Capital Punishment

views updated May 29 2018

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
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
Not authorized     
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
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
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
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
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
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
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
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
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
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
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
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
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
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
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
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
Tit. 17A §§1251, 1152
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
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
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
Const. Art. 4 §46; §750.316
609.10; 609.185; 1911 Minn. Laws Ch. 387
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
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
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
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
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
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
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
§§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
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
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
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
Ch. 12-50 repealed by N.D. Laws Ch. 116 §41
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
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
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
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
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
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
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
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
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
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
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
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
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
61-11-2 (1984)
939.50(3)(a); 940.01
State/Code SectionAllowedEffect of IncapacityMinimum AgeNon-homicidalCapital HomicideMethod of Execution
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

Capital Punishment

views updated May 23 2018


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

Bell v. Cone

The U.S. Supreme Court has made clear that state courts may not impose capital punishment where juries have used vague criteria in making their death penalty determinations. To satisfy the Court's requirements under the Eighth Amendment's Cruel and Unusual Punishment Clause, state courts have had to impose "narrowing constructions" on terms such as "heinous," "atrocious," and "cruel." Such constructions have been applied since the early 1980s, yet legal questions have persisted. In the latest case, Bell v. Cone, __U.S. __, 122 S.Ct. 847, __L.Ed.2d __ (2005), the U.S. Supreme Court ruled that a state appeals court's upholding of a death sentence, which had been based on a jury's finding that the murders were "especially heinous, atrocious or cruel," was not contrary to clearly established Supreme Court precedent.

Gary Cone was convicted of murdering Shipley Todd, 93, and his wife, Cleopatra, 78, in 1980. Cone had repeatedly beaten the elderly couple about the head. Blood had been spattered throughout the house, both victims had apparently resisted, and the deaths were not instantaneous. It was clear that one of the victims had been killed before the other, which suggested that the victims suffered terror and fright during their final minutes of life. Following Cone's conviction, the jury heard evidence during the penalty phase to determine whether Cone should be sentenced to death. The jury found that Cone should receive the death penalty based on four aggravating circumstances, including the fact that the murders were "especially heinous, atrocious, or cruel in that they involved torture or depravity of mind." The Tennessee Supreme Court upheld Cone's conviction and death sentence. As to the "heinous, atrocious, or cruel" aggravating circumstance, the court found ample support in the way Cone had brutally beaten the couple and in the fact the victims had not died instantaneously. The elderly victims had apparently refused to cooperate with Cone as he ransacked their house; in addition, Cone had not raised the issue of self-defense.

Cone filed post-conviction petitions in the state courts, alleging that the "especially heinous, atrocious, or cruel" aggravating circumstance was unconstitutionally vague under the Eighth Amendment. However, the state courts refused to hear these appeals because this issue had not been raised in his original appeal. Cone then filed for a writ of habeas corpus in federal district court , asserting the same constitutional argument. The district court ruled that Cone was procedurally barred from raising this issue because he had not raised it in his state-court direct appeal. Cone appealed this ruling to the U.S. Court of Appeals for the Sixth Circuit, which agreed with his Eighth Amendment claim. The Sixth Circuit concluded that the Tennessee Supreme Court had not applied a "narrowing construction" of the "especially heinous, atrocious, or cruel" aggravating circumstance, which meant that the jury could have imposed the death penalty based on subjective interpretations of these terms.

The Supreme Court, in a unanimous decision, overturned the Sixth Circuit's decision. In a per curiam opinion (i.e., an opinion not signed by any of the justices), the Court found that the state supreme court had properly narrowed the construction of the aggravating circumstance. Under the precedent of Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), federal courts must determine whether the state courts have sufficiently defined the vague terms to give proper guidance to the sentencing juries. The Sixth Circuit had found no evidence that the Tennessee Supreme Court had mentioned a narrowing interpretation or that it had cited a previous Tennessee case that had done so. The U.S. Supreme Court disagreed. The Court noted that it applied a "highly deferential standard" to state court rulings and that it gave state courts the benefit of the doubt in close cases. In this case, the Sixth Circuit was not "free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation." Although the Tennessee Supreme Court had not cited a previous case that dealt with the "especially heinous, atrocious, or cruel" aggravating circumstances, it was clear that the court had implicitly used this decision in analyzing Cone's case.

The Supreme Court found more importance in the fact that the Tennessee Supreme Court had applied a narrower construction of the terms of the aggravating circumstances. The state court's decision had "closely tracked" its previous reasoning for affirming death sentences where it had applied a narrowed construction of the "heinous, atrocious, or cruel" language. The brutality of Cone's crime and the fact that the victims had not died instantly was cited by the state supreme court in the same way as previous decisions narrowing the construction of the terms. Finally, Cone's particular acts were within the meaning of torture as found in the aggravating-circumstances category. Therefore, the state supreme court had applied its narrowed construction constitutionally.

Bell v. Thompson

A key component of the U.S. judicial system is finality: once litigants have exhausted all their appeal rights and have lost, a final judgment must be entered that signifies the end of the case. In the federal system a final judgment is called a mandate and the Federal Rules of Appellate Procedure give clear direction when mandates must be filed by courts. In Bell v. Thompson, __U.S. __, __ S.Ct.__, __ L.Ed.2d __ 2005 WL 1499791 (2005), the Supreme Court ruled that a federal appeals court abused its discretion when it failed to enter a mandate after the Supreme Court denied review of a death penalty habeas corpus petition and then issued a new decision that returned the case to the district court for further consideration.

Gregory Thompson was convicted in Tennessee state court for the 1985 murder of a woman and was sentenced to death. Before trial he was judged mentally competent at the time of the offense and at the time of the examination, but a former girlfriend testified at trial that Thompson's behavior had become erratic after he suffered head injuries suffered from a beating while in the Navy. The Tennessee appeals courts upheld his conviction and death sentence and the U.S. Supreme Court declined to hear his case in 1990. Thompson then pursued postconviction appeals based on a claim of ineffective legal counsel at his trial. He contended that his head injuries had diminished his mental capacity and that evidence of this condition should have been presented by experts at his trial.

The Tennessee state courts denied his appeals and in 1999 he filed a petition for a writ of habeas corpus in federal district court. He based his petition on the same grounds but this time he included an examination by a psychologist who conducted an exhaustive review of Thompson's mental condition. The psychologist concluded that Thompson suffered from a bipolar disorder at the time he committed the 1985 murder. The district court denied Thompson's petition, finding that he had not submitted any significant evidence. It turned out that the psychologist's deposition and report had not been filed with the court due to an oversight by Thompson's attorney. The district court rejected Thompson's request to supplement the record with these pieces of evidence, finding the request untimely. On appeal, Thompson's attorney submitted the deposition and report as part of his request that the Sixth Circuit Court of Appeals hold Thompson's appeal in abeyance until the record was supplemented. The appeals court ultimately rejected Thompson's habeas appeal and the Supreme Court denied him review.

Under Rule 41 of the Federal Rules of Appellate Procedure the Sixth Circuit was required to immediately file a mandate upon receipt of the Supreme Court order denying review. The Sixth Circuit received the order in December 2003 but did not enter the mandate. The state of Tennessee, assuming the decision was final, set an execution date of August 19, 2004, for Thompson and a new appeal was commenced over his competency to be executed. On June 23, 2004, seven months after the Supreme Court denied review, the Sixth Circuit panel issued an amended opinion that directed the case be sent back to the district court to examine Thompson's competency. Judge Richard F. Suhrheinrich, in his opinion, noted that he had on his own accord reviewed the entire record and had come to the conclusion that the psychologist's deposition and record were crucial parts of Thompson's case and should be considered by the district court. The state challenged this unusual action and the Supreme Court agreed to review the decision.

The Court, in a 5-4 decision, overturned the Sixth Circuit decision. Justice Anthony Kennedy based the decision on the appeals courts' abuse of judicial discretion. A major concern was the length of time between the denial of Supreme Court review and the issuance of the amended opinion. This delay "was compounded by the Court of Appeals' failure to issue an order or otherwise give notice to the parties that the court was reconsidering its earlier opinion." The state had worked under the assumption that the decision was final and had set an execution date. This, in turn, led to state and federal proceedings on Thompson's behalf challenging his mental competency to be executed. Justice Kennedy noted that the state and Thompson had good reason to believe the case was final, for a denial of review by the Supreme Court "usually signals the end of litigation" and exceptions to entering a mandate were rare.

Justice Kennedy also challenged the argument that the Sixth Circuit had not reviewed the deposition and report prior to Supreme Court review. He noted that the documents had been sent to the appeals court and that the three-judge panel had found all of Thompson's argument unpersuasive. The missing evidence may have been relevant but Kennedy concluded that it was "not of such character as to warrant the Court of Appeals' extraordinary departure from standard appellate procedures." Moreover, there were "ample grounds" to conclude that this evidence would not have altered the outcome of the district court's decision. Therefore, the Court reversed the Sixth Circuit decision.

Justice Stephen Breyer, in a dissenting opinion joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, argued that the appellate judge had done the right thing to prevent a miscarriage of justice.

Bradshaw v. Stumpf

On June 13, 2005, the U.S. Supreme Court upheld the murder conviction of John David Stumpf, who was sentenced to death in 1984. The Court reversed a decision of a panel of the U.S. Court of Appeals for the Sixth Circuit, which had ordered an Ohio district court to issue a writ of habeas corpus in order to review the conviction. The Supreme Court remanded the case in order for the Sixth Circuit to determine whether the imposition of the death penalty had been warranted.

In May 1984, Stumpf met with Clyde Daniel Wesley and Norman Leroy Edmonds at a bar in Washington, Pennsylvania. Wesley and Edmonds had previously stolen a car in Oklahoma and had weapons and alcohol in their possession in the car. After leaving the bar, the men decided to drive to Ohio, and they continued to drink along the way. At one point during the drive, Wesley shot at the driver of another car. Upon arriving in New Concord, Ohio, the men stopped the car along an interstate highway. Stumpf and Wesley told Edmonds that they needed to make a phone call. They approached the home of Norman and Mary Jane Stout, who lived 100 to 150 yards from the road. Ohio v. Stumpf, 512 N.E.3d 598, 600 (Ohio 1987).

Wesley and Stumpf asked whether they could use the Stouts' telephone. Norman Stout allowed them to do so. After a short time, Wesley and Stumpf pointed pistols at the Stouts and moved them into their bedroom. Wesley proceeded to rob the house while Stumpf kept the Stouts at gunpoint. At one point, Norman Stout approached Stumpf, and Stumpf responded by shooting Stout between the eyes with a .25-caliber Raven automatic pistol. Stout did not die, and he continued to approach Stumpf. Stumpf struck Stout with the butt of the gun and hit him with another shot, rendering Stout unconscious. As Stout regained consciousness, he heard four shots, which killed Mary Jane Stout. Ohio v. Stumpf, 512 N.E.3d 598, 601 (Ohio 1987).

Stumpf and Wesley stole the Stouts' car and fled. Stumpf discarded the pistol that he had used in the robbery and murder. Edmonds, who was still in the car on the highway at the time of the shooting, left after he saw a car leaving the Stouts' house. He made a phone call to his family in Texas and then returned to Pennsylvania. Edmonds, Stumpf, and Wesley reunited in Pennsylvania shortly thereafter. Ohio v. Stumpf, 512 N.E.3d 598, 600 (Ohio 1987).

Edmonds' call to Texas was traced, and authorities arrested him. He told police what he knew. Authorities issued an arrest warrant for Stumpf and Wesley. After learning of the warrant, Stumpf surrendered to authorities. He eventually admitted to robbing the Stouts and to shooting Norman Stout, but he denied killing Mary Jane Stout. Stumpf changed his story several times and later denied that he had fired the Raven pistol. Norman Stout, however, identified Stumpf as the one who had done so. Police determined that seven of the eight shots fired in the house had come from that gun, while an additional shot had come from Wesley's Armi .25-caliber pistol. Ohio v. Stumpf, 512 N.E.3d 598, 601-02 (Ohio 1987).

Wesley was discovered and detained in Texas. He resisted extradition to Ohio. While Wesley was still detained in Texas, Stumpf pleaded guilty to aggravated murder and four other counts. A three-judge panel in Ohio state court unanimously found Stumpf guilty of the charges beyond a reasonable doubt . During the sentencing phase, Stumpf claimed that, although he had shot Norman Stout, it was Wesley who had shot Mary Jane Stout while Stumpf had gone to steal the Stouts' car. Nevertheless, the panel sentenced Stumpf to death. Ohio v. Stumpf, 512 N.E.3d 598, 602 (Ohio 1987).

Stumpf appealed his convictions in Ohio courts. Both an Ohio appellate court and the Supreme Court of Ohio affirmed Stumpf's conviction and death sentence. Specifically, the Ohio Supreme Court affirmed the panel's decision that the aggravating circumstances outweighed any mitigating circumstances , and it held that the death penalty in the case was neither excessive nor disproportionate to the penalty as compared to other similar cases. Ohio v. Stumpf, 512 N.E.3d 598, 610 (Ohio 1987). In 1988, the U.S. Supreme Court denied certiorari to review the state court's findings.

Several years after his conviction, Stumpf sought a writ of habeas corpus from the U.S. District Court for the Southern District of Ohio. Stumpf alleged several grounds for relief, including a claim that the Ohio death penalty statute was unconstitutional. The district court denied his petition. Stumpf v. Anderson, No. C-1-96-668, 2001 WL 242585 (S.D. Ohio Feb. 7, 2001).

Stumpf subsequently appealed the district court's decision to the U.S. Court of Appeals for the Sixth Circuit, which reversed the death penalty on several grounds. First, the court found that Stumpf's guilty plea was invalid because Stumpf had been unaware that, in order to be convicted, the specific intent to kill Mary Jane Stout would have been required. The court reviewed a series of exchanges between Stumpf and the judge in his case when he pleaded guilty, and it determined that the exchanges had "all the hallmarks of a serious misunderstanding." Stumpf v. Mitchell, 367 F.3d 594, 606 (6th Cir. 2004). Accordingly, the trial court had failed to inform Stumpf of the elements of the offense for which he pleaded guilty. The Sixth Circuit determined that, had Stumpf been informed of these elements, he would not have entered a guilty plea. Stumpf v. Mitchell, 367 F.3d 594, 610 (6th Cir. 2004).

The court also reviewed the prosecutions of both Stumpf and Wesley in determining whether Stumpf's due process rights had been violated. Prosecutors at Stumpf's trial claimed that Stumpf had shot Mary Jane Stout. However, at Wesley's separate trial, prosecutors maintained the Wesley had been the shooter. The court determined that because the prosecution had used inconsistent and irreconcilable theories to convict both Stumpf and Wesley, the prosecution had violated Stumpf's due process rights. The court remanded the case to the district court, ordering it to issue a writ of habeas corpus in Stumpf's favor. Stumpf v. Mitchell, 367 F.3d 594, 618 (6th Cir. 2004).

Ohio Attorney General Jim Petro filed a petition for writ of certiorari to the U.S. Supreme Court on November 8, 2004. The Court granted the petition on January 7, 2005. In a decision issued on June 13, 2005, the Court reversed the Sixth Circuit's decision. Bradshaw v. Stumpf, __ U.S. __, __ S. Ct. __, __ L. Ed. 2d __, 2005 WL 1383730 (2005)

In a decision by Justice Sandra Day O'Connor, the Court disagreed with the Sixth Circuit that Stumpf had lacked awareness of the elements of the crime for which he was accused. The Court noted that Stumpf's attorneys had explained the elements of the crime to Stumpf and that Stumpf confirmed that his attorneys had informed him of these elements. According to O'Connor, Supreme Court precedent does not require the judge to explain all of the elements of a crime to the defendant. When the defense counsel explains the elements of a crime to the accused, and the accused enters a guilty plea based on this explanation, then the accused has entered a guilty plea with sufficient awareness of the nature of the charges against him or her, the Court has held.

The Court likewise disagreed with the Sixth Circuit's ruling that the prosecutor's use of contradictory theories to convict Stumpf and Wesley had violated Stumpf's due process rights. According to the Court, the precise identity of the shooter was immaterial to Stumpf's conviction for aggravated murder. On the other hand, the Court noted that the use of conflicting theories could have interfered with Stumpf's rights at the sentencing hearing. It thus vacated the Sixth Circuit's ruling on this point and remanded the case to the Sixth Circuit to allow the lower court to determine whether the imposition of the death penalty violated Stumpf's due process rights.

Brown v. Payton

When Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, it sought to streamline post-conviction appeals proceedings and to curtail the time prisoners could use to seek habeas corpus relief. Congress directed that federal courts generally defer to state court judgments on questions of federal constitutional law in criminal cases. AEDPA established a "deference" standard, which mandates that the federal courts, in reviewing state court convictions, defer to a state court ruling on the merits of any habeas claim. A federal court must defer unless the state court adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, or if the state conviction resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Since the passage of AEDPA, the U.S. Supreme Court has been called upon to review the application of these two standards. In Brown v. Payton, __U.S. __, 125 S.Ct. 1432, __ L.Ed.2d __ (2005), the Court held that the U.S. Court of Appeals for the Ninth Circuit had improperly applied both standards in reviewing a death penalty case.

William Payton stood trial in a California court for the 1980 rape and murder of Pamela Montgomery and the attempted murder of a mother and her child. He did not contest his guilt and presented no evidence during that part of the trial. Once the jury had convicted Payton of first-degree murder, it moved into the penalty phase of the trial to determine whether he should be sentenced to death. During that phase, the prosecutor presented evidence showing Payton had stabbed a previous girlfriend and that he had told fellow prisoners while awaiting trial that he had an urge to rape and stab women. Payton's attorney called eight witnesses, who spent most of their time discussing how Payton's behavior had changed during the 21 months he had spent in prison awaiting trial. A number of the witnesses testified that Payton had been very religious, had participated in Bible study classes, and had worked to calm other prisoners down.

Problems arose over the jury instructions and the statements of the prosecutor concerning Payton's postcrime behavior. The defense attorney argued that the judge should issue a specific instruction telling the jury to consider evidence of Payton's character and background. The prosecutor objected, contending that any character and background evidence was irrelevant. The judge opted to use a general instruction that directed jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." During closing arguments, the prosecutor told the jury that the instruction did not mean that they had to consider any of Payton's postcrime behavior. The defense attorney objected, and the judge admonished the jury that the prosecutor's words were merely argument. The judge did not explicitly instruct the jury that the prosecutor's interpretation of the law was wrong. The jury recommended that Payton be sentenced to death.

The California Supreme Court affirmed Payton's conviction and sentences. Payton then pursued post-conviction relief, securing a writ of habeas corpus from a federal district court on the grounds that the general jury instruction misinformed the jury that it could not consider the mitigation evidence. The U.S. Court of Appeals for the Ninth Circuit upheld this decision, holding that the California Supreme Court had unreasonably applied a U.S. Supreme Court precedent in ruling that the jury instruction was not unconstitutionally ambiguous in Payton's case.

The U.S. Supreme Court, in a 5-3 decision (Chief Justice William Rehnquist did not participate due to illness) reversed the Ninth Circuit's decision. Justice Anthony Kennedy, writing for the majority, concluded that the appeals court had not established the necessary grounds under AEDPA to overturn the state court's decision. The U.S. Supreme Court previously addressed the California jury instruction in a case involving precrime mitigating evidence. The California Supreme Court had ruled that this precedent allowed the jury instruction to encompass both precrime and postcrime mitigating evidence. Justice Kennedy thought that the state court did not "act unreasonably in declining to distinguish between precrime and postcrime mitigating evidence." The jury instruction told jurors to consider any circumstance that might excuse the crime. Therefore, it was not unreasonable "to believe that a postcrime character transformation could do so."

Justice Kennedy then turned to whether it was unreasonable for the California Supreme Court to conclude that the prosecutor's improper remarks during closing arguments did not mislead the jury into believing that it should not consider Payton's mitigating evidence. He found that the prosecutor's remarks had not been made in bad faith . In addition, Payton's attorney had already introduced the evidence prior to the closing argument . Although the trial judge should have advised the jury that it could consider the mitigating evidence, Justice Kennedy ruled that the judge's general charge to the jury that it consider all evidence was sufficient. Finally, Kennedy believed that it was not unreasonable for the California court to conclude that the mitigating evidence "was too insubstantial to overcome the arguments for imposing the death penalty."

Justice Stephen Breyer, in a concurring opinion, made clear that he was troubled by the actions at Payton's trial but voted with the majority because the AEDPA mandated such a "deferential test." Justice David Souter,in a dissenting opinion joined by Justices John Paul Stevens and Ruth Bader Ginsburg, argued that the California Supreme Court had improperly and unreasonably applied clear U.S. Supreme Court precedent.

Deck v. Missouri

It has long been the rule in the United States—dating back at least to English common law—that the accused at a capital trial be free of shackles and/or visible signs of restraint during the trial on the merits (the "guilt phase"). In Deck v. Missouri, 544 U.S. __, 125 S.Ct. 2007, __ L.Ed.2d (2005), the U.S. Supreme Court held that the same considerations and reasons (excepting a presumption of innocence) apply to a convicted offender during the "penalty phase of a trial. Accordingly, the Court held that, unless "justified by an essential state interest" that is specific to the defendant on trial, the Fifth and Fourteenth Amendments to the U.S. Constitution forbid the use of visible shackles or restraints during the penalty phase of a capital trial as well.

After Carman Deck robbed and killed an elderly couple, he was convicted of two counts of first-degree murder and four other crimes in a Missouri state court, then sentenced to death. On direct appeal, his convictions and sentences were affirmed. He sought post-conviction relief, and the Missouri Supreme Court remanded the matter for the penalty phase only. At the new sentencing trial, counsel for Deck objected to his appearance in leg shackles, handcuffs, and a belly chain, expressly moving to strike the jury panel "because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is…violent today." Counsel's objections were overruled, and Deck was again sentenced to death.

