court undertook a series of cases that questioned the constitutionality of state capital punishment laws. In Furman v. Georgia (408 U.S. 238, 1972), the Court ruled that the death penalty, as it was then being administered, constituted a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. According to the Court, the state laws that were then in effect led to arbitrary sentencing of the death penalty. As a result, many states changed their laws to conform to standards set by the Furman decision. Since Furman,reviewof individual state statutes has continued as appeals of capital sentences reach state courts or the U.S. Supreme Court.
Under revised laws most states now use a bifurcated (two-part) trial system, where the first trial is used to determine a defendant's guilt, and the second trial determines the sentence of a guilty defendant. In most trials jurors are usually only given the option of either sentencing a convicted felon to life in prison or to death. During a sentencing hearing juries must consider all the aggravating circumstances presented by the prosecution and the mitigating circumstances presented by the defense. Mitigating circumstances may lessen responsibility for a crime, whereas aggravating circumstances may add to responsibility for a crime.
Different types of capital murder have been specifically defined as well. Even though varying somewhat from one jurisdiction to another, the types of homicide most commonly specified are murder carried out during the commission of a felony (serious offense such as rape, robbery, or arson); murder of a peace officer, corrections employee, or firefighter engaged in the performance of official duties; murder by an inmate serving a life sentence; and murder for hire (contract murder). Different statutory terminology may be used in different states to designate essentially similar crimes. Terms such as capital murder, first-degree murder, capital felony,or murder Class 1 felony may indicate the same offense in different states. Table 5.1 and Table 5.2 show capital offenses by state and federal laws providing for the death penalty in 2005.
The U.S. Supreme Court ruled in Eberheart v. Georgia (433 U.S. 917, 1977) that kidnapping that does not result in homicide is not a capital crime. Even though other offenses (most notably treason and air piracy or hijacking) do carry the death penalty, most have not yet had their constitutionality tested.
As in the past, states with the death penalty have continued to revise their statutory provisions relating to the death penalty. In the aftermath of the September 11, 2001, attacks on the World Trade Center and the Pentagon, several states expanded their laws, including both death penalty and non-death penalty states. According to Donna Lyons of the National Conference of State Legislatures, in ''States Enact New Terrorism Crimes and Penalties'' (State Legislative Report, vol. 27, no. 19, November 2002), New York, Florida, and North Carolina amended their death penalty statutes in 2001, making murder committed in furtherance of a terrorist act a capital crime. In 2002 ten more states—Georgia, Idaho, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and
|Capital offenses, by state, 2005|
|*As of December 31, 2005, 27 states excluded mentally retarded persons from capital sentencing: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, Ohio, South Dakota, Tennessee, Utah, Virginia, and Washington. Mental retardation is a mitigating factor in South Carolina.|
|Alabama. Intentional murder with 18 aggravating factors (Ala. Stat. Ann. 13A-5-40(a)(1)-(18)).|
Arizona*. First-degree murder accompanied by at least 1 of 14 aggravating factors (A.R.S. § 13-703(F)).
Arkansas*. Capital murder (Ark. Code Ann. 5-10-101) with a finding of at least 1 of 10 aggravating circumstances; treason.
California*. First-degree murder with special circumstances; train wrecking; treason; perjury causing execution.
Colorado*. First-degree murder with at least 1 of 17 aggravating factors; treason.
Connecticut*. Capital felony with 8 forms of aggravated homicide (C.G.S. 53a-54b).
Delaware*. First-degree murder with aggravating circumstances.
Florida*. First-degree murder; felony murder; capital drug trafficking; capital sexual battery.
Georgia*. Murder; kidnapping with bodily injury or ransom when the victim dies; aircraft hijacking; treason.
Idaho*. First-degree murder with aggravating factors; aggravated kidnapping; perjury resulting in death.
Illinois*. First-degree murder with 1 of 21 aggravating circumstances.
Indiana*. Murder with 16 aggravating circumstances (IC 35-50-2-9).
Kansas*. Capital murder with 8 aggravating circumstances (KSA 21-3439).
Kentucky*. Murder with aggravating factors; kidnapping with aggravating factors (KRS 32.025).
Louisiana*. First-degree murder; aggravated rape of victim under age 12; treason (La. R.S.14:30, 14:42, and 14:113).
Maryland*. First-degree murder, either premeditated or during the commission of a felony, provided that certain death eligibility requirements are satisfied.