The Missouri Supreme Court affirmed the sentence and rejected Deck's claims that appearing in shackles violated (among other things) the U.S. Constitution. The court noted there was "no record of the extent of the jury's awareness of the restraints…" and that there was no claim that the restraints impeded Deck from participating in the proceedings or caused him to suffer prejudice. However, the court cited evidence of a risk that Deck, a repeat offender, might flee, in that he might have killed his two victims in order to avoid being returned to custody. Therefore, the Missouri court held, there was ample evidence to support the trial court's exercise of discretion to require shackles. State v. Deck, 136 S.W.3d 481 (Mo. 2004)

The U.S. Supreme Court first reviewed the constitutional underpinnings of the routine use of visible shackles during the guilt phase of a criminal trial. The Court reiterated that the established law permits a state to shackle an accused only when there is a special need. There are three main reasons for this premise.

First, criminal law presumes that defendants are innocent until proven guilty. Visible shackles undermine that presumption and the fairness of the fact-finding process. Instead, the shackles suggest to the jury that the justice system sees a "need to separate a defendant from the community at large." (quoting Holbrook v. Flynn, 475 U.S. 560 at 569, 1986)

Second, the Constitution grants an accused the right to counsel, in order to help him or her to secure a meaningful defense. Visible shackles diminish that right. Shackles can interfere with an accused's ability to communicate with his counsel or to participate in his own defense.

Third, judges must seek to maintain a judicial process that is dignified and reflects the import of the matter at issue. This includes the respectful treatment of the accused. The routine use of shackles undermines these objectives.

The high court made it clear that it found the Missouri court's arguments unconvincing. "The first argument is inconsistent with the record in the case, which makes it clear that the jury was aware of the shackles," wrote Justice Stephen Breyer for the Court. The Missouri court's conclusion that the trial court acted within its discretion foundered on the fact that the record contained no formal or informal findings. The trial judge made no reference to any escape risk or threat to the courtroom security, nor did the trial judge explain why, if shackles were necessary, he did not provide for nonvisible ones, as was apparently done during the guilt phase of Deck's trial.

The Court held that the same justifications disavowing routine use of shackles during the guilt phase (i.e., presumption of innocence, securing a meaningful defense, and maintaining dignified proceedings) apply with like force to the penalty phase. The last two were self-evident. As for the presumption of innocence, while the jury is no longer deciding between guilt and innocence, it is deciding between life and death, which is no less important.

Justice Clarence Thomas wrote a dissenting opinion, joined by Justice Antonin Scalia, in which he characterized the Court's legal obligation as "not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question: Does the Due Process Clause of the Fourteenth Amendment preclude the visible shackling of a defendant." The dissent disagreed with the majority's resurrection of an old rule "the basis for which no longer exists," and its extension of the rule from trial to sentencing. In so doing, wrote Justice Thomas, "[T]he Court pays only superficial heed to the practice of States…and all but ignores the serious security issues facing our courts."

Florida v. Nixon

The U.S. Supreme Court has interpreted the Sixth Amendment to mean that a criminal defendant is entitled not only to legal representation but also to effective counsel. In one line of cases, the Court has ruled that the performance of a defense attorney must be measured by an objective standard of reasonableness, based on the particular facts. In another line of cases, however, the Court has presumed ineffective assistance of counsel . Attorneys who do not meaningfully oppose the prosecution's case are subject to this standard, which results in an overturning of the conviction. In Florida v. Nixon, __U.S. __, __S.Ct. __, __ L.Ed.2d __ (2004), the U.S. Supreme Court held that the Florida Supreme Court had mistakenly applied this presumption of deficient performance in a murder case in which the defense attorney conceded his client's guilt in hopes of sparing him from a death sentence.

Joe Nixon was charged with the kidnapping and murder of a woman who had offered him a ride. Nixon had kidnapped the woman, driven to a secluded spot, tied her to a tree, and then set her on fire. He then proceeded to drive the woman's sports car around the city of Tallahassee and tell his brother and girlfriend what he had done. In addition, he had pawned two rings taken from his victim, which led to a pawnshop receipt that had his driver's license on it. Michael Corin, an assistant public defender, was appointed as Nixon's legal counsel. He attempted to negotiate a plea bargain, but the prosecutor refused to drop his pursuit of a death sentence. Faced with going to trial with a very weak case, Corin conferred with Nixon and recommended that Nixon concede his guilt. The attorney would then try to convince the jury during the penalty phase that Nixon suffered from mental illness. Corin believed such a strategy would preserve his credibility with the jury, instead of denying that Nixon had committed the crimes. Nixon, whom Corin had represented before on criminal charges, had a good relationship with his attorney, but he was unresponsive when Corin asked him to approve the trial strategy. Nixon refused to attend pretrial hearings and gave Corin little, if any, assistance with the preparation of the case.

Faced with this silence, Corin exercised his professional judgment and decided to concede his client's guilt. The trial was a disaster for the defense, as Nixon became disruptive and violent in the courtroom. Finally, Nixon announced that he was not interested in attending the trial and waived his right to be present. Corin acknowledged Nixon's guilt in his opening statement but actively contested the introduction of crime scene photographs that he believed were prejudicial. He also objected to several jury instructions. The jury quickly found Nixon guilty of the kidnapping and murder, which led to the penalty phase. Corin introduced psychiatric evidence that indicated that Nixon had a low IQ, an antisocial personality, a history of psychiatric care, and brain damage. In his closing argument he asserted that these factors, along with his client's youth, demonstrated that the jury had grounds to spare Nixon's life. However, the jury recommended Nixon be sentenced to death. At the close of the trial, the trial judge commended Corin for his performance and supported Corin's concession-of-guilt strategy.

Nixon lost his direct appeals, but he filed for post-conviction relief with the Florida Supreme Court, alleging that Corin's strategy, which Nixon had not approved, demonstrated ineffective assistance of counsel. In addition, Nixon contended that Corin's conduct raised a presumption of prejudice that automatically negated his conviction and death sentence. The state supreme court agreed, ruling that there was no competent evidence that Nixon had "affirmatively and explicitly agreed to counsel's strategy." Nixon's silent behavior did not absolve the need for Corin to obtain his client's consent. Therefore, this failure to obtain consent automatically rendered Corin's performance ineffective.

The U.S. Supreme Court, in a unanimous decision (Chief Justice William Rehnquist did not participate due to illness), overturned the Florida Supreme Court's decision. Justice Ruth Bader Ginsburg, writing for the Court, acknowledged that an attorney has a duty to consult with the client about important decisions. In addition, the Court has long held that an attorney could not plead his client guilty without the client's consent. However, in Nixon's case he did not plead guilty but rather conceded guilt during the trial. The Florida Supreme Court erred in thinking the trial strategy was the equivalent of a guilty plea. Justice Ginsburg noted that during the trial the defense attorney had retained the rights to cross-examine witnesses for the prosecution, to object to the introduction of evidence, and to note any errors by the trial court that could lead to an appeal.

Justice Ginsburg placed great weight on Nixon's passivity and silence leading up to trial. Corin had sought his client's approval for the concession-of-guilt strategy, so Nixon could not argue that he had been misled or surprised. Turning to the line of cases that analyze the actual conduct of an attorney, Ginsburg concluded that Corin had acted reasonably in employing the trial strategy. He had not failed to advocate for Nixon. Therefore, the Court rejected the need for a "blanket rule demanding the defendant's explicit consent."

Medellin v. Dretke

In June 1993, Jose Medellin, a Mexican national, and six other members of the "Blacks and Whites" gang-raped and murdered two young girls in Texas, then bragged about it to family members. One family member called the police, and all gang members were eventually arrested. Medellin was tried and convicted in a Texas state court and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. The convoluted procedural and appellate maze that followed is the essence of the matter that eventually made its way to the U.S. Supreme Court in Medellin v. Dretke, 544 U.S. __, 125 S.Ct. 2088, __ L.Ed.2d __,(2005).

Following the Texas Court of Criminal Appeals decision, Medellin had written a letter to Mexican consular authorities, who began assisting him. He filed a state habeas corpus action, claiming for the first time that Texas had failed to notify him of his right to access to the Mexican Consulate as required by the Vienna Convention. The state trial court rejected the claim, and this decision also was affirmed on appeal to the Texas Court of Criminal Appeals. Medellin then filed a federal habeas corpus petition in the U.S. District Court for the Southern District of Texas. He raised the same claim, but the federal district court also denied the petition.

Meanwhile, the Mexican government initiated proceedings against the United States in the International Court of Justice (ICJ), alleging violations of the Vienna Convention on behalf of more than 50 Mexican nationals facing the death penalty in the United States, including Medellin. Case Concerning Avena and other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. No. 128 (later referred to as the Avena decision). The ICJ determined that the Vienna Convention indeed guaranteed individually enforceable rights of access to the Mexican consulate. Its decision in the Avena case held that the United States must "provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals" to determine whether the violations "caused actual prejudice" without allowing procedural default rules to bar such a review. The ICJ denied Mexico's request that the convictions and sentences be nullified. Both Mexico and the United States voted with the majority in the 14-1 decision; Venezuela was the lone dissenting member.

The ICJ decision, issued in March 2004, occurred while Medellin's application for a certificate of appealability (on the federal habeas claim) to the U.S. Court of Appeals for the Fifth Circuit was still pending. The appellate court subsequently denied the application, based on Medellin's procedural default, in addition to its prior holdings in other cases in which it ruled that the Vienna Convention did not create individually enforceable rights. The Court of Appeals acknowledged the ICJ decision but gave it no effect.

The U.S. Supreme Court granted certiorari on two questions. First: Is a federal court bound by the ICJ's ruling that U.S. courts must reconsider Medellin's claim for relief under the Vienna Convention on Consular Relations, without regard to procedural default? Second: Should a federal court give effect to the ICJ's decision, as a matter of judicial comity and uniform treaty interpretation?

But in May 2005, after hearing oral arguments a few months earlier, the Court dismissed the writ of certiorari as improvidently granted. This, however, was based on several developments that had arisen. First, and most importantly, President George W. Bush had issued a memorandum stating that the United States would meet its international obligations under the Avena judgment by "having State courts give effect to the [ICJ] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision." Next, based on the above, Medellin's attorneys filed a successive state habeas corpus petition, citing both the Avena decision and the President's memorandum as separate bases for relief that were had not been available at the time of the first state habeas action.

Third, the high court cited several threshold issues that could independently preclude federal habeas corpus relief for Medellin, and render the Court's consideration of the questions presented as advisory or academic. For example, the Court noted that even accepting the ICJ's construction of consular access rights, a violation may not be cognizable in a federal habeas corpus proceeding. Second, a federal habeas corpus is only available if a state court adjudication on the merits "was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. 2254(d). Additionally, a habeas corpus petitioner generally cannot enforce a new rule of law . As to appellate review of habeas petitions in general, a certificate of appealability is available only where there is a "substantial showing of the denial of a constitutional right.

Finally, Medellin could seek federal habeas relief only after his claims had been exhausted in state courts. To gain relief under either the President's memorandum or the ICJ decision, Medellin would have to show that he exhausted all available remedies within state courts. Since the Texas courts could provide Medellin with the review that he sought pursuant to the presidential memorandum and ICJ decision, the Court dismissed the writ.

The per curiam decision included a concurring opinion from Justice Douglas Ginsburg, and a four-justice dissent from Justices Sandra Day O'Connor, John Paul Stevens, David Souter, and Stephen Breyer that would have required the Fifth Circuit to address Medellin's international law claims.

Rompilla v. Beard

Late in its 2004-2005 term, the U.S. Supreme Court, by a narrow 5-4 decision, reversed the U.S. Court of Appeals for the Third Circuit and held that a convicted capital defendant was prejudiced by ineffective counsel at sentencing. According to the Court, counsel had failed to investigate mitigating evidence to counter the state's evidence of aggravating factors, and instead relied on statements made by the defendant and members of his family, merely asking for mercy at sentencing. Instead of mercy, Ronald Rompilla was sentenced to death. The strong dissent opined that the majority effectively characterized "two committed criminal defense attorneys as ineffective," and labeled the professional work done by three mental health experts as incompetent.

In Rompilla v. Beard,, 545 U.S. __, 125 S.Ct. __, __ L.Ed.2d. __ (2005), defendant Rompilla was convicted in a Pennsylvania state court of murder and other crimes. Two public defenders had been assigned to represent him in the matter. During sentencing, prosecutors presented evidence of aggravating factors, including that the murder was committed during the commission of another felony ; that it was committed by torture; and that Rompilla had a significant history of felony convictions involving the use or threat of violence.

In mitigation, defense counsel presented five members of Rompilla's family who argued residual doubt and beseeched the jury for mercy. The jurors assigned the greater weight to the aggravating factors and sentenced Rompilla to death. The Supreme Court of Pennsylvania affirmed both conviction and sentence.

New counsel for Rompilla filed post-conviction relief, claiming among other things, ineffective assistance by trial counsel. Rompilla's new attorneys argued that his former counsel failed to present significant mitigating evidence about Rompilla's childhood, mental capacity and health, and history of alcoholism. The state court disagreed and found that Rompilla had adequate legal representation, and the denial of habeas relief was also confirmed by the state high court. In reaching that conclusion, the state considered counsel's performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court held that ineffective assistance of counsel meant deficient performance that resulted in prejudice, with performance being measured against an objective standard of reasonableness under prevailing professional norms.

Rompilla's attorneys next raised inadequate counsel claims in a federal habeas corpus petition. The federal district court agreed with them, holding that the state high court had unreasonably applied Strickland as to the penalty phase of the trial. The federal district court found that Rompilla's trial counsel had not investigated "pretty obvious signs" of Rompilla's troubled childhood and his mental illness and alcoholism. Instead, counsel had relied on Rompilla's own assessment of an unexceptional background. The district court set aside the death sentence.

The Third Circuit, divided in opinion, reversed. The majority found nothing unreasonable in the state court's application of Strickland, in that counsel had interviewed Rompilla and his family members, as well as consulted with three mental health experts. Although the appellate court noted that counsel failed to unearth "useful information" in Rompilla's school, medical, police, and prison records, that failure was justifiable when their other efforts gave them no reason to believe that further research would yield anything helpful. The court found these facts distinguishable from a subsequent Supreme Court case, Wiggins v. Smith, 539 U.S. 510 (2003).

But the majority of the U.S. Supreme Court reversed again, siding with Judge Delores Sloviter's dissenting opinion in the Third Circuit decision. Writing for the narrow majority at the Supreme Court level, Justice Souter opened with,

This case calls for specific application of the standard of reasonable competence required on the part of defense counsel by the Sixth Amendment. We hold that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.

Because the original state high court decision on review had never reached the question of "prejudice" under Strickland, the Supreme Court reviewed this element de novo, and found that counsels' lapse was prejudicial to Rompilla. Had counsel looked at the prior conviction file they knew prosecutors would rely on, they would have discovered a range of mitigation leads that no other source had opened up. The undiscovered mitigating evidence, later found by post-conviction counsel, included organic brain damage and childhood problems probably related to fetal alcohol syndrome. School and juvenile records showed evidence of an abusive home life as well. In the eyes of the majority opinion, this evidence "might well have influenced the jury's appraisal" (quoting Wiggins)of Rompilla's culpability. The likelihood of a different result, if such evidence had gone in, was "sufficient to undermine confidence in the outcome" actually reached at sentencing. (Quoting Strickland, 466 U.S. at 694).

Rompilla's counsel also had argued prejudicial error in the trial court's failure to instruct the jury, under Simmons v. South Carolina, 512 U.S. 154 (1994), that in a capital case, the only alternative to a death sentence was life imprisonment without parole. In Simmons, the Court held that a state could not advance generalized arguments about a capital defendant's future dangerousness without a jury instruction advising that, if given life imprisonment, the defendant would never be eligible for parole. But the Rompilla Court focused on the ineffective counsel argument, expressly noting that no reasonable lawyer would have foregone examination of the file, believing he could do as well by merely asking the defendant or family members what they recalled. Nor would a reasonable attorney equate possible searches for school reports, juvenile records, or evidence of drinking habits, with reviewing a prosecutor's file to see what the prosecutor knows.

Justice Anthony Kennedy wrote a scathing dissent, in which he was joined by Chief Justice Rehnquist and Justices Scalia and Thomas. In addition to the stated disagreement with the majority's conclusion of less than competent counsel and mental health expertise, the dissent added,

Finally, even if the Court could justify its distortion of Strickland,, Rompilla still would not be entitled to relief. The Court is able to conclude otherwise only by ignoring the established principle that it is the defendant, not the State, who has the burden of demonstrating that he was prejudiced by any deficiency in his attorney's performance.

Roper v. Simmons

The U.S. Supreme Court, in an historic decision, ruled that juveniles who are under the age of 18 when they commit capital crimes may not be sentenced to death. The Court, in Roper v. Simmons, __U.S. __, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), used the Eighth Amendment's Cruel and Unusual Punishments Clause to reach its conclusion, finding that "evolving standards of decency," as well as the fact that few nations in the world execute juveniles, mandated its ruling. The decision used much of the same reasoning found in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which a closely divided Court barred the execution of mentally retarded persons.

Christopher Simmons was convicted by a Missouri jury of the premeditated drowning murder of a woman. The crime had been committed during the course of a home burglary . Simmons, who was 17 and a junior in high school at the time he committed the murder, had spoken with his two teenage friends about killing someone during a burglary by tying the victim up and throwing her off a bridge. He also told his accomplices that they could "get away with it" because they were juveniles. Simmons carried out his plan using duct tape to bind the woman's hands and to cover her mouth and eyes. Simmons and one of his friends (the other boy did not participate) placed the woman in her minivan and drove it to a state park, where they walked her out onto a railroad trestle and then pushed her off the bridge into the Meramec River. The victim's body was discovered the next day. The following day, Simmons was arrested for the murder. He quickly confessed and agreed to be videotaped reenacting his actions at the crime scene.

Simmons's attorneys did not contest his client's guilt at trial, seeking instead to prevent Simmons from receiving the death penalty. The prosecution cited a number of aggravating factors that justified the imposition of capital punishment, including the allegation that Simmons's crime was "outrageously and wantonly vile, horrible, and inhuman." Simmons's attorneys introduced evidence that he had had no prior convictions nor any prior criminal charges filed against him. His attorneys used his age as a mitigating factor during closing arguments, contending that as a juvenile he was not "responsible enough" to merit a death sentence. The prosecutor countered that Simmons's age made the savagery of the crime even worse. The jury sided with the prosecutor and recommended that the death penalty be imposed.

The Missouri Supreme Court upheld Simmons's conviction and death sentence but reconsidered the merits of the case in a postconviction proceeding after the U.S. Supreme Court issued its ruling in Atkins v. Virginia, which barred the death penalty for mentally retarded persons. Even though the U.S. Supreme Court had upheld the execution of 16- and 17-year-old juveniles in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Missouri Supreme Court adopted the reasoning of Atkins and ruled that it was unconstitutional to impose the death penalty on juveniles. The state appealed to the U.S. Supreme Court.

The Court, in a 5-4 decision, upheld the state court's decision and announced a national ban on the execution of juveniles. Justice Anthony Kennedy, in his majority opinion, based this conclusion on the Eighth Amendment's prohibition against cruel and unusual punishments. Individuals cannot be subjected to excessive criminal sanctions out of concern for the "dignity of all persons." He noted that the Court had developed a method for reviewing criminal sanctions based on "evolving standards of decency that mark the progress of a maturing society." A prior decision in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) had barred the execution of any offender under the age of 16 at the time of the crime. Kennedy found that the same reasons for barring the execution of those under age 16 also applied to those persons under age 18. These reason included the fact that juveniles are less culpable for their acts and not as "morally reprehensible" because of their youth. In addition, juveniles lack maturity and have an underdeveloped sense of responsibility, they are more susceptible to peer pressure and negative influences, and their character is not as "wellformed" as that of adults. Because of these differences, Justice Kennedy found suspect "any conclusion that a juvenile falls among the worst offenders."

Justice Kennedy also reviewed the popularity of juvenile executions by the states. As in Atkins, the decline that he noted in actual executions signaled an emerging national consensus against the application of the death penalty to juveniles 16 and 17 years of age. Although 19 states had laws permitting the execution of juveniles, only three (Texas, Oklahoma, and Virginia) had executed juveniles since 1994. This also meant that 31 states either barred juvenile executions or did not have the death penalty for any criminal defendant. In addition, he pointed out that only seven other nations had executed juvenile offenders since 1990 and that since then those countries had either abolished capital punishment for juveniles or had disavowed its use. This international evidence reinforced the majority's view that evolving standards of decency required the absolute bar on executing juveniles.

Justice Sandra Day O'Connor, in a dissenting opinion, contended that the Court had gone too far in barring all juvenile executions. Instead, the propriety of such punishment should be handled on a case-by-case basis. Justice Antonin Scalia, in a biting dissent joined by Chief Justice William Rehnquist and Justice Clarence Thomas, claimed the decision made "a mockery" of constitutional precedent and that it was based "on the flimsiest of grounds." He contended that there was no national consensus to support the majority's conclusion that the states were moving away from executing juveniles. Instead, "The court thus proclaims itself sole arbiter of our nation's moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures."

Smith v. Texas

The U.S. Supreme Court has mandated that criminal defendants convicted of capital crimes must be allowed to present mitigating evidence to the jury during the penalty phase of a trial in order to try to persuade jurors not to impose the death penalty. The Court regularly reviews the fairness of death penalty cases, and at times, overturns a death sentence when court procedures fail to give full weight to the defendant's mitigating evidence. Such was the case in Smith v. Texas, __U.S. __, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004), where the Court threw out a death sentence because the trial judge had issued a jury instruction that made it difficult for the jurors to consider the defendant's mitigating evidence.