Mississippi. Capital murder (97-3-19(2) MCA); aircraft piracy (97-25-55(1) MCA).
Missouri*. First-degree murder (565.020 RSMO 2000).
Montana. Capital murder with 1 of 9 aggravating circumstances (46–18–303 MCA); capital sexual assault (45-5-503 MCA)
|Nebraska*. First-degree murder with a finding of at least 1 statutorily-defined aggravating circumstance.|
Nevada*. First-degree murder with at least 1of 15 aggravating circumstances (NRS 200.030, 200.033, 200.035).
New Hampshire. Six categories of capital murder (RSA 630:1, RSA 630:5).
New Jersey. Murder by one's own conduct, by solicitation, committed in furtherance of a narcotics conspiracy, or during commission of a crime of terrorism (NJSA 2C:11-3c).
New Mexico*. First-degree murder with at least 1 of 7 statutorily-defined aggravating circumstances (Section 30-2-1 A, NMSA).
New York*. First-degree murder with 1 of 13 aggravating factors (NY Penal Law §125.27).
North Carolina*. First-degree murder (NCGS §14–17).
Ohio*. Aggravated murder with at least 1 of 10 aggravating circumstances (O.R.C. secs.
2903.01, 2929.02, and 2929.04).
Oklahoma. First-degree murder in conjunction with a finding of at least 1 of 8 statutorilydefined aggravating circumstances.
Oregon. Aggravated murder (ORS 163.095).
Pennsylvania. First-degree murder with 18 aggravating circumstances.
South Carolina*. Murder with 1 of 11 aggravating circumstances (§ 16-3-20(C)(a)).
South Dakota*. First-degree murder with 1 of 10 aggravating circumstances; aggravated
Tennessee*. First-degree murder with 1 of 15 aggravating circumstances (Tenn. Code Ann.
Texas. Criminal homicide with 1 of 9 aggravating circumstances (TX Penal Code 19.03).
Utah*. Aggravated murder (76-5-202, Utah Code Annotated).
Virginia*. First-degree murder with 1 of 13 aggravating circumstances (VA Code § 18.2-31).
Washington*. Aggravated first-degree murder.
Wyoming. First-degree murder.
Virginia—added murder committed in the perpetration of terrorism punishable by death.
Arkansas and Texas expanded their definitions of criminal homicide to include terrorism in 2003, the same year in which Colorado authorized the death penalty for anyone who used chemical, biological, or radiological weapons to kill more than one person.
The U.S. Supreme Court has held, in Coker v. Georgia (433 U.S. 584, 1977), that rape of an adult woman in which the victim survives does not warrant the death penalty.
As of November 2007, several state statutes allowed for the death penalty when sexual assault is committed against a child. They included Florida, Montana, Georgia, South Carolina, Oklahoma, Texas, and Louisiana.
Since 1974 a Florida law has been on the books that allows the death penalty for sexual battery committed against children. The upper limit of the age range was originally eleven, but was changed to twelve in 1984. However, that same year the Florida Supreme Court ruled that the death sentence for sexual battery was a cruel and unusual punishment. Even though the law has never been changed, in practice, those convicted of capital sexual battery in Florida receive a mandatory life sentence. A similar situation existed in Georgia law that listed, as of 2007, the death penalty as a possible sentence for rape.
Montana law provides for the death penalty as a possible sentence for repeat sexual offenders who cause ''serious bodily injury'' to victims less than sixteen years of age. However, as of November 2007 no Montana defendants had received the death penalty for this crime.
Oklahoma (2006), South Carolina (2006), and Texas (2007) have all recently changed their laws to allow for the death penalty for repeat offenders who commit rape or sodomy against a child. The upper age limit of the child victim is fourteen in Oklahoma and Texas and eleven in South Carolina. These new laws are generally referred to as ''Jessica's Laws,'' in memory of Jessica Lunsford, a nine-year-old Florida girl who was brutally raped and murdered in 2005 by a paroled sex offender.
In August 1995 Louisiana enacted a law allowing the death penalty for rape when the victims are under age twelve. In December 1995 Anthony Wilson was
|Federal laws providing for the death penalty, 2005|
|Note: U.S.C. is United States code.|
|8 U.S.C. 1342—Murder related to the smuggling of aliens.|
18 U.S.C. 32–34—Destruction of aircraft, motor vehicles, or related facilities resulting in death.
18 U.S.C. 36—Murder committed during a drug-related drive-by shooting.
18 U.S.C. 37—Murder committed at an airport serving international civil aviation.
18 U.S.C. 115(b)(3) [by cross-reference to 18 U.S.C.
1111]—Retaliatory murder of a member of the immediate family of law enforcement officials.
18 U.S.C. 241, 242, 245, 247—Civil rights offenses resulting in death.
18 U.S.C. 351 [by cross-reference to 18 U.S.C. 1111]— Murder of a member of Congress, an important executive official, or a Supreme Court Justice.
18 U.S.C. 794—Espionage.
18 U.S.C. 844(d), (f), (i)—Death resulting from offenses involving transportation of explosives, destruction of government property, or destruction of property related to foreign or interstate commerce.
18 U.S.C. 924(i)—Murder committed by the use of a firearm during a crime of violence or a drug-trafficking crime.
18 U.S.C. 930—Murder committed in a federal government facility.
18 U.S.C. 1091—Genocide.
|18 U.S.C. 1111—First-degree murder.|
18 U.S.C. 1114—Murder of a federal judge or law enforcement official.
18 U.S.C. 1116—Murder of a foreign official.
18 U.S.C. 1118—Murder by a federal prisoner.
18 U.S.C. 1119—Murder of a U.S. national in a foreign country.
18 U.S.C. 1120—Murder by an escaped federal prisoner already sentenced to life imprisonment.
18 U.S.C. 1121—Murder of a state or local law enforcement official or other person aiding in a federal
investigation; murder of a state correctional officer.
18 U.S.C. 1201—Murder during a kidnapping.
18 U.S.C. 1203—Murder during a hostage taking.
18 U.S.C. 1503—Murder of a court officer or juror.
18 U.S.C. 1512—Murder with the intent of preventing
testimony by a witness, victim, or informant.
18 U.S.C. 1513—Retaliatory murder of a witness, victim, or informant.
18 U.S.C. 1716—Mailing of injurious articles with intent to kill or resulting in death.
18 U.S.C. 1751 [by cross-reference to 18 U.S.C. 1111] —Assassination or kidnapping resulting in the death of the President or Vice President.
|18 U.S.C. 1958—Murder for hire.|
18 U.S.C. 1959—Murder involved in a racketeering offense.
18 U.S.C. 1992—Willful wrecking of a train resulting in death.
18 U.S.C. 2113—Bank-robbery-related murder or kidnapping.
18 U.S.C. 2119—Murder related to a carjacking.
18 U.S.C. 2245—Murder related to rape or child molestation.
18 U.S.C. 2251—Murder related to sexual exploitation of children.
18 U.S.C. 2280—Murder committed during an offense against maritime navigation.
18 U.S.C. 2281—Murder committed during an offense against a maritime fixed platform.
18 U.S.C. 2332—Terrorist murder of a U.S. national in another country.
18 U.S.C. 2332a—Murder by the use of a weapon of mass destruction.
18 U.S.C. 2340—Murder involving torture.
18 U.S.C. 2381—Treason.
21 U.S.C. 848(e)—Murder related to a continuing criminal enterprise or related murder of a federal,
state, or local law enforcement officer.
49 U.S.C. 1472–1473—Death resulting from aircraft hijacking.
charged by a grand jury with the aggravated rape of a five-year-old girl. (A grand jury differs from a regular jury in that the former, typically consisting of up to twenty-three jurors, determines whether the criminal complaint brought by the prosecutor warrants an indictment and a trial.) In April 1996 Patrick Dewayne Bethley pled innocent to raping three girls between December 1995 and January 1996. One of the girls was his daughter. At the time of the rapes, the girls were five, seven, and nine years old. The two defendants moved to quash their indictments. They claimed that the death penalty, when imposed for rape, constitutes a cruel and unusual punishment and, therefore, is unconstitutional under the Eighth Amendment and Article I, Section 20, of the Louisiana Constitution. On December 13, 1996, the Louisiana Supreme Court, in State v. Wilson (685 So.2d 1063), held by a 5–2 vote that the state death penalty statute was constitutional. The Louisiana Supreme Court concluded, ''Given the appalling nature of the crime, the severity of the harm inflicted upon the victim, and the harm imposed on society, the death penalty is not an excessive penalty for the crime of rape when the victim is a child under the age of twelve years old.''
In 1998 Bethley entered into a plea agreement with prosecutors in which he received a life sentence for rape. In turn, the state of Louisiana did not seek the death penalty against him. In 1999, on appeal, Wilson was found mentally retarded and, therefore, unable to assist in his defense.