A Texas jury convicted LaRoyce Smith of murdering one of his fast-food restaurant co-workers during a robbery attempt at the restaurant. Smith had pistol-whipped and stabbed the woman and then shot her in the back. After completing the guilt phase of the trial, the jurors heard evidence during the penalty phase. For the state to obtain a death penalty recommendation from the jury, the jurors had to decide two special issues: (1) whether Smith had killed the woman deliberately; and (2) whether Smith posed a continuing danger to others. The prosecutor introduced evidence to show that Smith had killed his co-worker deliberately and cruelly. Smith had known his victim yet had stabbed her repeatedly in numerous places on her body. On the second special issue, the prosecutor pointed out that Smith had been convicted of a misdemeanor assault and suggested that Smith had broken several drug laws.

Smith's attorney introduced several pieces of mitigating evidence. The jury heard testimony that Smith had suffered from learning and speech disabilities from an early age, that his IQ was only 78, and that he had attended special-education classes. Despite these impediments, Smith had been a responsible student. In addition, Smith's father was a drug addict who had been involved in criminal activities. Finally, the defense attorney emphasized that Smith was only 19 when he committed the murder, suggesting that Smith was capable of rehabilitation.

The trial judge issued a set of jury instructions following closing arguments, including an oral supplemental "nullification instruction." The jury was directed to consider the mitigating evidence and give it as much weight as it wanted. The instruction also informed the jury that if it believed the prosecution had proved beyond a reasonable doubt the two special issues but also believed from the mitigating evidence that Smith should not be sentenced to death, then the jury must answer "No" to one of the special issues. In effect, the jury could "nullify" a special issue. The jury verdict form did not mention nullification or mitigating evidence. It only asked whether Smith had acted deliberately and whether there was a likelihood that he would commit criminal acts of violence in the future and thus pose a threat to society. The jury was allowed to give only "Yes" and "No" answers. The jury answered "Yes" to both questions, and Smith was sentenced to death.

The Texas Court of Criminal Appeals upheld Smith's conviction and sentence, rejecting Smith's claim that the jury instruction was unconstitutional because the consideration of the special issues did not permit the jury to give effect to his mitigating evidence. Smith then filed for a writ of habeas corpus in the Texas courts, renewing his jury-instruction argument. The appeals court again rejected his claims, and Smith appealed to the U.S. Supreme Court.

The U.S. Supreme Court, in a 7-2 decision, overturned the state appeals court ruling and found that the nullification instruction was invalid. In a per curiam opinion (i.e., an opinion not signed by any of the justices), the Court found that the appeals court had improperly denied the relevance of Smith's mitigating evidence, in particular his low IQ and special-education school placement. The Texas appeals court had concluded that Smith was not severely disabled and that there was no connection between his troubled life and limited mental capacities, and the murder. The Supreme Court held that all of Smith's mitigating evidence was relevant and that the appeals court should have examined the nullification instruction more closely.

The Court was troubled by the nullification instruction because it presumed that jurors would find it "logically and ethically impossible" to follow both sets of instructions. The mitigating evidence did not fit into the two categories described in the special issues, thus making it difficult to give full weight to the mitigating evidence. In addition, jurors who wanted to answer one of the special issues falsely so as to give effect to the mitigating evidence would have had to violate their oath to render a "true verdict." Therefore, the Court ruled that forcing the jury to give a false answer to a special issue in order to avoid a death sentence had been an error. Mitigating evidence should be considered on its own merits in deciding whether to impose the death penalty.

Capital Punishment

views updated May 29 2018


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

Report Renews Call for a Nationwide

Moratorium on the Death Penalty

Following a study in eight states, the American Bar Association in 2007 issued a report that called for a nationwide moratorium on capital punishment in the United States, which would last until the states make improvements in their systems. According to the report, most of these states operate with capital defense systems that are underfunded and staffed with lawyers who are unqualified and who lack the resources to provide adequate defenses for death row inmates.

This is not the first time that the ABA has called for a stoppage in executions. Believing that jurisdictions that allow the death penalty operate with neither fairness nor accuracy, the ABA on February 3, 1997 issued a moratorium on capital punishment similar to the one issued in 2007. The ABA has focused primarily on two key points: first, that states ensure that death penalty cases are handled fairly and impartially, in accordance with due process; and second, that the states minimize the risk that innocent persons may be executed.

During the fall of 2001, the ABA established the Death Penalty Moratorium Implementation Project, which has engaged in a number of studies related to capital punishment since its establishment. During the same year, the ABA's Section on Individual Rights and Responsibilities issued a publication entitled Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States. This publication establishes protocols for seven aspects of death penalty administration, including: (1) defense services; (2) procedural restrictions and limitations on state post-conviction and habeas corpus proceedings; (3) clemency proceedings; (4) jury instructions; (5) an independent judiciary; (6) racial and ethnic minorities; and (7) mental retardation and mental illness. The ABA's Death Penalty Moratorium Implementation Project also reviews five additional areas, including preservation and testing of DNA evidence; identification and interrogation procedures; crime laboratories and medical examiners; prosecutors; and the direct appeal process.

In 2004, the ABA established teams of state-based legal experts to review capital punishment systems in eight states. The ABA established these teams in the states of Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee. The teams generally consisted of judges, state legislators, prosecutors, defense attorneys, state bar association leaders, and law professors. Five of these eight teams asked their own state government leaders to temporarily halt executions until the teams could complete their analyses. None of these states did so, however.

These teams prepared independent assessments of the capital punishment systems in these states and determined whether these states complied with criteria that the ABA had established. In many instances, the teams could not find sufficient information to determine whether these states indeed complied. In several other areas, however, the teams found a number of problems that the ABA characterized as serious concerns. After releasing reports covering the various states, the ABA on October 28, 2007 released a report that called for the nationwide moratorium.

The preservation of DNA evidence was cause for concern in several of the states. The ABA recommends that states preserve all biological evidence through the entire legal process and after release from prison or execution. The purpose of this recommendation is to reduce the possibility that evidence that could prove a defendant's innocence could be destroyed. However, fewer than half of the states that were studied complied with this recommendation. A second concern regarding DNA is that states draft DNA testing statutes too narrowly, requiring applicants to comply with strict filing deadlines and other procedures.

The ABA teams were also troubled by actions of law enforcement personnel and policies regarding crime labs. The report concluded that most states do not require law enforcement agencies to record custodial interrogations, which could reduce problems related to false confessions. Crime laboratories also received criticism, as most that were studied failed to utilize state-of-the-art DNA testing techniques. In fact, most of the states in the study had at least one “serious incident” of mistake or fraud occurring in a crime lab. According to the report, many states do not sufficiently fund crime labs, and states in general do not require accreditation of the crime labs or medical examiner offices.

The report found a number of problems with prosecutors and the role of defense counsel in capital cases. The teams determined that states generally do not have policies requiring prosecutors' offices to establish policies on the exercise of prosecutorial discretion. Moreover, states have not adopted policies pertaining to the evaluation of cases “that rely on eyewitness identification, confessions, or the testimony of jailhouse snitches, informants, and other witnesses who receive a benefit.” The report noted that on the defense side, the judiciary remains primarily responsible for appointing defense counsel, and that capital defense attorneys who are appointed by the courts are paid less than $50 per hour, a sum the report described as “woefully inadequate.”

The ABA teams were critical of the procedures used in post-conviction proceedings. Many states make it difficult for defendants to obtain discovery materials after the convictions and also make it difficult for a defendant to obtain an evidentiary hearing during the post-conviction phase. The report was likewise critical of the procedures and policies pertaining to direct appeals in capital punishment cases and in the clemency processes of most of these states. The clemency process is the final stage of review that is available, but in most states, the person making clemency decisions is not required to give reasons for the decisions.

In addition to concerns related to jury instructions, judicial independence, and mental retardation and mental illness, the report cited racial problems related to capital punishment cases. Although all of the states have racial disparities in their capital systems, especially as those statistics relate to the race of the victims, these states have not kept data necessary to analyze or quantify the problems with bias or identify the causes of this bias. The report concluded that these states are doing little, if anything, to rectify problems with racial bias.

The ABA's calls for a halt to executions has not met with uniform support. In 2006, when a 21-member team concluded that Georgia's death penalty system was inadequate, the state refused to do so. A spokesperson for the state's attorney general said, “Our office continues to review the ABA report, but this appears to be a lobbying packet put together in an effort to have the Legislature make changes to the state process.” Other critics focused their attention on the ABA's politics. According to William “Rusty” Hubbarth, the vice-president for legal affairs for Justice for All, a Texas victims' advocacy group, “The ABA has always been a very, very liberal organization. They have spent much more time worrying about the rights of the defendant, rather than the rights of the victims, or the rest of society.”

ABA leaders have stood by their conclusions. “We just do not have confidence in the capital justice system after studying it,” said Stephen Hanlon, chair of the Death Moratorium Project. “In determining who gets the death penalty, all too frequently, it seems to be not the person who has committed the worst crime, but the person who has the worst lawyer.”

Death Penalty Developments

The debate over capital punishment in the United States and in the international community continued unabated in 2007 and 2008. The Supreme Court stayed the execution of 18 inmates and other states placed a moratorium on executions while the Court considered whether death by lethal injection constituted cruel and unusual punishment . In April 2008 the Court upheld the legality of lethal injections and executions resumed. However, only one of the several states that debated eliminating the death penalty—New Jersey—formally abolished it in 2007. On another front the Nebraska Supreme Court ruled that death by electrocution constituted cruel and unusual punishment, becoming the last death-penalty state to use the electric chair as the sole means of execution. Finally, the UNITED NATIONS adopted a non-binding resolution in December 2007 calling for a worldwide moratorium on capital punishment.

After the Supreme Court accepted review in 2007 of Baze v. Rees, which challenged the constitutionality of lethal injections, it received petitions from death-row inmates seeking stays of their executions until the issue could be resolved. The Court granted 18 stays and, by doing so, signaled to all death-penalty states that they should stop executions as well. The states complied and there began a seven-month moratorium on executions. The Supreme Court issued its decision in Baze on April 16, 2008. The Court, in a 7–2 decision, rejected the challenge by two inmates that the three-drug combination used to execute prisoners was unconstitutional. However, the Court could not issue a majority opinion as to the reasons why the method passed constitutional muster. Seven separate justices wrote their own opinions. Within hours of the decision's release 11 states announced that they would immediately resume executions. On May 6 the state of Georgia ended the moratorium by executing William Earl Lynd by lethal injection.

In December 2007 the state of New Jersey repealed its death penalty, becoming the first state to abolish capital punishment since the Supreme Court restored it in 1976. The law replaces the death penalty with life imprisonment without parole. Though advocates of abolition pointed to numerous cases where condemned inmates had been exonerated by DNA evidence, an added reason was that no inmate had been executed since the state reintroduced the death penalty in 1982. In addition, the state could save money by making the change. Keeping an inmate on death row cost the state $73,000 per year, while inmates in the general population cost $40,000 per inmate per year. Repealing the death penalty was expected to save New Jersey as much as $1.3 million per inmate over his lifetime. The eight prisoners on New Jersey's death row had their sentences changed to life imprisonment with no parole.

In February 2008 the Nebraska Supreme Court ruled that under its state constitution the use of the electric chair constituted cruel and unusual punishment. Nebraska had been the last state that mandated electrocution as the sole method of execution. The court concluded that there had never been a thorough and scientific examination on whether electrocution inflicts intense pain on the inmate. Reviewing the evidence of competing expert witnesses, the justices found that there was a strong probability that the prisoner did not lose consciousness and brain function immediately. The court believed the defense experts' testimony that high voltage caused pain in several ways apart from “the electrical burning that is occurring in the body.” It dismissed the trial court's claim of instantaneous and irreversible brain death as a “myth.” The court gave the legislature the opportunity to propose another means of execution. The Nebraska legislature rejected the repeal of capital punishment in March 2008 but did not consider a new means of execution. Nebraska Governor Dave Heineman directed the state attorney general to determine whether the Nebraska Supreme Court ruling should be appealed to the U.S. SUPREME COURT, try to convince the legislature to enact lethal injection as the method of execution, or both.

In December 2007 the General Assembly of the United Nations voted 104 to 54, with 29 abstentions, to adopt a non-binding resolution supporting a moratorium on capital punishment. The vote culminated a 1-year campaign that seeks to identify capital punishment as a human rights issue rather than a criminal law issue. According to Amnesty International, 133 countries have abolished the death penalty in law or practice. In 2006 only 29 countries carried out executions, of which 91 percent took place in China, Iran, Iraq, Pakistan, Sudan, and the United States. The number of executions worldwide declined from 2,148 in 2005 to 1,591 in 2006.

Missouri Law Shields Identity of Executioners

On June 30, 2007, Missouri Governor Matt Blunt signed into law a bill (HB820/SB 258, 94th Gen. Assem., 1st Reg. Sess.) that required the identities of execution team members to remain confidential, and made all records that could identify a team member “privileged,” i.e., neither subject to discovery or subpoena in litigation, nor subject to release in response to requests by the public at large. Although several other states also shielded the identity of team members, Missouri's law was considered the first to impose civil penalties for disclosure in violation of its provisions. It further provided members of the execution team the right to sue for compensatory and punitive damages from anyone who disclosed the member's participation in an execution. However, the new law also established Missouri's lethal injection protocol as an open record.

The law was prompted in part by a St. Louis Post-Dispatch story the previous summer that disclosed the identity of a Missouri doctor who oversaw state executions and whose professional record included revocation of staff privileges at two hospitals and twenty pending malpractice lawsuits against him. Although the doctor was captioned “Dr. Doe” in a related lawsuit, the Post-Dispatch investigated and then identified him by name. The doctor had originally come under scrutiny after admitting that he sometimes altered the amount of anesthetic given to condemned inmates in response to discovery interrogatories in a pending lawsuit.

Following the St. Louis Post-Dispatch story, three St. Louis-area state legislators who were members of a committee that oversaw the Department of Corrections were interviewed by the newspaper. The committee had the authority to investigate the department as well as compel testimony from officials. The legislators advised that they intended to raise questions within the committee, but the chairman advised that an official inquiry was unlikely, citing the limited information against the male nurse, including the absence of any disciplinary action taken against him by the state board of nursing.

This conflict between the public's right to oversee how government implements capital punishment, and the need to protect the identity of members of an execution team resulted in a judicial compromise in Taylor v. Crawford, 05-4173-CV (W.D. Mo. 2006). In that case, in response to discovery requests (interrogatories), the court ordered that the state disclose “the qualifications of any medical personnel who have participated in executions, without disclosing their identities or any confidential information.” (The State had argued that disclosure of individual identities would be inappropriate because of security concerns for them as well as for the prison.)

The new Missouri law went into effect on August 28, 2007. However, that did not stop five death row inmates from filing papers in January 2008 to learn about their would-be executioners. The petition was part of an ongoing lawsuit challenging not only the shielding of personal information of the execution team members, but also the state's lethal injection protocol in general. Clemons v. Crawford, No. 573636-4015 (W.D. Ct. Missouri).

The petition, filed by attorneys in federal district court in Kansas City, Missouri, cited yet another Post-Dispatch revelation that a male nurse on the execution team had been on criminal probation for an incident of stalking. The petition alleged that such circumstances raised questions about the state's screening procedures as well as the nurse's “temperament and suitability” to be on the execution team. The petition further alleged that, in light of Missouri's new law protecting such disclosure, the petitioners'/inmates' right to such information in a federal lawsuit superceded state law. It argued that the inmates should not have to rely on the new media to learn about executioners' backgrounds.

Responsive pleadings by attorneys in the Missouri Attorney General's office (which represented the Department of Corrections) nonetheless invoked Missouri's 2007 law as substantively barring all requested disclosures. The responsive pleadings also argued that the requested information was subject to attorney-client privilege . But lawyers for the convicted killers represented in the suit, Reginald Clemons, Richard Clay, Jeffrey Ferguson, Roderick Nunley, and Michael Taylor, stated they were willing to accept anonymous depositions, keeping the names of the executioners out of court records.

In March 2008, the district court granted part of the inmates' motion to compel evidence, allowing the inmates to submit written interrogatories to two Department of Corrections executioners, regarding their background and training. It denied the request for live depositions. It also ordered the release of documents involving the recently revised lethal injection protocol. In May 2008, the court granted Defendants' (the Department of Corrections, et al) Motion for Reconsideration of the court's previous (March) order compelling discovery. It also ordered the scheduling of dispositive motions, in light of the U.S. Supreme Court's April 2008 decision that rejected a similar Kentucky-based challenge to lethal injection as an execution method. Baze v. Rees, No. 07-5439. The death penalty was effectively on moratorium in all states pending the high court's decision. Following the release of that decision, part of the Missouri case became moot, but the challenge regarding release of information pertaining to the executioners remained. The district court noted that the requested documents might shed light on the Department of Correction's “mental state” regarding the revised protocol provisions.

State v. Mata

The means of executing individual for their crimes has changed over the past four centuries, as succeeding generations come to believe certain methods are inhumane, and, in the case of the United States, cruel and unusual punishments. In the late nineteenth century in the U.S., hanging was the preferred method of execution. However, with the introduction of electricity, advocates of the new technology claimed that death by electrocution in an “electric chair” was more humane than breaking a person's neck. In In 1890 the U.S. Supreme Court allowed the state of New York to use the electric chair, which led many states to adopt this method. In the Twentieth Century electrocution and death by poisonous gas were the most popular means of capital punishment until the 1990s, when death by lethal injection became the dominant method. By 2008 only the state of Nebraska mandated the use of the electric chair as the sole method of execution, but the Nebraska Supreme Court, in State v. Mata, 745 N.W.2d 229 (Neb. 2008), ruled that under its state constitution electrocution was cruel and unusual punishment . Seven states still allow inmates to choose the electric chair over lethal injection.

Raymond Mata, Jr. was convicted of murder in 2000 and sentenced for death. Mata appealed both his conviction and the means the state would use to execute him. The Nebraska Supreme Court upheld Mata's conviction but in a lengthy opinion ruled that the time had come to end the use of the electric chair. In a 6 to 1 decision the court held that “electrocution inflicts intense pain and agonizing suffering.” Justice William Connolly, writing for the majority, noted that Mata was not challenging the constitutionality of the death penalty but whether the method of execution mandated by state law was constitutional. Nebraska, like all other states, has adopted the U.S. Constitution's provision against inflicting cruel and unusual punishment.

Justice Connolly acknowledged that the Nebraska Supreme Court had previously ruled that electrocution was not cruel and unusual punishment. However, the court now had the opportunity, for the first time, “to review a factual record showing electrocution's physiological effects on a prisoner.” Likewise, the U.S. Supreme Court's 1890 decision was not based on objective evidence but state courts' “factual assumptions” based on “untested science.” This new factual record, coupled with the reality that only Nebraska used electricity as the sole means of execution, directed the court's analysis.

In reviewing previous U.S. Supreme Court rulings on electrocution, the court identified three shortcomings in this jurisprudence : (1) limited knowledge about electrocution's effects on the human body; (2) the states' desire to find a more human way of execution than hanging; and, (3) the Court's view, when electrocution was first introduced, that the Eighth Amendment's bar on cruel and unusual punishment was not intended as a restraint on the states' determinations of punishment. As to the last point, the Supreme Court has now applied the Eighth Amendment to the states through the Fourteenth Amendment.

Justice Connolly stated that the “baseline criticism in a challenge to a punishment is whether it imposes torture or a lingering death that is unnecessary to the mere extinguishment of life.” Because it is impossible to know with certainty that electrocution causes unnecessary pain, courts must deal with probabilities. Evidence introduced at trial by the state and the defendant dealt with the probable effects of electricity on the human body. The state argued that prisoners lose brain function and consciousness instantaneously, thereby making them incapable of feeling unnecessary pain. Defense experts, however, persuasively showed that this was not the case and that there was no medical evidence of mass damage to the brain. In fact, there as evidence that 20 percent of the prisoners electrocuted in Nebraska between 1920 and 1977 were still breathing or alive after the initial application of current. Moreover, the court believed the defense experts' testimony that high voltage caused pain in several ways apart from “the electrical burning that is occurring in the body.” Justice Connolly dismissed the trial court's claim of instantaneous and irreversible brain death as a “myth.”

Having ruled electrocution unconstitutional, the court stayed Mata's death sentence. It gave the state legislature the opportunity to propose a new method of execution and be prepared to demonstrate that is is constitutionally acceptable. In March 2008 the Nebraska legislature defeated a bill that would have repealed capital punishment but it had yet to take up the issue of what would replace the electric chair as the method of execution.

New York Senate Passes Bill to Reinstate Death Penalty

In early 2008, the New York State Senate introduced and passed bills to reactivate the death penalty in that state. No executions had been effected in that state since 2004, based primarily on two developments. First, New York's general death penalty statute had been declared unconstitutional by the state Court of Appeals in 2004 (regarding a problematic jury instruction). Second, while various legislative attempts to rewrite the state law had been made, those efforts were interrupted by a U.S. Supreme Court stay on executions in October 2007, pending its further determination in Baze v. Rees, No. 07-5439 (2008), which challenged certain lethal injection procedures as cruel and unusual punishment . The Court's stay effectively created a de facto moratorium on all pending state executions nationwide. As of September 2007, a vast majority of states (at least 36 of 50) and the federal government had death penalty statutes/laws in effect.

Meanwhile, in October 2007, the New York State Court of Appeals, in People v. Taylor, refused to make an exception to its 2004 ruling (in People v. LaValle, 817 NE2d 341) that New York State's death penalty statute was unconstitutional. The state law was struck by the court because of a flawed jury instruction that appeared to advise capital jurors that if they did not choose the death penalty, the judge would sentence the defendant to life with the possibility of parole in 20 to 25 years. It was successfully argued that this law effectively coerced jurors into meting out death sentences rather than risking the chance that convicted killers might be freed on parole in the future.