In 2003 Patrick Kennedy was convicted of the brutal 1998 rape of his eight-year-old stepdaughter. The child suffered extensive internal damage in the attack and required reconstructive surgery. Kennedy was sentenced to death, and a subsequent motion for a new trial was denied. In May 2007 the Louisiana Supreme Court upheld his conviction and death sentence. Legal scholars believe the constitutionality of the sentence will ultimately be decided by the U.S. Supreme Court.
Capital punishment for sexual crimes against children is highly controversial even among those who support the death penalty in general. For example, in ''The Death Penalty for Child Rape: Why Texas May Help Louisiana'' (May 2, 2007, http://jurist._law.pitt.edu/forumy/2007/05/death-penalty-for-child-rapewhy-texas.php), Adam Gershowitz of the South Texas College of Law explains that many prosecutors fear that the new laws will discourage children from reporting sexual abuse committed by parents and relatives and could encourage child molesters to kill their victims.
The Texas ''Law of Parties''
Under Texas law a person who is party to, but does not actually commit, a murder can receive the death penalty. Section 7.02 of the Texas Penal Code took effect in 1974 and allows prosecutors to charge an accomplice with capital murder if the accomplice should have anticipated that the murder was going to occur. This is known informally as ''the law of parties'' and is explained by Jordan Smith, in ''Wrong Place, Wrong Time'' (Austin Chronicle, February 11, 2005). The law of parties received national attention when it was used in 1997 to impose a death sentence against Kenneth Foster for his role as the get-away driver in a murder. Foster and three other men were arrested in 1996. They had been robbing people at gunpoint when they saw an attractive woman in a suburban neighborhood. One of the men, Mauriceo Brown, left the car to talk to the woman and wound up shooting and killing her boyfriend, Michael LaHood Jr. Allegedly, Brown was at least eighty feet away from the car when the shooting occurred. He fled back to the car containing the other three men and they sped from the scene. Brown was sentenced to death; he was executed in 2006. The other two men involved were not charged with capital murder.
Foster garnered the support of abolitionists who argued that a death sentence was too harsh a penalty for his crime. After exhausting all appeals Foster faced execution on August 31, 2007. Just hours before the scheduled execution the Texas governor Rick Perry (1950–) granted clemency— a very rare occurrence in the state. Foster's sentence was changed to life imprisonment with a possibility for parole.
Minimum Age for Execution
Under state laws, the term juvenile refers to people below the age of eighteen. Literature on the death penalty typically considers ''juvenile offenders'' as people younger than eighteen at the time of their crimes. According to Victor L. Streib of Ohio Northern University, in The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973–December 31, 2004 (2005), the first execution of a juvenile in the United States took place in Plymouth Colony, Massachusetts, in 1642. Through 2004 an estimated 366 inmates who were juveniles during the commission of their crimes had been executed in the United States. Inmates spent from six years to more than twenty years on death row before execution.
Before 1999 the last execution of a person who was sixteen at the time of his crime occurred on April 10, 1959, when Maryland executed Leonard Shockley. After a forty-year respite in the United States, in February 1999 Oklahoma executed Sean Sellers, who was sixteen when he committed his crime and twenty-nine years old at the time of execution. He had been convicted for the murders of his mother, stepfather, and a convenience-store clerk. His supporters claimed Sellers suffered from multiple personality disorder, which was diagnosed after his conviction.
According to the Death Penalty Information Center (DPIC), since 1973 twenty-two inmates who were juveniles at the time of their crimes have been executed. (See Table 5.3.) Texas implemented the death penalty of thirteen juvenile offenders, followed by Virginia (three) and Oklahoma (two). Florida, Georgia, Missouri, and South Carolina each executed one juvenile offender.
On March 1, 2005, the Supreme Court ruled in Roper v. Simmons (543 U.S. 633) that the execution of a person
|Juveniles executed, January 1, 1973–August 24, 2007|
|Name||Date of execution||Place of execution||Race||Age at crime||Age at execution|
|Note: No juveniles were executed between January 1, 1973 and September 10, 1985.|
|J. Terry Roach||1/10/86||South Carolina||White||17||25|
|Dwayne Allen Wright||10/14/98||Virginia||Black||17||24|
|Douglas Christopher Thomas||1/10/00||Virginia||White||17||26|
|Shaka Sankofa (Gary Graham)||6/22/00||Texas||Black||17||36|
|Scott Allen Hain||4/3/03||Oklahoma||White||17||32|
who committed a crime as a minor was unconstitutional. The Court reversed an opinion issued fifteen years earlier in Stanford v. Kentucky (492 U.S. 361, 1989), where it held that juvenile murderers below the age of eighteen could be executed. In light of Roper, states are required to amend their statutes regarding juvenile executions.