Following the April 2008 U.S. Supreme Court's decision in Baze, (ruling that the subject lethal injection was constitutional and valid), state prosecutors around the country sought to move forward with executions for death row inmates that had been stayed for several months pending the Court's decision.

Also following the Baze, decision, the New York State Senate passed S. 6414 in May 2008 (previously S. 319), reinstating the death penalty in New York for the intentional murder of a police or peace officer or any employee of the Department of Correction Services. Joining it was a correlative bill, S. 4632, a general death penalty law that was actually passed in June 2007 to replace the existing one (struck in October), but put on hold pending the Supreme Court's ruling in Baze.

This time around, the new legislation in both New York bills was carefully drafted to address the concerns that had caused the previous statutory provision to fail. The new wording in both bills made certain that if a jury were deadlocked and unable to agree on a death penalty sentence, a sentence of life without parole would be imposed, and juries would know this prior to their sentencing deliberations. Further, the general death penalty bill, S. 4632, required that juries be given a third option when sentencing convicted killers, a sentence of life in prison with the possibility of parole. As of June 2008, both bills had been passed in the state senate and sent to the state's legislative assembly.

Despite media coverage implying an aversion to the death penalty by New York juries, the state senate, in a June 20, 2007 press release, noted that the majority of New Yorkers consistently supported the death penalty. In that press release, State Senate Majority Leader Joseph L. Bruno recognized the death penalty as a strong deterrent to crime. “When the death penalty was reinstituted, the number of murders and violent crimes in New York decreased dramatically,” he stated. Also noted in the press release was a 2003 study by Emerson University in Boston that concluded an average of eighteen murders were deterred for each execution. The press release also cited a 2006 study by the University of Houston which showed that a moratorium on executions in the state of Illinois in 2000 led to 150 additional homicides over the following four years.

But the non-profit organization, New Yorkers Against the Death Penalty (NYADP)argued the opposite. It claimed that over ten years, the death penalty in New York wasted $200 million in taxpayer dollars, was not imposed fairly or reliably, and created risk of innocent persons being executed. It also stated that New York had more than 50 death-eligible federal cases awaiting disposition by the U.S. Attorney General's office, potentially more than any other state. In arguing that New Yorkers were hesitant to impose death penalties, NYADP noted that records compiled by the Federal Death Penalty Resource Counsel Project showed that federal prosecutors in New York State had asked juries to impose death sentences 19 times since 1988, but in only one case did a jury sentence the defendant to execution.

As of June 2008, the newly-worded general death penalty bill, now identified as state assembly No. AO8157, was still pending final vote.

Different Results for the Mentally Ill in Tennessee and South Carolina

Theoretically, mentally-deficient capital criminals have been protected from death penalty sentences for sometime. In 1986, the U.S. Supreme Court ruled as unconstitutional the execution of an insane person. Ford v. Wainwright, 477 US 399. More recently, the high court also ruled as unconstitutional the execution of a mentally retarded person. Atkins v. Virginia, 536 US 304 (2002).

Between these two extremes lies the sentencing of persons who are neither insane nor retarded but nonetheless seriously mentally ill, and for whom there is no constitutional bar against execution. In March 2008, the Tennessee Court of Criminal Appeals reversed the death sentence of Richard Taylor and remanded for a new trial, in lieu of which Taylor agreed to enter a guilty plea in return for life imprisonment. In June 2008, the State of South Carolina executed David Hill. Both men suffered from extreme mental illness.

For Taylor, the case was more clear-cut. The record on appeal indicated that Taylor, at the age of 21, was serving a sentence in 1981 'for joy-riding and robbery convictions when he stabbed a prison guard at the Turney Center Correctional Center in Tennessee. Eyewitnesses described him as raving, with wild eyes and a facial expression “like a wild horse,” and trembling and shaking. The prison guard died. An already-incarcerated Taylor was then tried and convicted for killing the prison guard and sentenced to death. Prison records showed that during his incarceration, Taylor had previously tried to kill himself by swallowing glass.

During his 18 years on death row, Taylor's attorneys (from the Office of the Tennessee Post-Conviction Defender and the AMERICAN CIVIL LIBERTIES UNION, ACLU) continued to appeal his sentence, arguing that his mental illness had affected every step of his case, from offense through trial. In summary, they argued that he had a long, documented history of severe mental illness, was denied psychiatric treatment at various times during his incarceration, and had not received his anti-psychotic medication for the two months preceding the crime (the attack on a prison guard) that resulted in his death sentence.

Although Taylor was granted a new trial in 2003, he was permitted to represent himself, despite a prison record replete with notations of his severe mental illness. He was again convicted and sentenced to death. It was this conviction and death sentence that was overturned in the March 2008 decision of the Tennessee Court of Criminal Appeals. The appellate court found numerous substantive errors requiring reversal, five of which were cited in its decision. Tennessee v. Taylor, No. M2005-01941-CCA-R3-DD, March 7, 2008.

The court, in reversing and remanding the case, stated,

Upon review, we conclude the trial court failed to consider the full panoply of evidence relevant to whether the Defendant knowingly and voluntarily waived his right to counsel. He is thus entitled to a new trial. Additionally, the Defendant's constitutional right to counsel was denied at a competency hearing, the trial court erred in failing to hold a competency hearing during trial, and the trial court erred in failing to appoint advisory counsel. These errors also entitle the Defendant to a new trial. We also conclude that the trial court erred when it instructed the jury at the sentencing phase, and the Defendant is entitled to a new sentencing hearing. In accordance with the foregoing reasoning and authorities, we vacate the Defendant's conviction and sentence of death and remand for a new trial.

But in South Carolina, the state Supreme Court, in upholding the decision of a trial court, found death row prisoner David Hill “competent” to waive his right to further appellate review and other post-conviction relief, and found his waiver to be knowing and voluntary. South Carolina v. Hill, No. 26477, April 28, 2008. Hill and his wife had their three children removed from them by the state department of social services because of concern about the parents' abuse of prescription drugs. Hill was convicted of three counts of murder after he walked into a county social services office and shot three employees dead. A massive manhunt followed, and Hill was found the following morning, lying on railroad tracks directly behind the building where the murders took place. He had a [presumably self-inflicted] bullet hole through the roof of his mouth and an exit wound through the top of his skull. He recovered from his wounds and later admitted to the killings.

The South Carolina Supreme Court affirmed his convictions and death sentence. State v. Hill, 361 S.C. 297 (2004); cert. denied, 544 U.S. 1020 (2005). Then in May 2007, Hill sent a letter to the State Solicitor requesting assistance to “drop the rest of my appeals and have an execution date set.” On June 21, 2007, counsel for Hill submitted an affidavit indicating that Hill had changed his mind and did not wish to drop his appeals. A little more than three weeks later, Hill again advised the court that he wished to withdraw his pending post-conviction relief application and any remaining appeals. The trial court ordered a competency evaluation and thorough examination of Hill. Following a hearing, the trial court found Hill competent to waive his appeals and also found that his decision was made knowingly and voluntarily. On April 28, 2008, the South Carolina Supreme Court, upon full review of the trial court's record in addition to another thorough examination of Hill during oral arguments before the Court, affirmed the trial court's findings that Hill was competent to waive his rights, and did so knowingly and voluntarily. Hill was executed on June 6, 2008.

No First Amendment Right to View Executions

In January 2008, U.S. District Court Judge Susan Webber Wright of the Eastern District of Arkansas dismissed a lawsuit that had been filed in July 2007, demanding that witnesses be allowed to see and hear all phases and stages of the lethal injection process for capital defendants. Judge Wright ruled there was no First Amendment right of access to executions. The suit had been filed by the American Civil Liberties Union (ACLU) on behalf of the Northwest Chapter of the Society of Professional Journalists, the Arkansas Times, a weekly newspaper, and Max Brantley, its editor. ACLU, et al, v. Larry Norris, No. 5:07-CV-195 (E.D. Ark. 2008).

The lawsuit had argued that witnesses should be able to view everything from the time a condemned inmate enters the execution chamber until he/she is pronounced deceased, including “strapping the condemned down and the insertion of needles.” It premised this right as being grounded in the First Amendment, akin to a Freedom of Information (FOIA) Act request. The lawsuit's articulated reason was that such access would help educate the public about how the state effects an execution, and would let witnesses see if anything goes wrong.

But the State Department of corrections and its director, Larry Norris, responded that the state was merely following state law, which provided that state executions were private and not public proceedings. Under state law, curtains were generally opened once an inmate was already strapped to a gurney and closed once the inmate was pronounced dead. Department spokesperson Dina Tyler stated to the Associated Press that keeping the curtain closed while an inmate entered the chamber allowed the condemned person some dignity. In its legal response, the department of corrections had countered, “Whether Arkansas should keep the curtain open from the time a condemned prisoner enters the execution chamber is a question of policy for the Arkansas General Assembly and state officials and not a question governed by the First Amendment.”

The district court agreed. In its 10-page decision, the court noted that “The Supreme Court has never recognized a First Amendment right of access to executions.” District Judge Wright also noted that the high court had previously held that, while conditions in jails and prisons were matters of great public concern and importance, access to penal institutions was a question of policy for a legislative body. The judge noted that executions had “moved from the public square to inside prison walls.” An execution, noted the opinion, “bears little resemblance to a criminal judicial proceeding, where public participation plays an indispensable functional role in the process itself, and where public access enables citizens to judge whether our system of criminal justice is fair.”

The district court further held that in this case, the prison director “has the responsibility to determine the substances to be administered and the procedures to be used in any execution.” The law already provided for the director or an assistant to be present, as well as “a number of respectable citizens numbering not fewer than six … nor more than twelve … whose presence is necessary to verify that the execution was conducted in the manner required by law.” The court also noted that state law additionally provided for the inmate's attorney and spiritual adviser to attend as well, along with any other spectators designated by the director, with a maximum overall attendance limited to 30 persons.

After release of the court's opinion, plaintiff editor Max Brantley told the Associated Press, “Even if constitutionally we don't have a right to be there at every step of that process, public accountability demands that we should be.” He added that he and the other parties would confer with legal counsel to decide whether to appeal the ruling.

The ACLU had filed similar suits in other states previously, also citing First Amendment violations by state departments of corrections. In 1999, the Oregon Supreme Court struck as invalid certain state rules that barred execution witnesses from viewing the insertion of needles. As of early 2008, only the Ninth Circuit Court of Appeals has held (in a 2002 decision, California First Amendment Coalition v. Woodford) that the First Amendment provided a right of access to view executions from the beginning of the process. Following that remanded decision, in 2003, the California Department of Corrections ended its legal battle and decided to permit media personnel to witness the executions in full. Only states within the Ninth Circuit (including California and Oregon) were bound by that decision. Arkansas is under the jurisdiction of the Eighth Circuit Court of Appeals.

Capital Punishment

views updated May 29 2018


CAPITAL PUNISHMENT , the standard penalty for crime in all ancient civilizations.

In the Bible

Many of the crimes for which any biblical punishment is prescribed carry the death penalty. The three methods of executing criminals found in the Bible are stoning, burning, and hanging.


Stoning was the instinctive, violent expression of popular wrath (Ex. 17:4, 8:22; Num. 14:10; i Sam. 30:6; i Kings 12:18; ii Chron. 10:18), and is often expressly prescribed as a mode of execution (Lev. 20:2, 27, 24:16; Num. 15:35; Deut. 13:11, 17:5, 21:21, 22:21, et al.). As the survival of vindicta publica, it was and remained characterized by the active participation of the whole populace (Lev. 24:16; Num. 15:35; Deut. 17:7; et al.) – all the people had to pelt the guilty one with stones until he died. Stonings were presumably the standard form of judicial execution in biblical times (Lev. 24:23; Num. 15:36; i Kings 21:13; ii Chron. 24:21).


Burning is mentioned as a pre-Sinaitic punishment (Gen. 38:24). As a mode of judicial execution it is prescribed in respect of two offenses only (Lev. 20:14, 21:9), but it seems to have been used to aggravate the punishment of stoning, the corpse being burned after execution (Josh. 7:25). It is also reported as a non-Jewish (Babylonian) punishment (Dan. 3:6). There is no biblical record to indicate whether and how judicial executions were ever carried out by burning.


Hanging is reported in the Bible only as either a mode of execution of non-Jews who presumably acted in accordance with their own laws (e.g., Egyptians: Gen. 40:22; ii Sam. 21:6–12: Philistines; and Persians: Esth. 7:9), or as a non-Jewish law imported to or to be applied in Israel (Ezra 6:11), or as an extra-legal or extra-judicial measure (Josh. 8:29). However, biblical law prescribes hanging after execution: every person found guilty of a capital offense and put to death had to be impaled on a stake (Deut. 21:22); but the body had to be taken down the same day and buried before nightfall, "for an impaled body is an affront to God" (ibid., 23).

Talmudic Law

Talmudic law distinguished four methods of judicial execution (arba mitot bet din): stoning, burning, slaying, and strangling. In no area can the genius of the talmudic law reformers better be demonstrated than in that of capital punishment. Two general theories were propounded which, though dated from a period too late to have ever stood the test of practical application (see below), reflect old traditions and well-established ways of thinking: namely, first, that "love your neighbor as yourself" (Lev. 19:17) was to be interpreted as applying even to the condemned criminal – you love him by giving him the most humane ("the most beautiful") death possible (Sanh. 45a, 52a; Pes. 75a; Ket. 37a); secondly, that judicial execution should resemble the taking of life by God: as the body remains externally unchanged when God takes the life, so in judicial executions the body should not be destroyed or mutilated (Sanh. 52a; Sifra 7:9).


Stoning was not only confined to the 18 offenses for which the Bible had expressly prescribed it (Maim., Yad, Sanhedrin 15:10), but instead of having all the people kill the convicted person by pelting stones at him a "stoning place" was designed from which he was to be pushed down to death (Sanh. 6:4). This must not be too high, so that the body should not be mutilated falling down (Rashi, Sanh. 45a), and not too low, so that death would be instantaneous. One of the hermeneutical reasons given for this change of the law was the scriptural rule that "the hands of the witnesses shall be first upon him to put him to death" (Deut. 17:7); it is true that "the hand of all the people [should be on him] afterward" (ibid.), but it is the hand of the witness which is to put him to death. A mode of "stoning" had therefore to be devised in which the witness would not only be assured of the first chance to lay hands on the convicted person, but also of the certainty of thereby putting him to death (Sanh. 6:4). Talmudic jurists may have been influenced by Roman law (Saxum Tarpeium of the Twelve Tables 8:13f., 8:23) or by Syrian or Greek laws (cf. ii Macc. 6:10), or perhaps by a single biblical precedent with prisoners of war (ii Chron. 25:12) – what they attained was a more humane substitute for the biblical stoning, by which the danger of mutilation was considerably reduced and death accelerated. Maimonides justifies the talmudic method with the reflection that it really made no difference whether stones were thrown at one or one was thrown on the stones (Maimonides, Comment. to Sanh. 6:4). A great penal reform was achieved with the exclusion, contrary to biblical command, of the general public from the execution of death sentences and the elimination therefrom of all traces of vindicta publica. The participation of witnesses – and perhaps also the blood avenger – was not eliminated because they were regarded as a lesser evil in comparison with professional executioners.


Burning remained confined to the *adultery of a priest's daughter and to certain forms of *incest (Sanh. 9:1; Maim. Yad, Sanhedrin 15:11). Here again the question arose of how to execute by burning without destroying the body: an old tradition has it that when Aaron's sons were consumed by divine fire (Lev. 10:2) only their souls were burnt, their bodies remaining intact (Sanh. 52a); in accordance with this, a mode of burning which would leave the body intact had to be devised. The man to be burnt was to be immersed in mud up to his knees (so that he should not fall); two kerchiefs were then to be bound round his neck, each to be held in the hands of one witness and drawn in opposite directions until he opened his mouth, and then a burning wick was to be thrown into his mouth "which would go down into his bowels" (Sanh. 7:2). As will be seen, this mode of execution is almost identical with that of strangling, it being reasonable to suppose that the wick will no longer burn when it arrives in the bowels, but suffocation will already have supervened. Maimonides substitutes hot lead or zinc for the comparatively harmless mishnaic wick (Sanh. 15:3), taking the wick to be a metallic substance, but insisting that as little pain as possible should be inflicted (Comment. to Sanh. 7:2). There is no record that this method of burning was ever actually practiced. There is a report that a priest's daughter was burnt for adultery by being bound with bundles of grapevine which were then ignited (Sanh. ibid.). The explanation there given was that this may have been the method employed by a Sadducean court, leading some scholars to conclude that that had been the original biblical mode of burning, the Sadducees rejecting later oral law modifications. The same older method of burning is reported to have been adopted by a later Babylonian scholar, Ḥama b. Tobiah, who was rebuked for it (Sanh. 52b). That burnings may also have taken place at the stake appears from midrashic sources (cf Gen. R. 65:22; Mid. Ps. 11:7). Josephus reports that Herod ordered men who had incited others to desecrate the Temple to be burnt alive and their accomplices to be killed by the sword (Wars, 1:655).


Slaying by the sword was the mode of executing murderers and the inhabitants of the subverted town (Sanh. 9:1). As for the subverted town, it is the biblical prescript that its inhabitants be "put to the sword" (Deut. 13:16); and as for murderers, a slave murdered by his master must be "avenged" (Ex. 21:20), and as God is said to "avenge" by the sword (Lev. 26:25), the murderer of the slave, and a fortiori of the free man, is to be executed by the sword (Sanh. 52b). Slaying consisted in decapitating with a sword, "in the way practiced by the [Roman] government" (Sanh. 7:3). There ensued a discussion, which continued for centuries (cf. Tos. to Sanh. 52b), whether this would not contravene the injunction, "neither shall ye walk in their statutes" (Lev. 18:3). One scholar thought it would be less cruel or mutilating, and less Roman-like, to have the convict lay his head on a block and decapitate him with a hatchet, but the majority held that to be worse (Sanh. 7:3). While there was no particular mode of execution for murder prescribed in the Bible, it is probable that originally such executions were by way of *talion: in the same manner in which the victim had been murdered, his murderer would be executed (cf. Philo, Spec., 3:83ff.; Jub. 5:31; Jos., Ant., 4:279). If that be so the talmudic reform would equalize the law and have death made instantaneous in all cases. There are no reports of murderers having been judicially executed by the sword, but kings are reported to have used this mode of execution, not necessarily for murderers (cf. Jos., Ant., 14:450, 464; Acts 12:2). It became the law that the king, who may order the execution of rebels and of offenders against his majesty even without judicial conviction, always executes with the sword (Maim., Yad, Melakhim 3:8, Sanhedrin 14:2). Indeed, God, too, kills by the sword (Num. 14:16; Lam. 2:21).


Strangling is the residuary capital punishment; where no other mode of execution is prescribed, the death penalty is carried out by strangulation (Sanh. 52b, 84b, 89a), supposed not only to be the most humane but also the least mutilating (Sanh. 52b). The mishnaic procedure resembles that for burning. The convicted man is immersed in mud up to his knees, two kerchiefs are bound round his neck and then drawn in opposite directions by the two witnesses until he suffocates (Sanh. 7:3). Strangling is applied in six capital offenses (Sanh. 11:1; Yad Sanh. 15:13). There is no report of this mode of execution ever having been carried out. (For strangulations by hanging, see *Extraordinary Remedies.) Post mortem hangings were restricted by talmudic law, some holding that only executions by way of stoning should be followed by a post mortem hanging, and the majority view being that these hangings should be limited to the two offenses of blasphemy and idolatry only (tj, Sanh. 6:4, 45b).

Though in strict law the competence to inflict capital punishment ceased with the destruction of the Temple (Sanh. 52b, Ket. 30a; cf. Sanh. 41a, 40 years earlier), Jewish courts continued, wherever they had the power (e.g., in Muslim Spain), to pass and execute death sentences – not even necessarily for capital offenses as defined in the law, but also for offenses considered, in the circumstances prevailing at the time, as particularly dangerous or obnoxious (e.g., *informers: Yad, Ḥovel u-Mazzik 8:11), or even for such offenses alone as distinguished from those originally punishable under the law (cf. Resp.Rosh 17:1). In order not to give the appearance of exercising sanhedrical jurisdiction, they would also normally refrain from using any of the four legal modes of execution (Resp. Maharam of Lublin, 138); but isolated instances are found of stoning (Zikhron Yehudah, 75), slaying (ibid., 58; Resp. Rosh. 17:2), and strangling (Zekan Aharon 95), along with such newly devised or imitated modes of execution as starvation in a subterranean pit (Resp. Rosh 32:4), drowning, bleeding, or delivering into the hands of official executioners (S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud, no. 48). In most cases, however, the execution of death sentences was probably left to the discretion of the persons who were authorized or assigned by the court to carry them out (cf. Resp. Rema, 11).

[Haim Hermann Cohn]

In Practice in the Talmud

It is of extreme difficulty to determine whether the modes of capital punishment given above, and based on the detailed discussion, mainly in the tractate Sanhedrin, reflect actual practice, or whether they were academic discussions, as, for instance, are the detailed discussions on the sacrifices. Thus the law of the "stubborn and rebellious son" covers five mishnayot (Sanh. 8:1–5) and four folios of the Babylonian Talmud (68b–72a), and it is laid down that he is put to death by stoning and then hanged (ibid., 46a). Yet it is stated that "It never happened and it never will happen" and that the law was given merely "that you may study it and receive reward" (for the pure study; Tosef., Sanh. 11:6; Sanh. 71a), though on the other hand in the talmudic passage R. Jonathan protests "I saw him and sat on his grave." The same statement is made in the case of the death penalty for communal apostasy (Tosef., Sanh. 14:1) and the same reason given for its study.

Much more pertinent, however, is a passage of the Talmud which explicitly compares the study of, and the discussion on the various death penalties with that on the sacrifices. The halakhah was established in the case of the death penalty for an adulterous woman. R. Joseph asked, "Is there need to establish a halakhah for the messianic age (the Sanhedrin no longer having jurisdiction in capital offenses)?" Abaye answered, "If so, we should not study the laws of sacrifices, as they also apply to the messianic age. But we say 'Study and receive reward'" (Sanh. 51b). Similarly, the passage in Mishnah Makkot 1:10: "A Sanhedrin that puts a man to death once in seven years is called a murderous one. R. Eleazar ben Azariah says 'Or even once in 70 years.' R. Tarfon and R. Akiva said, 'If we had been in the Sanhedrin no death sentence would ever have been passed'; Rabban Simeon b. Gamaliel said: 'If so, they would have multiplied murderers in Israel.'" Instructive though this is, it is merely an academic discussion, the right of imposing capital punishment having been taken from the Sanhedrin by the Romans a century before, "40 years before the Destruction of the Temple" (Sanh. 41a; tj, Sanh. 1:18a). The rabbis agreed that with the destruction of the Temple the Sanhedrin was precluded from inflicting capital punishment (see above).

The Talmud actually asks whether the statement of Eleazar b. Azariah was one of censure or reflected the fact of the rarity of death sentences, and leaves the question undecided, as it does for the question as to how R. Tarfon and R. Akiva would have prevented the death verdict being passed (but see Makk. 7a).

That the discussions are largely academic is reflected in the language of the Mishnah. Of capital punishment by the sword it is stated that "they used to decapitate him, as the [Roman] government does [at the present time]" (cf. Tosef., Sanh. 9:10) and R. Judah proposes another method. It goes on to state how "they used to" fulfill the method of death by strangulation (ibid., 7:3). No less significant is the fact that R. Akiva himself, who would have abolished capital punishment, enters into the halakhic discussion on it as fully as his colleagues (cf. ibid., 11:7, 12:2).

All that one can do is to assemble the available evidence. That the Sanhedrin had the power of inflicting the death sentence and that they exercised it is historically attested. Herod was arraigned before it on a capital charge, although he was enabled to escape and avoid the penalty (Jos., Ant., 14:168–70). Judah b. Tabbai admitted that he had wrongly sentenced a perjured witness to death (tj, Sanh. 6:4, 23a–Tosef., Sanh. 6:6). The son of his colleague, Simeon b. Shetaḥ, was also wrongly condemned to death through false witness, and when the witnesses confessed their perjury the condemned man refused to take advantage of it lest his father, the head of the Sanhedrin, be accused of favoritism, and he went to his death, though innocent (tj, loc. cit.). It is also clear from an incident vividly described by Simeon b. Shetaḥ that the laws of evidence were strictly adhered to (Tosef., Sanh. 8:3). One anonymous case is cited in the same context. "It happened that a man was being led to his execution. They said to him, 'Say, "May my death be an atonement for all my sins.'" He replied 'May my death be an atonement for all my sins, except for this one (for which I have been sentenced to death). If I am guilty of it, may my death not be an atonement, and the Bet Din and all Israel shall be guiltless'" (the version in the Babylonian Talmud adds "but may the witnesses never be forgiven""). When the matter was reported to the sages, their eyes filled with tears, but they said, "It is impossible to reverse the decision, since the matter is endless; [he must be executed] but his blood is on the necks of the witnesses" (tj Sanh. 6:5, 23a).

Nevertheless, in none of those cases is the manner of execution given and the remarkable fact emerges that in the two cases cited where the mode of execution is explicitly stated the verdicts were extra-judicial. One was the action of Simeon b. Shetaḥ in sentencing 80 women in Ashkelon to hanging for witchcraft (Sanh. 6:4, cf. Sanh. 46a. Derembourg suggests that Simeon b. Shetaḥ is a mistake for the Hasmonean), while of the other it is stated: "It once happened that during the Greek period a man was sentenced to death by stoning for riding a horse on the Sabbath. Not that he was liable to death, but because the special circumstances of the time demanded it" (Sanh. 46a).

What is perhaps the most cogent evidence that the talmudic discussions on the death sentence did not reflect the actual practice is provided by a third instance. In Sanhedrin 7:2 R. Eleazar b. Zadok gave evidence of an actual case of death by burning which differed diametrically from that given by the Mishnah. The answer was given that "the Sanhedrin at that time was not competent." In the Tosefta (9:11) and the Jerusalem Talmud (7:2, 24b) Eleazar b. Zadok vividly describes the circumstances under which he witnessed it. "I was a child and was being carried on my father's shoulders and I saw it," to which his colleagues replied "You were then a child, and the evidence of a child is inadmissible." That the incident happened is therefore definite; the rabbis in the two replies were concerned with establishing their theoretical view of the law even when it conflicted with the actual practice of the past. There are no recorded cases of execution by strangulation or the sword. It would seem therefore that discussions on the various modes of execution and the details of their implementation were made to "study and receive the reward therefore," i.e., academic. As is evident from the above quoted mishnah in Makkot, the whole tendency of the rabbis was toward the complete abolition of the death penalty.

[Louis Isaac Rabinowitz]

In the State of Israel

The death penalty was in force in Israel for offenses under the Nazis and Nazi Collaborators (Punishment) Law, 5710 – 1951 and under the Penal Law, 5737 – 1977, for treason and assisting the enemy in times of actual warfare (Sections 97, 98, 99). In addition, a military tribunal may impose the death sentence upon a soldier for offenses of treason committed in times of actual warfare (Military Justice Law, 5715 – 1955, Section 43) and military courts in the administered territories are empowered to impose the death penalty for certain offenses, though such rulings must be unanimous and can only be given by a panel of justices all of whom have at least the rank of lieutenant colonel. The death penalty has only been carried out in one instance (in 1962) following the conviction of Adolf *Eichmann for crimes under the Nazis and Nazi Collaborators (Punishment) Law, 5710 – 1951. The death penalty for offenses under this law was also imposed in the *Demjanjuk case (in 1988) but was not carried out following his acquittal in the Supreme Court. The proliferation of brutal terrorist acts, and the imposition of life sentences instead of capital punishment, led the military courts to state (cf. Ram 3009/89 Army Pros. v. Ahmed Gibril Ottrrzan Takrzrru) that though the death penalty may be a more appropriate punishment, they were bound "to uphold principles of the State of Israel, the moral concepts of Jewish tradition, in which a Sanhedrin that passed a death sentence was considered to be a 'a bloody Sanhedrin.'" This refers to the statement in the Mishnah (Mak. 1:10; Mak. 7a) that a Sanhedrin that kills (gives the death penalty) once in seven years (R. Eleazer b. Azariah said: once in 70 years) is called "bloody" (ḥovlanit, the term "ḥovel" generally implying a type of injury in which there is blood).

This position of Jewish Law and the related developments over the generations were often the basis for Supreme Court deliberations in cases in which a person was murdered but the findings and evidence connecting the suspected murderer to the commission of the offense were circumstantial only. There were cases in which despite the quantity and probity of the findings, there was no direct evidence to prove that it was the suspect who actually committed the act. In assessing the position in Jewish Law regarding the possibility of relying on circumstantial evidence the Court discussed the various techniques adopted in Jewish Law over the generations in the attempt to relax the strict evidentiary requirements prescribed by the original Jewish Law, which placed an onerous burden on the Jewish courts in their attempts to deal with murderers and dangerous criminals.

In the judgment in Nagar (ca 543/79 Nagar v. State of Israel 35 (1) pd 113), the Supreme Court addressed the question of whether the suspects could be convicted of murder even though the court had no direct evidence of their having committed the offense, and given that the body itself had not been found. The Supreme Court (Justice M. Elon) referred to a previous Supreme Court ruling (Cr.A. 112/69 Muhamad Halil 23 (1) pd 733) which examined the disparity between the position adopted by Jewish Law regarding the offense of murder and the position adopted by modern systems of law, having reference to the far-reaching statements of the tannaim R. Tarfon and R. Akiva, who said:"Had we been in the Sanhedrin [during the period when it possessed capital jurisdiction] no man would ever have been killed" (Mish., Mak., 7:1). Further on, the judgment cites statements made by certain amoraim, explaining how the judge can disqualify any testimony on murder and render any piece of evidence circumstantial, thereby precluding its admissibility: "Did you note whether he (the victim) was suffering from some fatal condition or was in good health?" R. Ashi said: "Even if the reply is that he was in good health, there may have been a lesion where the sword struck [from which he would have died in any event]."

On this basis, further on in the decision, Justice Silberg concluded that a modern legal system cannot endorse the position in Jewish Law, which is prepared to rely on remote eventualities, on the basis of which it exempts dangerous criminals from punishment "since there is a need for judicial action to punish dangerous criminals, it is necessary to disregard 'remote possibilities,' i.e., exceptional, unlikely eventualities, even though this may possibly cause a miscarriage of justice. In other words, the legislature was aware of this danger, but found it to be necessary, for in its absence, the needs of the law would never be met (p. 741 of judgment).

In the Nagar judgment (pp. 163–71) Justice Elon discussed the various developments in Jewish Law with respect to this sensitive and fundamental issue. First of all, the aforementioned view of R. Akiva and R. Tarfon was a minority view, which merited the ironic demurrer of the tanna. R. Simeon b. Gamaliel that "they too would have multiplied the number of murderers in Israel." An absolute moratorium on enforcement of judgments against murderers would lead to the loss of the court's deterrent power, and thus lead to the increase of bloodshed (see Rashi ad loc. tb, Mak. 7a).

In fact, in its original format, Jewish Law was stringent in its requirements for direct evidence, and in this context Maimonides makes the following illuminating observations on the strict evidentiary requirements of Jewish Law (Sefer ha-Mitzvot, Negative Commandments, 290), "that even if A pursues B with intent to kill and B takes refuge in a house, and the pursuer follows him, and we enter the house after them and find B in his last gasp and his enemy, A, standing over him with a knife in his hand, and both of them are covered with blood, the Sanhedrin may not find the pursuer A liable for capital punishment, since there are no direct witnesses who actually saw the murder…" The reason given by Maimonides is that if the court was permitted to convict a suspect of a criminal offense not on the basis of the unequivocal testimony of witnesses who actually witnessed the act, then the court might soon find itself convicting in criminal offenses on the basis of a "the judge's speculative evaluation of the evidence." Maimonides concludes his comments with the observation that "it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death (a statement that later on became a wellknown maxim, see G. Williams, The Proof of Guilt (1963) 186ff.).

Towards the end of the tannaitic period, a principle in Jewish criminal law was enunciated though it had actually been in practice for many years. The acceptance of this principle accommodated a substantive change in Jewish criminal law, both with respect to sanctions and also with respect to evidence and procedure:

It was taught: R. Eliezer b. Jacob said: I have heard that the court may impose flogging and punishment not prescribed in the Torah – not for the purpose of transgressing the law of the Torah, but in order to make a fence around the Torah.

Justice Elon pointed out that on the basis of this fundamental provision, which enabled the courts to deviate from the original law of the Torah in criminal and evidentiary law, in accordance with the needs of the time and the place, both the courts and the communal leaders, utilizing their authority to enact communal regulations (see *Takkanot), adopted detailed legislation in the area of penal law. Formally speaking this legislation was referred to as "exigencies of the hour," but in effect it became part of the substantive Jewish Law. Jewish courts all over the Jewish Diaspora used this authority at various times, even to the extent of imposing capital punishment, without the Court of Twenty Three, and without complying with the strict evidentiary requirements of the original Jewish Law (see Jewish Law, 515–19).

Rabbenu Asher, upon his arrival in Spain at the beginning of the 14th century, states that he was surprised to discover that the Jewish courts in Spain had arrogated to themselves capital jurisdiction and were even imposing capital punishment. In one of his responsa he writes:

…You surprised me greatly by your inquiries about capital jurisdiction. For in all the countries of which I have heard, there is no capital jurisdiction, except here in Spain. And I was astonished to discover upon my arrival that the courts adjudicate capital matters in the absence of a Sanhedrin, and they informed me that they had governmental authorization, and the community used its jurisdiction to save… and I permitted them to persist in their custom, but I never gave my consent to an execution… (Responsum, Rosh, 17:8).

However, despite the reservations expressed by the Asheri regarding capital punishment, in the particular question put to him concerning a Jew who blasphemed the name of God in public, he was prepared to abide by the questioner's position, writing that "It is fitting that the name of Heaven be sanctified by the elimination of this evildoer. And do as you deem appropriate … because I know that your intention is to sanctify the Divine name, and you will be successful in fulfilling God's will."

In contrast with the Asheri's almost forced acknowledgment of the capital jurisdiction exercised by Jewish courts in Spain, his son, R. Judah b. Asher (Spain, North Africa, end of 14th century) praised and thanked the non-Jewish authorities for allowing the Jewish courts to exercise capital jurisdiction:

It is well known that from the day the Sanhedrin was exiled from the Chamber of Hewn Stone, jurisdiction over criminal cases [under the law of the Torah] has been abrogated for Jews, and the only purpose for the law today is to protect the current generation against wrongdoing. Blessed be the Almighty, who has inclined the hearts of the rulers of the land to give to the Jews the authority to judge and wipe out evildoers. Without this, the Jews could not survive in this country. Moreover, many Jews who would have been executed by non-Jewish judges have been saved by the Jewish judges. And the law we apply in criminal matters is not in full conformity with the Torah (Resp. Zikhron Yehudah, 58).

Most of the cases in which capital punishment was imposed were for convictions of murder. Hence we find a responsum of R. Isaac b. Sheshet Barfet (Spain and N. Africa, end of 14th century) when asked regarding a person accused of murder, and the nature of the evidence on the matter:

You know that the law applicable to criminal cases in these times when the government has granted criminal jurisdiction to Jewish courts is not the strict law [i.e., biblical], for jurisdiction over criminal cases [under the law of the Torah] has been abrogated. However, in order to "create a safeguard," the courts, when the exigencies of the time demand it, impose flogging and punishment not prescribed in the Torah.

And if the death penalty – although not prescribed by the Torah – was carried out for other offenses because of the exigencies of the time, then it goes without saying that it applies in cases of murder, concerning which our Sages were most stringent…. In any event, in order to "create a safeguard," since one of them was killed, if you decide that the death penalty is called for because a crime has been committed heinously, violently, and deliberately (it appears that they lay in wait for him [the victim] at night and during the day, and they openly brandished weapons against him in the presence of the communal leaders), then you may [impose the death penalty] … even when there are no eyewitnesses, if there are convincing proofs and valid grounds (Resp. Ribash, 251; see also Resp. Zikhron Yehudah, 58).

In an additional responsum the Ribash ruled that for the same reason it is also possible to rely on the confession of a litigant, supplemented by circumstantial evidence (similarly to the provision in the law of evidence practiced in the State of Israel, which allows the conviction of the accused on the basis of a confession given outside the court, with the addition of "something extra"):

…Jewish courts [at this time] impose flogging and punishment not prescribed by the law, for capital jurisdiction was abrogated, but in accordance with the needs of the time, and even without unequivocal testimony, so long as there are clear grounds to show that he [the accused] committed the offense. In such a case, it is the practice to accept the defendant's confession even in a capital case, even where there is no clear proof, in order that what he says, together with some measure of corroboration, may shed light on what happened (ibid., 234).

Not every part of the Jewish diaspora enjoyed such wide autonomous criminal jurisdiction, and even within a given location, the extent of juridical authority fluctuated over time. As we have seen, the Spanish Jewish center enjoyed broad criminal jurisdiction – even including power to inflict capital punishment – for an extended period. Similarly we find that such jurisdiction also existed in a later period in the Jewish community of Poland. For example, in a responsum of R. Meir of Lublin, a leading Polish halakhic authority in the 16th century, he rules that the courts even have the power to impose capital punishment, by virtue of the principle of "imposing punishment not prescribed in the Torah," in order to create a barrier. Even so, on many occasions, the Jewish courts in Poland preferred that the actual sentence be carried out by the non-Jewish authorities (Resp. Maharam of Lublin, 136; Resp. Eitan ha-Ezraḥi, 43–44).

These principles were succinctly set forth in the codificatory literature, "Even though there is no jurisdiction outside the Land of Israel for capital punishment, flogging, or fines, if the court deems that it is an exigency of the time, in as much as the crime is rampant among the people, it may impose the death penalty, monetary fines, or other punishments" (Tur, Ḥm, ch. 2, and Sh. Ar. ibid.). Apparently, the reason for the brevity of these codes in their exposition of criminal law lies in the limited criminal jurisdiction of Jewish communities of that time, in contrast to their extensive civil and administrative jurisdiction, and the great detail in which these fields were regulated in the codificatory literature of that period. Another factor may have been that criminal activity was not widespread in the Jewish communities of that time, even though here too there were "high" periods and "low" periods" (p.170 of judgment).

The Court summed up its comments in the Nagar case by emphasizing that even though it was necessary to exercise capital jurisdiction and convict on the basis of circumstantial evidence, in contravention of the provisions of the original Jewish Law, it "constantly emphasized that although clear and direct testimony may not always be available, the evidence must be such that the judges 'believe it to be the truth'" (Resp. Rashba, attributed to Naḥmanides, 279) and that the charge must "proved to be well grounded"; and that "the sole intention is to pursue justice and truth and there is no other motive" (Resp. Zikhron Yehudah, 79). The judgment also cites (ibid., 166) the comments of Maimonides, who warned the court to be doubly careful in its exercise of this special jurisdiction, so that the human image and dignity would not be violated more than was necessary: "All these matters are carried out in accordance with what the judge deems necessary under the exigencies of that time, and his acts should always be for the sake of heaven and he should not take a frivolous attitude to human dignity" (Maim. Yad. Hil. Sanhedrin, 24:10).

[Menachem Elon (2nd ed.)]


S. Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews (1891), 256f. (index), s.v.; S. Gronemann, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 13 (1899), 415–50; A. Buechler, in: mgwj, 50 (1906), 539–62, 664–706; D. de Sola Pool, Capital Punishment among the Jews (1916); V. Aptowitzer, in: jqr, 15 (1924/25), 55–118; S. Katz, Die Strafe im talmudischen Recht (1936), 44–52; et, 2 (1949), 163f.; 10 (1961), 587–92; S. Ch. Cook, in: Ha-Torah ve-ha-Medinah, 3 (1950/51), 163f.; J.M. Tikoczinsky, ibid., 4 (1951/52), 33–44; B. Rabinowitz-Teomim, ibid., 45–81; S. Israeli, ibid., 82–89; Ch. Z. Reines, in: Sinai, 39 (1955/56), 162–8; J.M. Ginzberg, Mishpatim le-Yisrael (1956), 381 (index), s.v.Mitat Beit Din; G.J. Blidstein, in: Judaism, 14 (1965), 159–71; E.M. Good, in: Stanford Law Review, 19 (1966/67), 947–77; H. Freedman, in: The Bridge (Sydney), 3 (1967), no. 2, p. 4–8; H. Cohen, in: ilr, 5 (1970), 62–63. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:11–12, 97, 185 n. 86, 259, 283, 306, 422f., 435, 500, 648, 791f., 808; 2:842, 845, 1103; 3:1353, 1382, 1616; idem, Jewish Law (1994), i:10f., 109. 207 n. 86, 303f., 334f., 365f., 515f.; 2:531, 609, 802, 970f., 990; 3:1030. 1033f., 1326; 4:1615, 1646, 1926; idem, Jewish Law (Cases and Materials) (1999), 200ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah 2 1986), 332, 337, 343; B. Lifshitz and E.Shohetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarfat ve-Italyah (1997), 230; S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922); Ginsburg, Mishpatim le-Israel (1956) Y. Bazak, Harigat Nefashot ve-Dineiha be-Safrut ha-Shut, Divrei ha-Kongres ha-Olami ha-Ḥamishi le-Mada'ei ha-Yahadut, 3 (1969), 37.

Capital Punishment

views updated May 08 2018

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

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; 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;


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.


Capital Punishment

views updated May 11 2018

Capital Punishment

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

Brown v. Sanders

The U.S. Supreme Court requires states to limit the class of murderers to which the death penalty may be applied. This "narrowing requirement" is met when the jury finds at least one eligibility factor defined in the capital punishment statute applies to a defendant. This finding can be made during the guilt or penalty phase of a trial. Once a jury finds the defendant eligible for the death penalty it must then determine if the defendant should receive it. State laws list aggravating factors which must be weighed against mitigating factors when deciding a defendant's fate. The aggravating factors may be similar or identical to the eligibility factors, which has led the Court to review the relationship of these factors in certain circumstances. In Brown v. Sanders, ___U.S.___, 126 S.Ct. 884, ___L.Ed.2d___ (2006), the Court examined a California case where a jury imposed a death penalty after finding four eligibility factors, two of which were later declared invalid. The Court held that the two remaining factors sustained the death penalty because the facts and circumstances in the invalidated factors were admissible under an aggravating factor that dealt with the "circumstances of the crime."

In 1981, Ronald Sanders and an accomplice broke into the Bakersfield, California home of Dale Boender and his girlfriend, Janice Allen, seeking to rob Boender of his stash of cocaine. Sanders struck the victims on the head with a blunt object, injuring Boender and killing Allen. Sanders was convicted of first-degree murder, attempted murder, robbery, burglary, and attempted robbery. The jury found four factors, called "special circumstances" in California, which made Sanders eligible for the death penalty. The circumstances included committing murder during the course of a robbery, the killing of a witness to a crime, committing murder during the course of a burglary, and committing a murder that was "especially heinous, atrocious, or cruel." The jury then considered a list of sentencing factors during the penalty phase, one of which was the circumstances of the crimes Sanders committed. The jury sentenced Sanders to death.