Executing Mentally Retarded People
In 1989 the Supreme Court held, in Penry v. Lynaugh (492 U.S. 302), that it was not unconstitutional to execute a mentally retarded person found guilty of a capital crime. According to the Court, there was no emerging national consensus against such execution. Just two death penalty states—Georgia and Maryland—banned putting mentally retarded people to death. In 1988 Georgia became the first state to prohibit the execution of murderers found ''guilty but mentally retarded.'' The legislation resulted from the 1986 execution of Jerome Bowden, who had an intelligence quotient (IQ) of sixty-five. It is generally accepted that an IQ below seventy is evidence of mental retardation. (Normal IQ is considered ninety and above.) In 1988 Maryland passed similar legislation, which took effect in July 1989.
Between 1989 and 2001 eighteen states outlawed the execution of offenders with mental retardation. The federal government also forbids the execution of mentally retarded inmates. In the Anti-Drug Abuse Act of 1988, the government permits the death penalty for any person working ''in furtherance of a continuing criminal enterprise or any person engaging in a drug-related felony offense, who intentionally kills or counsels, commands, or causes the intentional killing of an individual,'' but forbids the imposition of the death penalty against anyone who is mentally retarded who commits such a crime. In 1994, when Congress enacted the Federal Death Penalty Act, adding more than fifty crimes punishable by death, it also exempted people with mental retardation from the death sentence.
Even though the Supreme Court had agreed to review the case of the North Carolina death row inmate Ernest McCarver in 2001 to consider whether it is unconstitutional to execute inmates with mental retardation, the case was rendered moot when a state bill was passed that banned such executions. On June 20, 2002, the Supreme Court finally ruled on a case involving the execution of mentally retarded convicts. In Atkins v. Virginia (536 U.S. 304), the Court ruled 6–3 that executing the mentally retarded violates the Eighth Amendment ban against a cruel and unusual punishment. The Court did not say what mental retardation consists of, leaving it to the states to set their own definitions.
Federal Capital Punishment in Non-death Penalty States
According to U.S. Department of Justice policy, federal criminal law can be enacted in any state. Federal law can also be enacted in any U.S. territory. In 2000 federal prosecutors in Puerto Rico sought the death penalty against two men for kidnapping and murder. Puerto Rico had its last execution in 1927 and had banned the death penalty in 1929. In August 2003 a federal jury voted to acquit the defendants.
Massachusetts outlawed capital punishment in 1975, but in 2000 the federal government sought the death penalty in the case of Kristen Gilbert in Massachusetts. Gilbert was charged with killing four patients at the Veterans Affairs Medical Center in Northampton, a federal hospital. The jury found Gilbert guilty of first-degree murder but was deadlocked on the death sentence. As a result, Judge Michael A. Ponsor (1946–) sentenced the defendant to life imprisonment without the possibility of parole.
Michigan has not executed an inmate under state law since it joined the Union in 1837. In 1938 Anthony Cherboris was executed in the state under federal law for killing a bystander during a bank robbery. This was the last federal death sentence in Michigan until March 16, 2002, when Marvin Gabrion received the death penalty for killing Rachel Timmerman in 1997 on federal property in Manistee National Forest. No execution date had been set as of November 2007.
In September 2003 Massachusetts was once again the scene of a federal death penalty case. The Federal Death Penalty Act of 1994 allowed federal prosecutors to seek the death penalty in the case of Gary Lee Sampson, who killed two men in separate carjacking incidents in 2001. Before the trial phase began, Sampson pleaded guilty to the crimes. The case proceeded to the penalty phase, in which a federal jury sentenced him to death. As of November 2007, Sampson remained on death row.
According to the DPIC (http://www.deathpenalty_info.org/article.php?scid1/29 did1/193#list), as of October 26, 2007, four additional federal death sentences had been handed down in non-death penalty states as follows— Iowa (2004), Vermont (2005), North Dakota (2006), and West Virginia (2007). The sentence in North Dakota was particularly notable, because it involved a crime that began in neighboring Minnesota, also a non-death penalty state. In 2003 Dru Sjodin, a student at the University of North Dakota, was kidnapped, raped, and murdered. Her body was found in Minnesota. Alfonso Rodriguez Jr. was convicted of the crime and sentenced to death. The judge ordered the execution to take place in South Dakota, which allows the death penalty by means of lethal injection.