Sanders appealed to the California Supreme Court, which ruled invalid the burglary and "heinous, atrocious, and cruel" special circumstances. However, the court found that the surviving special circumstances were sufficient to sustain capital punishment. Sanders then filed a petition for a writ of habeas corpus in federal district court, arguing that the invalidity of the two special circumstances considered by the jury made the death sentence unconstitutional. The district court denied relief but the Ninth Circuit Court of Appeals reversed. The appeals court concluded that the California Supreme Court had erroneously applied a U.S. Supreme Court precedent. The California court could only uphold the death sentence if it found the jury's use of the invalid special circumstances had been harmless error or it had independently reweighed the sentencing factors as applied to Sanders. The state then appealed to the U.S. Supreme Court.

The Court, in a 5-4 decision, reversed the Ninth Circuit ruling. Justice Antonin Scalia, in his majority opinion, reviewed the Court's capital punishment jurisprudence and noted that it had divided state death penalty processes into "weighing" and "non-weighing" categories. In weighing states, the jury could only consider aggravating factors that were specified eligibility factors. Therefore, when an eligibility factor was ruled invalid the death penalty sentence must be reversed unless the error was harmless or the court reweighed the mitigating evidence against the valid aggravating factors. In non-weighing states the jury could consider aggravating factors different from, or in addition to, the eligibility factors. An invalid eligibility factor in a non-weighing state would be constitutional error if the jury drew conclusions from evidence it should not have heard based on this factor. Justice Scalia acknowledged that the use of this "weighing/non-weighing scheme is accurate as far as it goes, but it now seems to us needlessly complex and incapable of providing for the full range of possible variations." The Court then invoked a new rule: "an invalidated sentencing factor (whether an eligibility factor or not)" will make a death sentence unconstitutional "unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and conclusions."

Justice Scalia disagreed with the Ninth Circuit's conclusion that California was a weighing state. In fact, the "circumstances of the crime" aggravating factor had the effect of turning California into a non-weighing state. The act of burglary and the facts and circumstances of how the crime was committed had been removed as eligibility factors but this evidence was properly used when the jury considered the aggravated circumstances of the crime. In Scalia's view the erroneous factors could not have "skewed" the sentence and made it unconstitutional. Whether California was a weighing or non-weighing state, the special circumstances of the crime aggravating factor was a proper channel for the jury to consider the evidence of Sanders' crimes. Therefore, the death penalty sentence was correct.

Justice John Paul Stevens, in a dissenting opinion joined by Justice David Souter, chastised the court for modifying the law regarding weighing and non-weighing states. Justice Stephen Breyer, in a dissenting opinion joined by Justice Ruth Bader Ginsburg, contended that the real issue was whether a court must find that "the jury's consideration of an invalid aggravator was harmless beyond a reasonable doubt, regardless of the form a State's death penalty law takes." The Court should have remanded the case to the Ninth Circuit for a full review based on the Court's new rule.

ABA Recommends Moratorium on Death Penalty in Georgia

A group of legal experts sponsored by the American Bar Association (ABA) issued a report in January 2006 urging the state of Georgia to place a moratorium on the death penalty in the state. The group concluded that the state could not ensure fairness in conducting trials and appeals. The recommended moratorium would remain in place until the state could guarantee fairness and accuracy in every case.

The ABA has expressed concern about the nation's death penalty system in the past. In 1997, the ABA called for the suspension of capital punishment throughout the U.S. until serious flaws in the system could be eliminated. More specifically, the organization urged states that allow capital punishment to ensure that death penalty cases are administered fairly and impartially and that the procedures employed by the states minimize risks that innocent persons may be executed.

The ABA's Section of Individual Rights and Responsibilities established the Death Penalty Moratorium Implementation Project in 2001. Two years later, the Project initiated an examination of death penalty systems in 16 states to determine whether those states achieved fairness and due process. The states included Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Nevada, Ohio, Okla-homa, Pennsylvania, Tennessee, South Carolina, Texas, and Virginia. Assessment teams in each of these states consisted of judges, legislators, prosecutors, defense attorneys, law professors, bar association leaders, and others.

State assessment teams collected data in thirteen categories, which were established in an assessment guide created by the Project. These categories include the following: (1) death row demographics, DNA testing, and the location, testing, and preservation of biological evidence; (2) evolution of the state death penalty statute; (3) law enforcement tools and techniques; (4) crime laboratories and medical examiners; (5) prosecutors; (6) defense services during trial, appeal, and state post-conviction relief proceedings; (7) direct appeal and the unitary appeal process; (8) state post-conviction relief proceedings; (9) clemency; (10) jury instructions; (11) judicial independence; (12) the treatment of racial and ethnic minorities; and (13) mental retardation and mental illness.

The team that assessed the implementation of the death penalty in Georgia released a 323-page report in January 2006 that found seven distinct problems with the system in that state. The assessment team was made up of ten prominent Georgia lawyers and political figures. Nine of the ten members recommended the moratorium, with a former U.S. attorney dissenting from this recommendation.

The report identified that Georgia provides inadequate funding for defense counsel. According to the report, the state's capital defender office has a budget for a total of 49 capital cases per year, fewer than the total number of pending capital cases by the end of 2005. Likewise, the report criticized Georgia for not providing defense counsel for state habeas corpus proceedings. Georgia is one of only two states, along with Alabama, that does not provide counsel for this purpose.

Race plays a significant factor in capital sentencing in Georgia, which was a major cause for concern for the assessment team. Statistics indicate that a person who is suspected of killing a white victim is 4.56 times as likely to be given the death sentence as a person who kills a black victim. Thus, according to the report, race is not only important with respect to the identity of the suspect, but also the identity of the victim.

The report also discovered problems with the treatment of mentally retarded suspects. Georgia is among 26 states that have enacted statutes prohibiting the execution of mentally retarded persons. However, of these states, Georgia is the only one that requires a suspect to prove retardation beyond a reasonable doubt. The ABA recommends that this burden of proof should be by a preponderance of the evidence.

The final two areas of concern in the report focused on procedural issues and statewide review of capital punishment. The report found that jurors in capital cases were given inadequate instructions about mitigating factors presented by the defense. In fact, 41 percent of jurors interviewed for the study said that they were not aware that they could consider any mitigating evidence, while 62.2 percent thought that the defense had to prove mitigating circumstances beyond a reasonable doubt. In addition to inadequate jury instructions, the assessment team determined that the Georgia Supreme Court failed to conduct an adequate review of death penalty cases so as to ensure that sentencing is not arbitrary.

Top officials in Georgia disagreed with the report. Spokespersons for both Governor Sonny Perdue and Attorney General Thurbert Baker indicated that the state would not consider a moratorium. According to Ken Hodges, vice chairman of the Prosecuting Attorneys Council of Georgia, "Georgia is very careful and very deliberate in its imposition of the death penalty. The defendant in a capital case is given every right afforded him or her under the U.S. and Georgia constitutions. They get a heck of a lot more constitutional protections than the victims, who are heinously, brutally raped and murdered."

Hill v. McDonough

In Hill v. McDonough, 547 U.S. ____, 126 S.Ct. 2096 (2006), the U.S. Supreme Court unanimously held that a death-row inmate who had exhausted all appeals and habeas relief could nonetheless file a civil action under 42 U.S.C. §1983 challenging the constitutionality of a state's method of execution. The district court and Eleventh Circuit Court of Appeals had dismissed the inmate's action on the rationale that it was the functional equivalent of a habeas petition, thus barring the claim as a successive petition. The Supreme Court disagreed. It did not rule on the constitutionality of the intended execution by lethal injection (as "cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution), but merely allowed the inmate to proceed with his civil suit in lower court.

Section 1983 claims prohibit persons who, under the color of law or custom, subject other persons to the deprivation of any right, privilege, or immunity secured by the Constitution or other laws. It is commonly invoked in lawsuits against police and public officials not otherwise protected by sovereign immunity.

In 1983, Clarence Hill was convicted of murder and sentenced to death in a Florida state court. From the time of his conviction and sentence to the time of his intended execution, Florida law had changed the method of prescribed execution from electrocution to lethal injection. In 2000, the Florida Supreme Court rejected another inmate's Eighth Amendment challenge to the protocol three-drug sequence (constituting lethal injection) as too speculative. In that case, the inmate claimed that the sequential injection of three different drugs could cause great pain if administered improperly. Sims v. State, 754 So.2d 657.

More than 20 years after Hill's conviction and sentence, and after all his state and federal appeals were exhausted, Florida's governor signed his death warrant in November 2005, scheduling his execution for January 24, 2006. Hill then challenged, for the first time, Florida's lethal injection protocol. In December 2005, he filed a successive postconviction petition in state court, which was dismissed as procedurally barred. The Florida Supreme Court affirmed on January 17, 2006. Hill v. State, 921 So.2d 579, cert. den., 546 U.S. ____(2006).

Just four days before execution, Hill brought a civil rights action in federal district court under §1983, alleging that the scheduled lethal execution violated the Eighth Amendment as cruel and unusual punishment. He alleged that the substance used in the first of three injections, sodium pentothal, would not be a sufficient anesthetic to render painless the administration of the other two substances. This could potentially leave a person conscious and suffering from severe pain as the other two drugs are administered. Hill asked for an injunction barring the state from executing him in the intended (protocol) manner. On the same day, he filed with the Eleventh Circuit Court of Appeals a petition for leave to file a second habeas action.

The federal district court found that Eleventh Circuit precedent viewed such claims as the functional equivalents of petitions for writs of habeas corpus. As Hill had already exhausted his habeas corpus relief in an earlier action, the district court deemed his new claim "successive" and thus barred, for failure to obtain leave to file from the Court of Appeals, as required by 28 USC §2244(b).

The Eleventh Circuit affirmed both the decision and the grounds on January 24, 2006, the day of scheduled execution. The Supreme Court, however, issued a temporary stay of execution, and then granted certiorari.

In its decision, the high court first distinguished between the purpose of habeas actions (to challenge the lawfulness of a confinement or sentence) versus a §1983 action, generally brought to challenge the conditions or circumstances of a confinement or sentence.

Next, the Court summarized its previous holdings in Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). In Nelson, the Court addressed whether a challenge to the procedure used to administer lethal injection must proceed as a habeas corpus action. The Court then concluded that Nelson was controlling in the present case. If the challenge was to the method of carrying out a sentence, rather than the lawfulness of the sentence itself, the challenge was distinct from a habeas petition and was not barred. In the present case, Hill did not claim that the execution itself was unlawful, but rather, that he should not be forced into painful execution. This left the state free to use an alternative lethal injection procedure.

The Court noted that filing a §1983 action did not entitle the complainant to an automatic stay of execution. A stay is an equitable remedy not available by right, and matters of equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from federal courts. One of the requirements that inmates must satisfy when seeking time to challenge the manner of their execution is a significant possibility of success on the merits. A court must also apply a strong equitable presumption against granting relief where the claim could have been brought at an earlier time that would have allowed consideration of the merits without the necessity of a stay. Indeed, since Nelson, many federal courts have invoked their equitable powers to dismiss claims deemed speculative or untimely.

Writing for a unanimous Court, Justice Anthony Kennedy reversed the Eleventh Circuit's decision and remanded Hill's case back for consideration on the merits.

Kansas v. Marsh

Constitutional challenges to capital punishment occur in state courts as well as the federal courts. The state of Kansas enacted a death penalty statute that established a presumption in favor of death by directing imposition of the death penalty when aggravating and mitigating circumstances were in equipoise (i.e., equal). A defendant convicted and sentenced to death un-der the statute challenged the constitutionality of this presumption and the Kansas Supreme Court found that the law violated the Eighth Amendment. However, the U.S. Supreme Court agreed to hear Kansas' appeal and reversed the state court decision, ruling in Kansas v. Marsh, ___U.S.___, 126 S.Ct., ___L.Ed.2d ___ 2006 WL 1725515 (2006) that the presumption was not unconstitutional. In essence, the ruling meant that a tie requires a jury to sentence a defendant to death.

In 1996, Michael Marsh broke into the home of Marry Ane Pusch and waited for her to return. He intended to hold Pusch and her 19-month-old daughter hostage and to extort money from her husband. Pusch came home earlier than expected and surprised Marsh. He shot and stabbed Pusch and then slit her throat. He set the house on fire and left the infant to die in the fire. Marsh was convicted by a jury of the capital murder of the infant, the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. During the penalty phase of the trial, the jury found there were three aggravating circumstances that justified the death penalty and that those circumstances outweighed the mitigating circumstances offered by Marsh. Marsh was sentenced to death for the murder of the child and to a life sentence for the killing of Marry Ane Pusch.

Marsh appealed his convictions and his death penalty sentence to the Kansas Supreme Court. He challenged the Kansas death penalty statute that stated a jury must sentence a defendant to death if the "existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist." The Kansas Supreme Court agreed with him that the statute created an unconstitutional presumption in favor of the death penalty when aggravating and mitigating circumstances had equal weight. The statute violated the Eighth Amendment's prohibition against cruel and unusual punishment, as applied by the Fourteenth Amendment to the states. The state appealed the decision to the U.S. Supreme Court, contending the Court had jurisdiction to hear a state law case because the decision had been based on the federal constitutional amendment.

The Supreme Court agreed to hear the case. The Court heard oral argument while Justice Sandra Day O'Connor was a member. With the confirmation of Justice Samuel Alito and the retirement of Justice O'Connor, the Court ordered reargument of the case. In a 5-4 decision the Court reversed the Kansas Supreme Court ruling. Justice Clarence Thomas, writing for the majority, first addressed the issue of jurisdiction. He concluded that although the Kansas court had vacated the capital murder conviction and ordered a retrial the case was sufficiently "final" to allow review. In addition, he found that the Kansas decision was not supported by adequate and independent state grounds that would bar review by the Supreme Court.

Turning to the substantive issues of the case, Justice Thomas pointed to a 1990 decision, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that involved a Arizona death penalty statute similar to Kansas's. The statutes had two things in common. First, both laws permitted the imposition of capital punishment where the jury found that the aggravating circumstances were not outweighed by the mitigating circumstances. Second, the two laws required the prosecutor to carry the burden of proving aggravating circumstances. With the burden of proof placed on the prosecutor, the defendant was required to offer mitigating evidence. However, the Arizona law differed from the Kansas law in one significant respect. Under the Arizona law, once the state had met its burden, the defendant had the burden of proving sufficient mitigating circumstances to overcome the aggravating circumstances and that a sentence less than death was warranted. In contrast, the Kansas law was more favorable to the defendant. The prosecutor was required to bear the burden of proving beyond a reasonable doubt that the aggravating circumstances were not outweighed by the mitigating circumstances. There was no "additional evidentiary burden on the capital defendant." Based on the similarities of the statutes, Justice Thomas concluded that the Walton precedent and reasoning, which sustained the constitutionality of the Arizona statute, should be applied to the Kansas statute.

Justice Thomas also relied on the Court's general death penalty principles. He found that the Kansas law rationally narrowed the pool of death-penalty eligible defendants by permitting the death penalty only if the prosecutor could prove aggravating circumstances. In addition, the Kansas law authorized a jury to consider any relevant mitigating evidence offered by the defendant. He rejected Marsh's argument that a jury could not make a reasoned decision, citing Kansas jury instructions that explicitly stated that a tie would result in the death penalty. A jury would be aware of the consequences if it found the mitigating and aggravating circumstances were in equipoise.

Justice David Souter, in a dissenting opinion joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, argued that in the Kansas scheme a finding of equipoise meant that the nature of the crime and the characteristics of the defendant were ignored in favor of a presumption of death. Therefore, such a tie breaker was "morally absurd." In addition, he contended that "the Court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States." Pointing to the use of DNA testing and the state of Illinois's death penalty moratorium, Souter believed that the number of false verdicts was "disproportionately high in capital cases."

Justice Antonin Scalia, in a concurring opinion, attacked the dissenters for inserting their personal beliefs against capital punishment into the decision-making process. He also sought to discredit the scholarly articles cited by Justice Souter in his dissent.

New Jersey Suspends Executions, Pending Study

The New Jersey Legislature in January 2006 approved a bill that suspended executions in the state. The bill also established the New Jersey Death Penalty Study Commission, charged with examining the state's capital punishment system, including aspects of fairness and costs. The commission is expected to release its report in November.

New Jersey performed its last execution in 1963. The U.S. Supreme Court invalidated most federal and state death penalty laws in Furman v. Georgia, 408 U.S. 153, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), due primarily to the procedures used in death penalty cases. The case effectively placed a moratorium on the death penalty in the nation for four years. In a series of cases decided in 1976, though, the Court upheld several state death penalty laws, thus reestablishing capital punishment in the U.S.

New Jersey reinstated the death penalty in 1982, though no prisoners have been executed since that time. Between 1982 and 2006, the state has brought 197 capital cases, with 60 people sentenced to death. Most of these sentences were later overturned, however, and those who had been convicted were later sentenced to life terms. According an advocate from New Jerseyans for Alternatives to the Death Penalty, "By any measure, the death penalty has failed the people of New Jersey who have come to know that it risks executing innocent people and wastes millions of taxpayer dollars." One group estimated that the New Jersey death penalty statute has cost the state about $253 million.

Prior to the New Jersey Legislature's action, the states of Illinois and Maryland suspended capital punishment by way of a governor's order. Moreover, the New York Court of Appeals in June 2004 ruled that the New York's death penalty statute was unconstitutional. People v. LaValle, 817 N.E.2d 341 (N.Y. 2004). About 12 other states are reportedly re-examining the death penalty laws.

Between 1994 and 2005, public support for capital punishment dropped from 80 percent to 64 percent. Sixty executions were performed in 2005, reduced from 98 that were performed in 1999. Public interest groups have continued to actively campaign against executions. These groups often point to statistics regarding the number of innocent people that have been wrongly sentenced to death. Since 1973, more than 120 people have been freed from death row due to the discovery of exculpatory evidence.

The New Jersey Legislature concurred with many of these opinions. The bill recognized that the state's experience with capital punishment caused significant expenditures of money and time, but these costs may not be justified as compared with other needs of the state. The legislation additionally recognized that the state lacked a procedure to ensure uniform application of capital punishment. Moreover, the legislature acknowledged public concern regarding the roles of race and socio-economic factors in the death penalty as well as the public awareness that individuals across the nation had been wrongly convicted of murder. According to the bill, "The execution of an innocent person by the State of New Jersey would be a grave and irreversible injustice."

Under the legislation, the New Jersey Death Penalty Study Commission was charged with considering seven issues. These include the following: (1) whether the death penalty rationally serves a legitimate penological intent, such as deterrence; (2) whether there is a significant difference between the cost of the death penalty from indictment to execution and the cost of life in prison without parole; (3) whether the death penalty is consistent with evolving standards of decency; (4) whether the selection of defendants in New Jersey for capital trials is arbitrary, unfair or discriminatory and if there is unfair, arbitrary, or discriminatory variability in the sentencing phase or at any stage of the process; (5) whether there is a significant difference in the crimes of those selected for the punishment of death as opposed to those who receive life in prison; (6) whether the penological interest in executing certain persons found guilty of murder is sufficiently compelling that the risk of an irreversible mistake is acceptable; and (7) whether alternatives to the death penalty exist that would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of victims' families.

Eight members of the New Jersey Senate introduced the bill on January 26, 2004. The Senate approved the legislation by a wide margin in December 2005. The State Assembly's Judiciary Committee voted 4-2 in favor of the bill, which led to its presentation before the full State Assembly. The bill passed by a vote of 55 to 21. Acting Governor Richard Codey, a Democrat, signed the bill into law. The legislation requires the commission to issue its report no later than November 15, 2006. The commission may introduce new legislation at that time. Under this legislation, anyone in the state who has been sentenced to death cannot be executed prior to 60 days after the commission issues its report.

Several members of the New Jersey Legislature said that they still supported the death penalty, even though they voted for the moratorium. Their greatest concern was that the state should have a better policy and better procedures in place.

Oregon v. Guzek

A criminal defendants accused of a capital crime must undergo a two-phase trial. During the guilt phase the jury hears evidence on whether the defendant committed the crime. If the jury issues a guilty verdict, the trial enters the sentencing phase. In this phase the prosecution attempts to prove a number of aggravating factors that justify the death penalty, while the defense presents mitigating factors that may convince the jury to refrain from recommending capital punishment. The U.S. Supreme Court has reviewed many decisions of state supreme courts concerning the constitutionality of various procedural rules governing death penalty juries. In Oregon v. Guzek, ___U.S.___, 126 S.Ct. 1226, ___L.Ed.2d___ (2006), the Court ruled that a defendant is not entitled to present new alibi evidence during the sentencing phase that is inconsistent with the finding of guilt.

Randy Lee Guzek was convicted in 1988 for capital murder in the state of Oregon. In 1987 Guzek and two associates killed a husband and wife during the course of a burglary; Guzek knew the murdered couple and had a grudge against them. The police found out about Guzek's relationship with the victims and arrested the trio. Guzek's two associates confessed to participating in the crimes and said Guzek was the ringleader. At trial Guzek's defense relied on two alibi witnesses, his mother and grandfather, who testified that he had been with both of them at different times during the evening when the crime was committed. The jury convicted Guzek of murder and sentenced him to death. In 1990 the Oregon Supreme Court upheld the conviction but reversed Guzek's death sentencing because his defense was not able to present mitigating evidence. A second jury sentenced Guzek to death in 1991 but in 1995 the Oregon Supreme Court again threw out the death sentence. This time the court ruled that the victims' family should not have been allowed to testify as to the impact of the crimes on their lives. In 1998 a third jury sentenced Guzek to death and in 2004 the state supreme court again overturned it. The court held that the jury should have been instructed to consider a sentence of life without parole. In addition, the trial court had erred by refusing to admit new alibi evidence from Guzek's mother and grandfather that cast doubt on whether he committed the crime. The supreme court relied on U.S. Supreme Court cases that seemed to indicate that alibi evidence must be admitted during the sentencing phase. The state of Oregon petitioned the U.S. Supreme Court, challenging this interpretation of case law.