Federal prisoners in death penalty cases used to be imprisoned in the state where the trial was held, but during the 1990s the U.S. Bureau of Prisons built a fifty-cell federal death house in Terre Haute, Indiana, to accommodate the condemned. It started housing death row inmates in 1999.
THE APPEALS PROCESS IN CAPITAL CASES
The appeals process in capital cases varies slightly from state to state but generally includes the steps shown in Figure 5.1.
The appeals process begins with the direct appeal. In Gregg v. Georgia (428 U.S. 153, 1976), the U.S. Supreme Court ruled that any death sentence must be appealed from the trial court directly to the highest court in the state with criminal jurisdiction. The highest court of the state may be either the state supreme court or the highest court of criminal appeals. The state high court evaluates the trial court records for constitutional or legal errors. If the high court upholds the conviction and sentence, the defendant can appeal directly to the U.S. Supreme Court using a writ of certiorari. A writ of certiorari is a petition to the Supreme Court to review only the issues brought up in the direct appeal in the state's high court. If the Supreme Court denies certiorari, the trial court's ruling stands.
If the first round of direct appeals is denied, the inmate may then seek state habeas corpus appeals (federal appeals by which state and federal inmates request a federal court to determine whether they are being held in violation of their constitutional rights), starting with the trial judge. Habeas corpus review, which affords state and federal prisoners the chance to challenge the constitutionality of their convictions or sentences, has long been considered an important safeguard in all criminal trials, especially those involving the death penalty. If turned down by the trial judge, the convict may petition the first level of state appellate courts and finally the state's highest court. This second round of appeals differs from the direct appeal in that the condemned may raise issues that were not and could not have been raised during the direct appeal. These issues include the incompetence of the defense lawyer, jury bias, or the suppression of evidence by police or prosecution. If the state review is denied, the condemned can again appeal directly to the U.S. Supreme Court.
A death row inmate who has exhausted all state appeals can then file a petition for a federal habeas corpus review on grounds of violation of his or her constitutional rights. The right may involve a violation of the Sixth Amendment to the U.S. Constitution (the right to have the assistance of counsel for defense), the Eighth Amendment (the ban against a cruel and unusual punishment), or the Fourteenth Amendment (the right to due process). The inmate files the appeal with the district court in the state in which he or she was convicted. If the district court denies the appeal, the inmate can proceed to the U.S. Circuit Court of Appeals in the region. As of 2007 there were ninety-four federal judicial districts and twelve U.S. Circuit Courts of Appeal around the United States. (See Figure 5.2.) Finally, if the circuit court denies the appeal, the condemned can for a third time ask the U.S. Supreme Court for a certiorari review.
If a convict comes to the end of all appeals and is still on death row, the only way the sentence can be altered is through the power of clemency. The power of clemency may rest solely with a state's governor, with a clemency board, or with the governor and a board of advisers. In federal cases the president alone has clemency power. All
states provide for clemency, which may take the form of a reprieve, a commutation, or a pardon. A reprieve, which typically involves a stay of execution, is just a temporary measure to allow further investigation of a case. A commutation involves the reduction of a criminal sentence after a criminal conviction. In the context of capital punishment, a commutation typically means replacing the death sentence with a lesser sentence, such as life without parole. Neither a reprieve nor a commutation removes a person's responsibility for the crime. A pardon, however, frees from punishment a person convicted of a crime, as well as removes his or her criminal record as if the conviction never happened. Pardons are generally only given if investigators can prove beyond any doubt that a death row inmate did not commit the crime of which he or she was convicted.
According to the DPIC, 229 clemencies were granted by states and the federal government ''for humanitarian reasons'' between 1976 and 2005. (See Table 5.4.) The vast majority (172) occurred in Illinois. The DPIC (2007, http://www.deathpenaltyinfo.org/article.php?did=126) notes that in 2003 the Illinois governor George Ryan (1934–) commuted the death sentences of 167 prisoners to life in prison and pardoned 4 other inmates on death row. Despite this event, clemencies are rarely granted. As shown in Table 5.4, all other states (and the federal government) reported a small number of clemencies granted for humanitarian reasons between 1976 and 2005. Texas, a state with an active death penalty process, had only one clemency during this period.
State Variations in Appeals
In all states a death sentence is automatically reviewed by a state appellate court or supreme court for possible constitutional or legal errors that may have taken place in
|Clemencies granted, by state, 1976–2005|
|Clemencies granted by|
state since 1976
the initial trial. Tracy L. Snell of the Bureau of Justice Statistics reports in Capital Punishment, 2005 (December 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf) that in 2005, among the thirty-eight states with capital punishment statutes, thirty-seven states provided for automatic review of all death sentences, regardless of the defendant's wishes. The remaining state, South Carolina, allowed the defendant to dispense with the sentence review if the court found him or her competent to decide for him-or herself (per the Supreme Court decision in State v. Torrence,473 S.E.2d. 703 [S.C. 1996]). The federal death penalty procedures, however, do not provide for automatic review after a death sentence is imposed.
Even though most of the thirty-seven states authorized an automatic review of both conviction and sentence, Snell indicates that Idaho, Montana, Oklahoma, South Dakota, and Tennessee required review of the sentence only. In Idaho inmates who wanted their convictions reviewed had to file an appeal or lose the right to do so. In Indiana and Kentucky defendants were allowed to waive review of their convictions.
Generally, the state's highest court of appeals conducts the review regardless of whether the defendant requests it. If the appellate court vacates (annuls) the conviction or the sentence, the case could be returned to the trial court for additional proceedings or for retrial. Subsequent to the resentencing or retrial, the death sentence could be reinstated.
Limiting Federal Appeals
The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 applied new restrictions and filing deadlines regarding appeals by death row inmates. It restricts death row inmates' use of habeas corpus petitions. The law requires death row inmates to file their habeas corpus petitions in the appropriate district courts within six months of the final state appeal. Before the enactment of this law, no filing deadline existed. Under the 1996 law, a defendant who fails to challenge his or her conviction or sentence within the time specified cannot file another petition unless approved by a three-judge appellate court. The AEDPA further dictates that federal judges must defer to the rulings of the state courts, unless the rulings violate the U.S. Constitution or U.S. laws or contradict ''the Supreme Court's recognition of a new federal right that is made retroactively applicable.''
Some opponents feared that the limitations on federal habeas corpus petitions required by the AEDPA would contribute to the execution of innocent people. In addition, they believed that the unclear language of the AEDPA allowed for varying interpretations in federal appeals courts. For the first time, in 2000, in Williams v. Taylor (529 U.S. 362) and Williams v. Taylor (529 U.S.420), the U.S. Supreme Court addressed the lower courts' interpretation of the AEDPA, ultimately ruling that the AEDPA was valid as long as the state appellate courts did not uphold rulings contrary to the precedents laid down by the U.S. Supreme Court.
DEATH PENALTY METHODS
The Eighth Amendment of the U.S. Bill of Rights, using the language of the English Bill of Rights of 1689, prohibits the use of cruel and unusual punishment in carrying out an execution. For the most part, neither the colonies nor the United States ever used excessively brutal methods of execution, such as drawing and quartering, burying alive, boiling in oil, sawing in half, or crucifixion. Throughout most of the nineteenth century civilians sentenced to death were hanged, whereas the military usually shot spies, traitors, and deserters.
The federal government currently authorizes the method of execution under two different laws. Crimes prosecuted under 28 Code of Federal Regulations, Part 26, call for execution by lethal injection, whereas offenses covered by the Violent Crime Control and Law Enforcement Act of 1994 (also known as the Federal Death Penalty Act of 1994) are referred to the state where the conviction occurred.