The Supreme Court, in a 8-0 decision (newly confirmed Justice Samuel Alito did not participate in the consideration of the case), reversed the Oregon Supreme Court holding. Justice Stephen Breyer, writing for the Court, framed the question narrowly: Did the Eighth and Fourteenth Amendments give Guzek the right to introduce new evidence that he was not at the scene of the crime? This evidence would be inconsistent with his conviction for murder. More importantly, the evidence would not try to explain the manner in which he committed his crime and it was not unavailable to Guzek at the time of the original trial. These elements, plus the fact that Guzek could introduce transcripts of his relatives' testimony during the guilt phase of his first trial, undercut his claims. As to the constitutional argument, Breyer found nothing in the amendments "that provides a right to introduce new evidence of this kind at sentencing."

Breyer examined three U.S. Supreme Court cases relied on by the Oregon Supreme Court. In the first case the Court permitted a defendant to introduce evidence at the sentencing stage that she had played a small role in the crime. Such a mitigating factor was allowable because the defendant did not dispute that she had participated in the crime but rather sought to explain the circumstances of the offense. The key was that the defendant introduced evidence "that tended to show the defendant committed the crime." In addition, the evidence was not "directly inconsistent with the jury's finding of guilt." The Oregon Supreme Court had mistakenly concluded that it did not matter if the alibi evidence was inconsistent rather than consistent with the underlying conviction.

In Franklin v. Lynaugh, 487 U.S.164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), a plurality of the Court held that a capital defendant did not have an Eighth Amendment right to introduce evidence at sentencing that was designed to throw "residual doubt" on his guilt of the underlying crime. A later decision reinforced this holding, finding that residual doubt was not a mitigating factor in capital sentencing proceedings. Justice Breyer acknowledged the precedents did not resolve all the issues surrounding this topic. However, three circumstances convinced the Court to uphold Oregon's bar on allowing in the alibi evidence. First, the sentencing phase concerns itself with the how, not the whether of the crime. Second, the state and Guzek had litigated whether the defendant had committed the crime and the alibi evidence had been relevant in that phase. The law usually discourages the relitigation of cases that have been fully and fairly heard. The Court saw no reason to give defendants an opportunity to challenge their guilt during the sentencing phase. Finally, Justice Breyer noted that Guzek could introduce transcripts of the prior testimony at the resentencing; this would have a "minimal adverse impact" on Guzek's ability to present his alibi claim.

Justice Antonin Scalia, in a concurring opinion joined by Justice Clarence Thomas, agreed with the result of the case but was vexed by the majority's failure to clearly state that the Eighth Amendment does not give a convicted capital defendant in any circumstances the right to present evidence concerning residual doubts about guilt at his sentencing hearing. The third reason offered by Breyer, that Oregon would allow enough evidence into the record through trial transcripts, suggested that future defendants might argue that the amount of "residual-doubt evidence carried over from the guilt phase" was insufficient to satisfy the court's ruling in this case. He believed it would have been better for the Court to say all such claims were meritless.

Capital Punishment

views updated Jun 08 2018

Capital Punishment

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

Ayers v. Belmontes

The Supreme Court has reviewed numerous capital punishment cases that involve challenges about jury instructions. Because death penalty appeals can go on for decades, the Court is sometimes called on to determine whether a now defunct instruction should lead to the invalidation of a death sentence. In Ayers v. Belmontes, __U.S.__, 127 S.Ct. 469, 166 L.Ed.2d 334 (2006), the Court examined a California jury instruction that suggested jurors only consider mitigating evidence from the defendant that extenuated the gravity of the crime and to ignore evidence that showed the defendant might lead a constructive life if given a life sentence.

Fernando Belmontes was tried in 1982 in a California trial court for first degree murder. In March 1981 Belmontes burglarized a home and encountered a 19-year-old woman. He struck her head 15 to 20 times with a steel dumbbell bar he had brought with him. He was convicted of the crime and then the jury considered whether he should be sentenced to death during the sentencing phase of the trial. Belmontes introduced mitigating evidence that sought to show that he would make positive contributions to society in a prison environment. He testified that he done well when he was under the California Youth Authority (CYA), eventually becoming the number two person on a fire crew in the youth camp. In addition, Belmontes became friendly with a married couple who counseled him on religion while he was in the CYA. Though his commitment to religion lapsed after he was released from the CYA, Belmontes told the jury that he would rededicated himself to following a spiritual life. He buttressed this argument with testimony from his CYA chaplain, who called Belmontes' conversion genuine, and from the married couple who said he had participated in church activities. Despite this mitigating evidence the jury sentenced Belmontes to death.

Belmontes appealed his sentence through the California courts and then to the federal courts, arguing that the jury was given an instruction which prevented it from considering his forward-looking mitigating evidence. The jury instruction directed the jury to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." This general or catchall factor was referred to as "factor k." Belmontes contended that factor k limited the jurors to consider mitigating factors surrounding the crime itself rather than evidence relating to his character and background. The Ninth Circuit Court of Appeals agreed with Belmontes and overturned his sentence in 2005.

The Supreme Court, in a 5-4 decision, reversed the Ninth Circuit, concluding that there was no reasonable likelihood that the jurors interepreted factor k to exclude considering Belmontes' character evidence during the penalty phase. Justice Anthony Kennedy, writing for the majority, noted that the Court had examined factor k in two prior cases and had found that the proper inquiry was "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." In this case the Ninth Circuit had mistakenly applied "a narrow, and we conclude, an unrealistic interpretation of factor k." The instruction did not limit the jury's consideration to any other circumstance of the crime which extenuates the gravity of the crime, rather it directed the jury to consider "any other circumstance that might excuse the crime." Justice Kennedy concluded that the Ninth Circuit's narrow reading of factor k required "the surprising conclusion that remorse could never serve to lessen or excuse a crime."

Justice Kennedy found it "improbable" that jurors believed Belmontes' presentation of mitigating evidence was an exercise of futility because of factor k. Both the prosecution and the defense assumed the evidence was relevant. For example, the prosecutor argued that the evidence of Belmontes' religious beliefs was proper but that the evidence was weak. The prosecutor never argued that the jury could not consider the evidence. Justice Kennedy also noted that Belmontes' personal pleas to the jury "were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose." The final argument of defense counsel reinforced this conclusion. In the end, Justice Kenney found it "implausible" that the jury concluded it could not consider the mitigating evidence. The judge had directed the jury to consider all the evidence presented. From the record there was no reasonable likelihood that the jury failed to consider all evidence. Therefore, the death penalty was proper.

Justice John Paul Stevens, in a dissenting opinion joined by Justice David Souter, Ruth Bader Ginsburg, and Stephen Breyer, argued that factor k "sent the unmistakable message that California juries could properly give no mitigating weight to evidence that did not extenuate the severity of the crime."

Brewer v. Quarterman

This U.S. Supreme Court case is companion to another decided the same day (Abdul-Kabir v. Quarterman, No. 05-112874,), both presenting overlapping issues before the Court. As in the companion case, the petitioner in the present case, Brewer v. Quarterman, No. 05-11287, 550 U.S.___ (2007), claimed that jury instructions provided pursuant to the Texas capital sentencing statute prevented his sentencing jury from giving meaningful consideration to his constitutionally relevant mitigating evidence. (The "special issue" jury instructions have not been used since 1991, the year of Brewer's conviction.) A narrowly-divided U.S. Supreme Court threw out Brewer's death sentence based on the defective jury instructions. The high court's decision reversed the ruling of the Fifth Circuit Court of Appeals, which had denied such relief.

The majority opinion essentially relied on an earlier case, Penry v. Lynaugh, 492 U.S. 302 (1989), in which the Supreme Court had considered the same Texas "special issue" jury instructions. It concluded at that time that giving these instructions without directing a jury to consider mitigating evidence as it bears on personal culpability, did not provide a jury with an adequate opportunity to decide whether that evidence might provide a legitimate basis for imposing a sentence other than death.

Brewer was convicted of murder committed during the course of a robbery. At the sentencing hearing, he introduced evidence of an abusive father and his substance abuse. The trial judge rejected all of Brewer's proposed jury instructions designed to give effect to his mitigating evidence, and instructed the jury to answer two special issues (essentially asking whether the defendant committed the crime "deliberately," and whether the defendant was likely to be a "continuing threat to society"). In closing arguments, the prosecutor discouraged jurors from considering Brewer's mitigating evidence, instead advising them to focus on whether the facts objectively supported findings of deliberateness and future dangerousness (the special issues) and not on their personal views as to what might be an appropriate punishment for this particular defendant. The jury answered both in the affirmative, and Brewer was sentenced to death.

After the Texas Court of Criminal Appeals (CCA) affirmed the sentence and a state habeas petition was denied, Brewer filed a petition for habeas corpus in federal district court. He argued that he was entitled to federal habeas relief because the two special issues did not allow the jury to fully consider mitigating evidence presented on his behalf. He further argued that such limitation on the jury's ability to consider mitigating evidence was a violation under the Eighth Amendment to the U.S. Constitution, resulting in cruel and unusual punishment.

The Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 USC §2254, AEDPA (see above) grants federal habeas relief only if a state court's decision is contrary to, or involves an unreasonable application of, "clearly established federal law as determined by the Supreme Court of the United States." The federal district court granted conditional relief but the Fifth Circuit Court of Appeals reversed. The U.S. Supreme Court granted certiorari.

Justice Stevens delivered the narrow 5-4 majority opinion of the Court, citing its previous decision in Penry. In that case, the Court characterized Penry's abuse and mental impairment evidence as a "two-edged sword" that might diminish blameworthiness while at the same time indicate a probability of his dangerousness to society. When the possibility of that inference exists, the evidence is as likely to be viewed as aggravating as it is mitigating, and Texas' two special issue questions are too confining to allow proper consideration of mitigating evidence as it bears on the defendant's personal culpability. This, in turn, results in a decision that is contrary to, or involves an unreasonable application of, clearly established federal law as determined by the Supreme Court.

Even though Brewer's mitigating evidence was less convincing than Penry's, the Court noted that this was insufficient to support the CCA's refusal to consider the case under Penry's guidelines. Also, the fact that Brewer did not offer expert testimony did not excuse analysis under Penry, as nothing in that decision requires this. Further, the Fifth Circuit's mischaracterization of the law as requiring only that such mitigating evidence be given "sufficient mitigating effect" is not consistent with the "full effect" standard of Penry.

A strong dissent by Chief Justice Roberts, joined by Justices Scalia, Alito, and Stevens, opined that "We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to 'clearly-established' federal law. If the law were indeed clearly established … it should not take the Court more than a dozen pages of close analysis…." to articulate what that 'clearly established law' was. Instead, noted the dissent, the precedents relied upon offered state courts "a dog's breakfast of divided, conflicting, and ever-changing analyses."

Justice Scalia, with whom Justices Thomas, Alito (as to Part I), and Chief Justice Roberts also joined, wrote a separate dissent as well. He repeated his view "that limiting a jury's discretion to consider all mitigating evidence does not violate the Eighth Amendment."

Abdul-Kabir v. Quarterman

As background, one of the main reasons that Congress passed the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 USC §2254, was to limit lengthy appeals that typically precede executions. However, the AEDPA does afford certain protections for capital punishment convictees, and became the procedural vehicle (via a petition for its federal habeas corpus relief) used to access the U.S. Supreme Court in Abdul-Kabir v. Quarterman, No. 05-11284, 550 U.S.___ (2007). A narrowly-divided U.S. Supreme Court, in this and two other separate but related cases, threw out death sentences based on defective jury instructions given in Texas state courts. (See also, Brewer v. Quarterman, No. 05-11287, ___U.S.___ (2007), and Smith v. Texas, No. 05-11304 ___U.S.___ (2007).) The high court's decision reversed the ruling of the Fifth Circuit Court of Appeals, which had denied such relief.

Jalil Abdul-Kabir (formerly known, prosecuted, and convicted as Ted Calvin Cole), joined his stepbrother and stepbrother's wife in robbing and murdering the wife's grandfather. Cole strangled him with a dog leash, and the three spent the stolen $20 on beer and food.

Cole's accomplices surrendered and confessed, but Cole was tried by a jury and convicted of capital murder in a Texas state court. At the sentencing phase, prosecutors presented copious evidence including a prior murder conviction and guilty pleas to aggravated sexual assault on two boys. In response, Cole presented mitigating evidence regarding his childhood neglect and abandonment, as well as expert testimony related to neurological damage that might have caused his violent propensities. The trial judge instructed the jury to answer two special issues (essentially asking whether the defendant committed the crime "deliberately," and whether the defendant was likely to be a "continuing threat to society"). However, the prosecutor had discouraged jurors from considering Cole's mitigating evidence, instead advising them to focus on whether the facts objectively supported findings of deliberateness and future dangerousness (the special issues) and not on their personal views as to what might be an appropriate punishment for this particular defendant. The jury answered both in the affirmative, and Cole was sentenced to death.

After the Texas Court of Criminal Appeals (CCA) affirmed the sentence and a state habeas petition was denied, Cole filed a petition for habeas corpus in federal district court. The AEDPA (see above) grants federal habeas relief only if a state court's decision is contrary to, or involves an unreasonable application of, "clearly established federal law as determined by the Supreme Court of the United States."

The Supreme Court had previously ruled, in Penry v. Lynaugh, 492 U.S. 302 (2001), that juries must be given instructions that allow them to give full consideration and meaningful effect to a defendant's mitigating evidence, and to express their reasoned moral response to that evidence in determining an appropriate sentence.

Accordingly, Cole argued that he was entitled to federal habeas relief under the AEDPA because the two special issues did not allow the jury to fully consider mitigating evidence presented on his behalf. He argued that such limitation on the jury's ability to consider mitigating evidence was a violation under the Eighth Amendment to the U.S. Constitution, resulting in cruel and unusual punishment.

The federal district court, however, denied Cole's petition, relying on the Fifth Circuit Court of Appeals' analysis for evaluating Penry claims. Under Fifth Circuit analysis, a defendant was required to show that he or she suffered from a severe, permanent, or untreatable mental disorder, and further show a nexus between this disorder and the criminal act attributed to it. It was determined that Cole did not meet that standard, and his petition was denied. The Fifth Circuit affirmed, but the U.S. Supreme Court rejected this analysis in another Fifth Circuit case, Tennard v. Dretke, 542 U.S. 274, effectively vacating the denial of Cole's application as well.

On remand, the Fifth Circuit considered the two special issue questions, especially the one addressing the future dangerousness of a defendant. The appellate court found that Cole's neurological damage (ostensibly affecting his impulse control) did qualify as mitigating evidence, but that this evidence could be fully considered and weighed under the two special jury questions. Therefore, the Fifth Circuit concluded that the state court decision was not contrary to, nor did it misapply, federal law, and Cole was not entitled to federal habeas relief under the AEDPA.

Now fully before the U.S. Supreme Court, Cole's fortunes changed. By a narrow 5-4 vote, the Court held that there was a reasonable likelihood that the Texas trial court's instructions (the two special issues) prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence. This, in turn, resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, invoking the AEDPA. Accordingly, Cole's death sentence was reversed, and the case remanded.

However, in pointing to the relevant "clearly established federal law" as established by the Supreme Court, the Court referred to multiple previous rulings and cases, including Penry (see above)and Tennard, (see above), as well as Lockett v. Ohio, 438 U.S. 586, and Franklin v. Lynaugh, 487 U.S. 164. Essentially, the Court delineated a holding based on all these prior cases, repeating that where mitigating evidence served as a "two-edged sword" that might diminish blameworthiness while at the same time indicate dangerousness to society (as in mental impairment), the two special issue instructions did not allow jurors an ability to adequately consider the evidence. This was because the evidence was as likely to be viewed as aggravating as it was as mitigating, and the two special issue questions were too confining to allow proper consideration.

That it took the majority such lengthy and scrupulous reasoning in coming to the above decision was precisely what triggered the strong dissent from Chief Justice John Roberts, joined by Justices Alito, Scalia, and Thomas. Justice Roberts referred to the majority opinion as "revisionist," since, according to the dissent, there was no "clearly established federal law," as evidenced by the Court's own deliberations in the present case. Justice Scalia also wrote a separate dissent in which he cautioned that "this Court's vacillating pronouncements" would produce grossly inequitable treatment of death row inmates.

Although 47 death row inmates were sentenced under the subject Texas rules, the jury instructions were abandoned by the state in 1991. (Cole was convicted in 1988.)

Panetti v. Quarterman

Under the Eighth Amendment to the U.S. Constitution, a state cannot carry out the death sentence on a prisoner who is insane. This rule, established in Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), applies though a court has determined that the prisoner is competent to stand trial for the crime. Thus, even when a prisoner has previously been found to be competent, the prisoner may later prove that he or she is incompetent to be executed. Once the prisoner has shown in a preliminary hearing that the prisoner's mental state would bar his or her execution, the prisoner is then entitled to an adjudication about whether he is competent to be executed.

In 2007, the U.S. Supreme Court clarified the procedures that must be followed when a court determines whether a prisoner is competent to be put to death. In Panetti v. Quarterman, No. 06-6407, 2007 WL 1836653 (June 28, 2007), the Court held that both state and federal courts had failed to provide the proper procedures to an inmate who had claimed incompetency.

In 1992, Scott Louis Panetti, dressed in camouflage, drove to the house of his estranged wife's parents. He broke the front door lock and proceeded to kill his wife's mother and father in front of his wife and daughter. He thereafter kidnapped his wife and daughter before surrendering to police the following day.

He was tried for capital murder in 1995, and Panetti chose to represent himself. The court ordered Panetti to undergo a psychiatric evaluation, which showed that he suffered from a fragmented personality, delusions, and hallucinations. He had previously been hospitalized for these disorders, and doctors had prescribed mediation for these mental disorders. According to one expert, it would have been difficult for anyone who did not suffer from extreme psychosis to tolerate. Panetti's wife also testified that he had psychotic episodes during their marriage, including an incident where he believed that the devil and possessed their home.

Despite this evidence, however, the court allowed Panetti to stand trial. During this trial, Panetti's behavior was described as "bizarre," "scary," and "trance-like." According to an attorney present during the case, his behavior both before the jury and in private evidenced that he was suffering from mental incompetence. Moreover, the attorney said that his behavior was "truly a judicial farce, and a mockery of self-representation." Evidence presented at trial showed that Panetti had stopped taking his medication a few months prior to the trial. An expert testified that the failure to take this medication would exacerbate the mental problems. Panetti's condition appeared to worsen before the end of the trial.

A jury in a Texas state court found Panetti guilty of murder and sentenced him to death. Panetti appealed his conviction on direct appeal to the Texas Court of Criminal Appeals, but the court denied his request for relief. Panetti also sought relief through a state habeas corpus action but was again denied relief. The U.S. Supreme Court denied Panetti's petitions for certiorari on two occasions in 1998.

Pursuant to 28 U.S.C. §2254, Panetti subsequently filed a writ of habeas corpus in the U.S. District Court for the Western District of Texas. In 2001, the district court rejected his claims. Two years later, the Fifth Circuit Court of Appeals also denied relief. The Supreme Court for a third time denied certiorari to review Panetti's case. At both the state and federal level, Panetti focused his argument on the al-leged fact that he was incompetent to stand trial and to waive his right to counsel.

In 2003, a state judge set Panetti's execution date for February 5, 2004. Panetti at that time filed a motion claiming that he was incompetent to be executed. The judge denied this motion. Panetti then appealed this denial to the Court of Criminal Appeals, but the appellate court concluded that it did not have the power to review a decision about whether a prisoner is competent to be put to death.

Panetti returned to the federal courts, filing a motion for stay of execution and arguing that the state had violated the procedures established in Ford. Panetti initially failed to include evidence of his mental state at the time that he filed his habeas request. After submitting this evidence, the district court stayed his execution so that a state court could consider his mental state at that time. Evidence presented at that time showed that Panetti did not understand the reasons why he was being executed. After a series of procedural moves, the court appointed two experts to evaluate Panetti. These experts concluded that Panetti's behavior was due to "calculated design," meaning that he acted insane in order to manipulate the proceedings.

The federal district court concluded that the state court's proceedings were inadequate under the Constitution, but the court nevertheless denied relief. Panetti v. Dretke, 401 F. Supp. 2d 702 (W.D. Tex. 2004). The district court concluded that Panetti had failed to prove incompetency as the Fifth Circuit had defined it. The Fifth Circuit subsequently affirmed the district court's conclusion, and the Supreme Court then agreed to review the case.

In an opinion by Justice Anthony Kennedy, the Court reversed the decision of the lower federal courts. The Court first concluded that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, did not preclude habeas review of Panetti's case. The Court then reviewed the procedures that the state courts had followed to determine Panetti's competency. Under Ford, the determination of whether Panetti was insane could not be made solely on the basis of examinations performed by state-appointed psychiatrists. Other evidence, such as the state court's refusal to transcribe its proceedings regarding the competency hearing, further showed that the procedures had been inadequate.

The Court likewise reviewed the Fifth Circuit's standard of incompetency and determined that it was too restrictive. According to the Supreme Court, the prisoner's delusions should have been considered when the court determined competency. Under the Fifth Circuit's standard, the lower courts did not consider the delusions to be relevant so long as the defendant was aware that the state had identified a link between the crime and the punishment that was inflicted.

Justice Clarence Thomas, joined by three other justices, dissented. According to Thomas, the case should have been "simple" because Panetti's arguments had been heard numerous times by the lower courts. Moreover, Thomas concluded that the AEDPA barred this case because the claim did not meet the statutory requirements for filing a "second or successive" habeas application under the statute. Thomas also criticized the majority for imposing a new standard for determining incompetency without engaging in any sort of Eighth Amendment analysis.