Snell reports that thirty-seven states used lethal injection as the primary method of execution in 2005. (See Table 5.5.) Of these states, twenty used lethal injection as the sole means of execution. Seventeen states authorized more than one method of execution—lethal injection and an alternative method—generally letting the condemned prisoner choose the method. Of these seventeen states, Arizona, Arkansas, Delaware, Kentucky, and Tennessee
|Methods of execution, by state, 2005|
|Lethal injection||Electrocution||Lethal gas|
|aAuthorizes 2 methods of execution.|
|bAuthorizes lethal injection for persons sentenced on or after 3/31/98; inmates sentenced before that date may select lethal injection or electrocution.|
|cAuthorizes lethal injection for persons sentenced after 11/15/92; inmates sentenced before that date may select lethal injection or gas.|
|dAuthorizes lethal injection for those whose offense occurred on or after 7/4/83; inmates whose offense occurred before that data may select lethal injection or electrocution.|
|eAuthorizes lethal gas if lethal injection is held to be unconstitutional.|
|fAuthorizes electrocution if lethal injection is held to be unconstitutional and firing squad if both lethal injection and electrocution are held to be unconstitutional.|
|gAuthorizes lethal injection for those whose capital offense occurred on or after 6/13/86; those who committed the offense before that date may select lethal injection or hanging.|
|hAuthorizes lethal injection for those whose capital offense occurred after 12/31/98; those who committed the offense before that date may select electrocution by written waiver.|
|iAuthorizes hanging only if lethal injection cannot be given.|
|jAuthorizes firing squad if lethal injection is held unconstitutional. Inmates who selected execution by firing squad prior to May 3, 2004, may still be entitled to execution by that method.|
|Alabamaa||Kentuckya, b||Ohio||Alabamaa||Arizonaa, c|
|Arizonaa, c||Louisiana||Oklahomaa||Arkansasa, d||Californiaa|
|Californiaa||Mississippi||Pennsylvania||Kentuckya, b||Wyominga, e|
|Delawarea,g||Nevada||Tennesseea, h||South Carolinaa||Firing squad|
|Floridaa||New Hampshirea||Texas||Tennesseea, h||Idahoa|
|New Hampshirea, i|
specified which method must be used, depending on the date of sentencing.
In 1977 Oklahoma became the first state to authorize lethal injection. It was not until 1982, however, that lethal injection was first used, when Texas executed Charles Brooks. Thomas P. Bonczar and Tracy L. Snell state in Capital Punishment, 2003 (November 2004, http://www.ojp.usdoj.gov/bjs/pub/pdf/cp03.pdf) that by 1993 twenty-five of thirty-six states with capital punishment used lethal injection as the primary method of execution. Since then, most states with the death penalty have adopted lethal injection as a more humane alternative to other methods of execution. On February 18, 1993, the federal government adopted lethal injection as its sole means of execution.
At the end of the nineteenth century, alternating current electricity became one of the dominant symbols of progress. Many people thought this modern convenience would provide a more humane method of execution. In 1888 New York built the first electric chair and in 1890 it executed William Kemmler with the crude mechanism.
By 2001 just two states—Alabama and Nebraska— authorized electrocution as the sole method of execution. In 2002 Alabama amended its capital statute, authorizing lethal injection as the primary means of execution, although an inmate may request electrocution. According to Snell, nine states continued to authorize electrocution as a method of execution in 2005. Except for Nebraska, which used electrocution as the sole method of execution, the other eight states gave the inmate the choice of lethal injection. (See Table 5.5.)
In 1921 Nevada became the first state to authorize the use of lethal gas for capital punishment. In 1924 Nevada executed Jon Gee using cyanide gas. This was the first time lethal gas was used for execution in the United States. The Nevada statute called for the condemned man to be executed in his cell, without warning, while asleep. Prison officials, unable to figure out a practical way to carry out the execution, ended up constructing a gas chamber. In 1994 a U.S. district judge in California ruled that lethal gas was an inhumane method of execution, a decision upheld by the U.S. Ninth Circuit Court of Appeals in 1995. The U.S. Supreme Court declined to rule on the case and remanded it back to the circuit court in 1996. In 2005 four states continued to authorize the use of lethal gas. (See Table 5.5.)
Snell reports that in 2005 Delaware, New Hampshire, and Washington authorized hanging as a method of exe- cution. The state of Washington gave the condemned person the choice of death by lethal injection, whereas New Hampshire authorized hanging only if, for some reason, lethal injection could not be administered. (See Table 5.5.) On July 8, 2003, Delaware dismantled its gallows because it no longer had an inmate eligible to choose the option of hanging (only those whose capital offense had occurred before June 13, 1986, were eligible). For Delaware convicts whose offenses occurred on or after June 13, 1986, lethal injection is the sole method of execution.
WITNESSES TO EXECUTIONS
Death penalty states have statutes or policies (or both) that specify which witnesses may be present at an execution. Witnesses usually include prison officials, physicians, the condemned person's relatives, the victim's relatives, spiritual advisers, selected state citizens, and reporters. In celebrated cases, however, such as that of the Rosenbergs, who were convicted spies (1953), the notorious California killer Caryl Chessman (1960), and the convicted Oklahoma City bomber Timothy McVeigh (2001), the witnesses made up a larger group.