Smith V. Texas (Smith II)

This was the second time before the U.S. Supreme Court for LaRoyce Smith, a Dallas County, Texas inmate who was sentenced to death in 1991 following a first-degree murder conviction. At the original criminal trial, Smith's attorney had presented extensive mitigating evidence regarding Smith's diminished intellectual capacity, learning disabilities, special education, and troubling family background. Following conviction, Smith petitioned for habeas corpus relief, claiming that the jury instructions pro-vided pursuant to the Texas capital sentencing statute prevented his sentencing jury from giving meaningful consideration to his constitutionally relevant mitigating evidence. The U.S. Supreme Court agreed and remanded his case in Smith v. Texas, 543 U.S. 37 (2004) (Smith I.

On remand, the Texas Court of Criminal Appeals nonetheless found that the possible constitutional error in the jury instruction was not so "egregiously injurious" to Smith as to make his trial fundamentally unfair. It therefore denied relief once more and let stand Smith's death sentence. Ex Parte Smith, 185 S.W.3d 455 (Tex. Crim. App. 2006). It is this second decision that came before the Court in the present case, Smith v. Texas, No. 05-11304, 550 U.S.___ (2007).).

The subject jury instructions have not been used since 1991 and have stimulated numerous appeals before the U.S. Supreme Court. The Supreme Court had previously ruled, in Penry v. Lynaugh, 492 U.S. 302 (2001), that juries must be given instructions that allow them to give full consideration and meaningful effect to a defendant's mitigating evidence, and to express their reasoned moral response to that evidence in determining an appropriate sentence. (See also, Brewer v. Quarterman, No. 05-11287, (2007), and Abdul-Kabir v. Quarterman, No. 05-112874, (2007).)

Texas tried to cure the instructions by modifying them only to the point that juries could effectively "nullify" the parts that were struck down by the Supreme Court. However, that remedy (the "nullification instruction") was also shot down by the Supreme Court in Penry v. Johnson, 532 U.S. 782, (Penry II.)

Smith's sentencing took place between Penry I and Penry II. When Smith's second appeal was heard, the Texas Court of Criminal Appeals held that Smith had not preserved a Penry II challenge to the nullification jury instruction. Smith had only made a Penry I challenge at trial. Under Texas law, in determining whether reversal is warranted for an error in jury instructions, Smith was required to show "egregious harm." Therefore, finding that he did not meet his burden, the court denied relief.

But the U.S. Supreme Court disagreed. It held that the Texas Criminal Court had predicated the "egregious harm" requirement on a mistaken understanding of the federal right Smith was asserting. The appellate court mistook the Supreme Court's holding in Smith I as granting relief based on the nullification instruction. It then concluded that since Smith had never objected to the nullification charge, he had not preserved that claim for Smith II.

Justice Kennedy delivered the opinion of the majority, in which he was joined by Justices Stevens, Souter, Ginsburg, and Breyer. The opinion concluded that the Texas appellate court's misinterpretation of federal law on remand from Smith I could not form a basis for imposing upon Smith the higher standard of "egregious harm." Because Smith did challenge as unconstitutional the special issue jury instructions, he was entitled to relief under the state's "harmless error" standard instead.

Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Scalia, dissented. The dissent began with the statement, "The issue in this case is less complicated than the opinion of the Court suggests." The dissent went on to opine that the case could have been dismissed for want of jurisdiction. The constitutional error in Smith I could have been avoided by changing the instructions. But defense counsel never objected to the text of the instructions nor proffered modifications, instead choosing to argue that Penry I precluded a death sentence for Smith. As a result of this failure to object, the Texas Criminal Court was entitled to use a stricter procedural rule "that represents an adequate and independent state-law ground for [its] decision."

Capital Punishment

views updated Jun 11 2018


The execution of a criminal under death sentence imposed by competent public authority. Unlike the act of a private person exacting revenge for a wrong done to himself or to his family, this penalty manifests the community's will to vindicate its laws and system of justice, to atone for wrongful conduct, and to deter criminal acts by others in the future. Among some primitive peoples, a popular assembly might order death not only to retaliate for murder or treason, but also to appease spirits offended by sorcery, incest, or sacrilege.

Ancient Practices. Capital punishment existed in the legal codes of the ancient Middle Eastern kingdoms. These codes commonly prescribed death for homicide and for some religious or sexual offenses. Thus, for Israel, it was declared that "whoever sheds the blood of man, by man shall his blood be shed" (Gn 9.6) and further that "you shall not let the sorceress live. Anyone who lies with an animal shall be put to death. Whoever sacrifices to any god, except to the Lord alone, shall be doomed" (Ex 22.1719). The law of the Israelites at one time or another listed as capital crimes homicide, bearing false witness in a capital charge, kidnapping, insult or injury to a parent, sexual immorality, witchcraft or magic, idolatry, blasphemy, and sacrilege. Hebrew law clearly distinguished between voluntary and involuntary manslaughter: "When a man kills another after maliciously scheming to do so, you must take him even from my altar and put him to death" (Ex 21.14). It likewise embraced the lex talionis: "If injury ensues, you shall give life for life, eye for eye, tooth for tooth, hand for hand" (Ex 21.2324). It is generally understood that this principle of retribution was enunciated not only to sanction stern penalties, but also to protect offenders from excessive punishments. When death was prescribed, the sentence was more often carried out by stoning, although hanging, beheading, strangulation, and burning were also used. Among the Babylonians, the Code of hammurabi distinguished between manslaughter and willful homicide and also proclaimed the lex talionis. Death and mutilation were frequent penalties. The Assyrian Code likewise mentioned death and mutilation, but it remains questionable how often such penalties were inflicted. In the Hittite kingdom, death was reserved mainly for crimes committed by slaves or for special crimes against the king.

The term capital punishment derives from caput, a word used by the Romans variously to mean the head, the life, or the civil rights of an individual. Roman law also knew the death penalty as the summum supplicium. In addition to death, Roman law looked on perpetual hard labor and banishment (interdictio aquae et ignis et tecti denial of fire, water, and shelter) as lesser capital punishments. Banishment meant in effect a grave loss of one's civil rights or status (deminutio capitis ). During the Republic, death was imposed mainly for crimes among the military. Under the emperors, it became increasingly common as the penalty for a much wider range of offenses. Rome early embraced the lex talionis in its Law of the Twelve Tables (450 b.c.). Ancient Greece and Rome generally looked on homicide, treason, and sacrilege as capital offenses. Later Roman law put other crimes, such as arson and false coining, in the same category. The Greeks imposed death in several ways, e.g., sometimes a free man would be permitted to take poison, and a slave would be beaten to death. Roman usages included strangulation, exposure to wild beasts, crucifixion, and the culeus (drowning a condemned man tied up in a sack with a cock, a viper, and a dog).

Christian Attitudes Towards Capital Punishment. Ancient Israel had prescribed capital punishment for some crimes, but the Old Testament spoke also of divine mercy: "As I live, says the Lord God, I swear I take no pleasure in the death of the wicked man, but rather in the wicked man's conversion, that he may live" (Ez 33.11). Few took these words, however, as a restriction on the community's power to execute a justly condemned criminal. The same proved true of Christ's new teaching on the lex talionis: "You have heard that it was said, 'An eye for an eye,' and, 'A tooth for a tooth.' But I say to you not to resist the evil-doer; on the contrary, if someone strike thee on the right cheek, turn to him the other also" (Mt 5.3839). Christians tended to hear in these words an exhortation to be quick to waive lawful rights out of love even for an erring neighbor. Along with it, however, they have recalled St. Paul's defense of civil authority: "For it is God's minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry the

sword. For it is God's minister, an avenger to execute wrath" (Rom 13.4).

Over time the essence of this traditional concept of the state as the upholder of justice and of its competence to punish with measures it deems necessary and reasonable has been accepted by the Church. At the same time, the reasons for and outlook upon capital punishment have differed over the centuries. For ease of presentation this article focuses on five more or less distinct periods.

From the Time of Jesus to the 4th Century. The earliest Christian experience at the height of the Roman Empire was chiefly that of victim. Every execution recorded in the New Testament is seen as an unjust abuse of power the beheading of John the Baptist, the crucifixion of Jesus, the stoning of Stephen, the death of Antipas of Pergamum; not to mention the martyrdom traditions of Peter and Paul and so many others under Roman emperors from Nero to Diocletian. Capital punishment was an unsavory institution used as a blunt instrument of power-politics. Its most memorable function was providing the early Christian community with a crowd of witnesses ('martyres') who were revered for their faith and courage in shedding their blood at the hands of unjust imperial agents.

The relatively few Christian records that survive from this first period reflect the utter distaste with which the practice was generally viewed. Athenagoras of Athens declared executions to be intolerable even if in accordance with the code of justice, and Tertullian held there could be no exception to God's law against taking human life. The Apostolic Tradition, usually dated in the third century, forbade any Christian in authority from imposing a death penalty. Canon 56 of the Council of Elvira (a.d. 306) prohibited Christian magistrates from attending church services during their term of office because of the danger of their having been involved in legal bloodshed. Lactantius (c. 240320), though ultimately inconsistent, at least in his early work insisted that no Christian could kill either in war or by being involved in capital trials, both of which were unacceptable actions for any follower of Christ, even though he generally acknowledged the right of the state to use the sword.

The Emperor Constantine to the 10th Century. With the conversion of Constantine in the fourth century leading to the adoption of Christianity as the state religion of the Roman Empire, Christians found themselves cast willy-nillyin the role of potential executioners. The problems this created were monumental and the stances adopted were diverse. A classical event for the study of this transitional era is the execution of Priscillian, heretical Bishop of Avila, by Emperor Maximus in Trier in 385. It is the first documented instance of Christians killing fellow Christians for heresy. Carried out with the collusion of Bishop Ithacius, it provoked outrage. Bishops Martin of Tours, Ambrose of Milan, and Sergius of Rome severed communion with Ithacius and the other bishops involved. Their protest may have had more to do with the fact that a church leader was executed by the civil authority for a religious offence than with the execution as such. In any event, the ominous event was to cast a long shadow for centuries to come.

Ecclesiastics like Ambrose and Augustine and John Chrysostom never lost sight of the fact that "the Church abhors bloodshed." In reply to a Christian governor who asked for his advice, Ambrose made it clear that, in his opinion, a Christian magistrate should avoid killing, noting that "even pagan governors commonly boast of never having executed a man" (Dudden, 1:121, n.2). This ideal was even more pronounced in augustine, although later misinterpretations long obscured this fact. Commenting on Rom 13.4, he defended severity for the sake of social order, but praised the Christian instinct to moderate juridical sternness. His advice to Christian magistrates judging heinous murder cases was to "let your indignation be tempered by considerations of humanity." As long as "the violent excess of savage men be restrained, why do you not commute your sentence to a more prudent and more lenient one?" (Ep. 133 and 134).

Despite the chaos and violence that followed the collapse of the Roman Empire and the centuries of migrations of peoples all over Europe and beyond, the ideal, though often obscured, was never obliterated. The penitential books of the 8th and 9th centuries, in dealing with capital crimes, considered them as sins to be expiated according to their seriousness, but never to be avenged by use of the death penalty. In mid-ninth century Pope Nicholas I, in a letter to the recently-converted Bulgars, actually recommended abolition as the Christian ideal: "You should save from death not only the innocent but also criminals, because Christ has saved you from the death of the soul" (quoted by Compagnoni, p. 47).

Vestiges of the earlier attitude of aversion to the use of capital punishment, even when it was theoretically justifiable, survived in church canons declaring unfit for sacramental ordination anyone who had ever imposed, carried out, or otherwise assisted in carrying out an execution.

The Hildebrandine Reform through the Middle Ages. In the 11th century the Hildebrandine (gregory vii) Reform brought with it certain readiness to incorporate the use of force into the service of the church. The Augustinian conditions and restraints on using violence and waging justified war were offset by church indulgences guaranteeing that this newly authorized kind of killing, done in the interests of the church, was not only ethically unobjectionable but was in fact the special work of God Deus vult ("God wills it").

The two centuries from 1050 to 1250 saw significant change in church acceptance and endorsement of violence. gratian recognized and grappled with the problem in his Decretum (c. 1140). In his famous Causa 23, he tried to reconcile the earlier ideal and the current developing practice. He cited the advice of Jesus to "turn the other cheek" no less than six times in this single Causa, and went back to ponder the commandment, "Thou shalt not kill," three different times. In the end, Gratian adopted the Augustinian suggestion that these precepts of Christ were to be observed "in the preparation of the heart, not the conduct of the body." He concluded that executions could be lawfully carried out by Christians in certain circumstances. By the 13th century canonist generally agreed that the "hard sayings" of Jesus about loving one's enemies, doing good to those who hate you, endlessly forgiving sinners, and never taking revenge were best presented as spiritual advice to private individuals. In the legal forum, a more useful principle was to be found in Roman law "vim vi repelleret." It affirmed the legality of using proportionate violence to counter unjust aggression tit for tat, an eye for an eye, a life for a life.

On the theological side Peter the Chanter (d. 1197) was a lonely voice objecting to the trend toward justifying the killing of all manner of offenders.

This change of church policy can also be traced gradually in the formal documents of the period. In 1184 Pope Lucius III issued the decretal Ad abolendam, sometimes called the "founding charter of the Inquisition," that opened the way for the use of capital punishment as the standard remedy for dealing with recalcitrant heretics, while identifying at the same time a long list of diverse groups designated as heretics including, for the first time, the Waldenses.

It was in this same period that a group of Waldenses in 1210 seeking to be reconciled with the Church were required to affirm that: "the secular power can, without mortal sin, exercise judgment of blood, provided that it punishes with justice, not out of hatred, with prudence, not precipitation" (Denzinger, 257).

The fact that the canonists had found a way to obviate earlier ambivalence helped clear the way for Canon 3 of the Fourth lateran council in 1215, endorsing as official policy henceforth that heretics were to be handed over to the secular power for punishment after the bishops had applied all the sanctions of canon law (which itself prohibited bloodshed). Sixteen years later, Pope Gregory IX in his constitution, Excommunicamus (1231) incorporated into canon law the 1224 imperial constitution of Frederick II, acknowledging burning at the stake by the secular arm as the appropriate punishment for a recalcitrant heretic.

On the theoretical plane, in medieval times, St. thomas aquinas made his classic defense of the death penalty on the ground that "if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good" (Summa Theologiae 2a2ae, 64.2). Citing Aristotle, he argued that "by sinning man departs from the order of reason and falls into the slavish state of the beasts" (ST 2a2ae, 64.2 ad 3). Aquinas, however, also proposed as a working jurisprudential norm that "in this life penalties should rather be remedial than retributive" (ST 2a2ae, 66.6). Thus, while upholding capital punishment in principle on grounds of retribution, social defense, and deterrence, he sounded an interestingly modern note by the priority he gave to rehabilitation as a penal aim.

The Rise of the National State to Modern Times. With the rise of the national state, the practice of capital punishment continued unabated and unscrutinized. The countries of Europe invoked the death penalty when heresies and non-conformity appeared to threaten national unity and used it to punish more offenses.

Martin luther harked back to the Augustinian position that execution of heretics was wrong, but otherwise he actually reinforced its broad use by the state for all other offenses with his doctrine of the two kingdoms. The sacralization of the executioner as God's avenger in the secular order was more indispensable than ever. Five years after Luther's death, John calvin executed Michael Servetus in Geneva for heresy (1553). When he wrote to explain himself to the leading Lutheran theologian, Philip Melanchthon, to the surprise of many, Melanchthon completely approved of Calvin's action, saying that since Servetus denied the Trinity, he was not so much a heretic as a blasphemer, and blasphemy was a capital crime according to Roman Law. Except for a few relatively small pacifist groups like the Quakers, Protestants like Catholics questioned neither the theory or the practice.

The so-called "Roman Catechism" drafted and published by order of the Council of trent (1566) summarized the official Catholic position. Its treatment of the Commandment "Thou shalt not kill" is, for the most part, an eloquent affirmation of the gift of life, filled with the spirit of Jesus and the Gospel. But in explaining the Commandment the Catechism acknowledges some exceptions, among them killing in self-defense, in a just war, and capital punishment. With regard to the last, it says:

Even among human beings there are some limitations to the extent of this prohibition of killing. The power of life and death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment, such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the state is exercised by taking the guilty life of those who have taken innocent life . [Part III, c. 5]

The practical consequences of this acceptance and approval of capital punishment can be seen in an extreme example at the end of the 16th century. In a concerted effort to stamp out brigandage in the Papal States, Sixtus V (15851590) in his first five months as pope, had over 7,000 Roman bandits beheaded and had the heads of many posted on the Ponte Sant'Angelo. He celebrated his 'success' by having a medal struck bearing his image and the inscription 'Securitas Perfecta.' Meanwhile England was witnessing executions that were even more bloody if fewer in number carried out in the name of religion. In Paris the "grand gibbet" of Montfaucon that could hang up to 60 people simultaneously, rivaled Notre Dame Cathedral as an architectural marvel.

Few at the time seriously contested the state's right to execute criminals or the essential reasonableness of capital punishment. It was a young Italian, Cesare Beccaria, who opened the modern debate on the institution itself with his essay Dei delitti e delle pene (1764). On the basis of his own theory of society, he rejected the state's right to take a citizen's life. Far more influential, however, was his critique of the death penalty as cruel, unreasonable, and ineffective. Within two years his essay had appeared in French translation and had become known all over Europe. Beccaria spoke of Montesquieu's influence on his thought, but he himself merits the title of father of modern penal reform.

Many trace the abolition of capital punishment in Tuscany (1786) and Austria (1787) to Beccaria's challenge to "enlightened" rulers. His essay also stimulated Samuel Romilly and other leaders of the crusade to reform England's penal code, a movement that reduced British capital offenses to four crimes by 1861. In the U.S. at the end of the 18th century, Dr. Benjamin Rush and others led a campaign for the abolition of capital punishment in Pennsylvania and elsewhere. By the dawn of the 20th century, philosophers and theologians were beginning to join social reformers in their critique of capital punishment.

The Twentieth Century. The symbolic dawn of a new age opened with the formation of the United Nations. The words of the UN's Universal Declaration of Human Rights (1948) echo in Pope John XXIII's Pacem in Terris (1963), where he stated,

Any human society must lay down as a foundation this principle: every human being is a person By virtue of this he has rights and duties of his own which are universal, inviolable, and inalienable. If we look upon the dignity of the human person in the light of divinely revealed truth, we cannot help but esteem it far more highly. (nn. 910).

In 1972 the U.S. Supreme Court ruled against the death penalty because of inequities in imposing sentences (Furman v. Georgia ). A number of states and the federal government set about passing laws to get around the accusation of a capricious selection process and thus get around the Eighth Amendment's ban on cruel and unusual punishment. In November 1974, the National Conference of Catholic Bishops, in a decision that was far from unanimous, made a simple declaration in opposition to the death penalty. Two years later, their position was far more clear and effective. They took as guidelines: 1) the sovereignty of God over life; 2) the duty to aid the criminal and not merely punish; 3) the awareness of human fallibility; 4) the need of reconciliation; and 5) the growing awareness of the complexity of criminal actions and motivations. Their pastoral conclusion was that the death penalty should be abolished, a position articulated in terms resonant with the Church's opposition to abortion and euthanasia, and the bishops urged Catholics to range themselves at the side of the Quakers, who had a long tradition of struggle in behalf of life.

About the same time (March 1976), the Canadian bishops, for pastoral reasons, passed a resolution favoring the abolition of the death penalty and calling for prison reform and the reform of the entire justice system. Its action was taken in respect for life, while it termed the death penalty a violent measure which begets violence. Writing in the Osservatore Romano (Feb. 20, 1977), G. Concetti stated forthrightly that the right to life is "primordial and inviolable" and that the state lacks the right to take it away. In the modern understanding the state is viewed not as having absolute rights, like the divine right of kings, but more accurately as a limited mechanism with rights and powers limited even as are the rights of the citizens it represents.

In 1978 French theologian Jean-Marie Aubert, a pioneer in moving the spotlight away from the theoretical issue of the state's right to kill and to focus it rather on the sordid practice itself, affirmed that "at the level of historical analysis, we can only conclude that capital punishment is an evil, barbaric institution, unworthy of any and every society today" (Chrétiens et Peine de Mort, p. 90). Aubert's book appeared the same year in which Pope john paul ii was elected and launched his continuing campaign to change minds, hearts and policies so as to end the practice of deliberately killing human beings, no matter how heinous their crimes.

John Paul addressed "the problem of the death penalty" in his encyclical Evangelium vitae (March 25, 1995). He noted that "there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely." John Paul acknowledged that public authority must "redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated." And he adds,

for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent (n. 56).

The Catechism of the Catholic Church quotes Evangelium vitae verbatim, but it prefaces the section on capital punishment saying, "the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust agressor" (n. 2267). Taking their cue from the Pope John Paul, the U.S. Catholic Bishops in November 2000 included in a statement on crime and criminal justice an appeal for all Americans to "join us in rethinking the difficult issue (of capital punishment) and committing ourselves to pursuing justice without vengeance. With our Holy Father we seek to build a society so committed to human life that it will not sanction the killing of any human person."

Bibliography: NCCB Statement on Capital Punishment, Origins 6 (1976) 389395. Responsibility & Restoration: A Catholic Perspective on Crime and Criminal Justice, a statement of the catholic bishops of the united states. (Washington, DC, 2000). j. megivern, The Death Penalty. An Historical and Theological Survey (New York, 1997). j-m. aubert, Chrétiens et Peine de Mort (Paris, 1978). g. h. stassen, ed., Capital Punishment: A Reader (Cleveland, 1998). f. compagnoni, "Capital Punishment and Torture in the Tradition of the Roman Catholic Church," Concilium 120 (10/1978). n. blazquez, Pena de Muerte, #3 in Series Teologia Siglo XXI (Madrid, 1994).

[d. r. campion/

e. j. dillon/

j. megivern]

Capital Punishment

views updated May 23 2018

Capital Punishment

Penal practice in premodern Europe

The abolition movement

Effectiveness of capital punishment


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.]


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.

Capital Punishment

views updated May 23 2018


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.


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.


Witherspoon v. Illinois.

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