Capital Punishment in the United States

Capital Punishment Definition

The punishment of death. See also Capital Punishment in the legal Dictionaries.

Capital Punishment in the United States

The United States stands apart from the general trends on capital punishment. It is the only Western industrialized nation where executions still take place. Furthermore, it is the only nation that combines frequent executions with a highly developed legal system characterized by respect for individual rights. During 2007, however, a de facto moratorium on the death penalty was in place in states where lethal injections are used while the Supreme Court of the United States considered the constitutionality of lethal injections.

Many public opinion polls indicate that capital punishment enjoys significant support in the United States. Nonetheless, it remains a highly controversial and hotly contested issue. Opponents even question whether a high level of support actually exists for the death penalty. They note that public-approval ratings of capital punishment as a preferred penalty decline when the alternative punishment is a “true” life sentence – that is, life imprisonment with no possibility of release. (1)

The Capital Punishment contents in this American legal encyclopedia also includes: Capital Punishment Distribution of Authority, Capital Punishment and the Constitution, Capital Punishment Current Conditions, Capital Punishment Delay, Efficiency and Fairness, Capital Punishment Disparity in Application and Capital Punishment Conflicting Efforts at Reform. For a worldwide overview click here

Capital Punishment in the U.S.

For a review of capital punishment in the world, click here.

Many public opinion polls indicate that capital punishment enjoys significant support in the United States. Nonetheless, it remains a highly controversial and hotly contested issue. Opponents even question whether a high level of support actually exists for the death penalty. They note that public-approval ratings of capital punishment as a preferred penalty decline when the alternative punishment is a “true” life sentence–that is, life imprisonment with no possibility of release.

Distribution of Authority

The United States has a federal system of government, in which power is divided between a central (national) authority and smaller local units of government (see Federalism). Federal law provides the death penalty for more than 40 crimes, including treason, various forms of aggravated murder, and large-scale drug trafficking. However, the federal government has conducted no executions since 1963. Fewer than 1 percent of the persons presently sentenced to death are under the jurisdiction of the federal government. Capital punishment in the United States, therefore, is primarily a matter of state law and practice.

In the U.S. system, the states possess the primary responsibility for defining crimes and enforcing criminal law. The federal government provides basic rules, including rights guaranteed by the Constitution of the United States, but each state chooses its own criminal penalties. This basic arrangement holds for the death penalty as well.
Both law and practice regarding the death penalty vary widely in the 50 states. Twelve states do not have a death penalty. The most serious form of punishment in such states is life imprisonment, sometimes without the possibility of parole. The other 38 states all provide that some forms of aggravated murder can be punished with death. Several states also authorize capital punishment for the nonlethal offenses of drug trafficking, hijacking, treason, and sexual assault. However, in 1999 all persons under sentence of death in the United States had been convicted of some form of murder.

Capital Punishment and the Constitution

For the first 150 years of U.S. history, the federal government played a minor role in setting policy toward the death penalty. The majority of states provided capital punishment and executions were common until the late 1950s. Some states abolished capital punishment at their own initiative, beginning with Michigan in the late 1840s. By 1965, 13 states had no death penalty, and the number of executions in those states that retained capital punishment laws had drifted downward from 199 in 1935 to 7. The reduction in executions in the United States during the 1940s and 1950s paralleled declines that were taking place in Europe and countries formerly affiliated with Britain.

By the mid-1960s, a growing debate over abolition of capital punishment had shifted from state legislatures to the federal courts. Opponents of the death penalty initiated a series of lawsuits contending that the death penalty as administered in the United States violated several amendments to the U.S. Constitution. These cases alleged that capital punishment violated the 14th Amendment, which prohibits the government from depriving citizens of life, liberty, or property without “due process of law,” as well as the 8th Amendment, which forbids cruel and unusual punishments.

In the 1972 decision of Furman v. Georgia, the Supreme Court of the United States ruled that allowing a jury unlimited discretion to choose between a death sentence and a prison sentence for a convicted criminal constituted cruel and unusual punishment. This ruling invalidated every state death penalty statute, because all of the states that retained capital punishment in 1972 used a standardless system, in which the jury received no guidance in deciding sentences. As a result, an official moratorium on executions was initiated that year and continued until 1976.

Following the Furman decision, states quickly passed new death penalty legislation. The new statutes still gave juries discretion to choose between prison and the death sentence. However, the laws also restricted the types of murder for which the death penalty could be imposed. In addition, the new statutes provided instructions on factors that judges and juries should take into account when deciding between prison and death. In the 1976 case of Gregg v. Georgia the U.S. Supreme Court ruled that such systems of guided discretion did not violate the constitutional prohibition against cruel and unusual punishment. Soon after that case was decided, 35 states had passed laws providing systems of guided discretion in death penalty cases. The first execution under these laws was that of Gary Gilmore by firing squad in Utah in 1977. Gilmore”s execution launched the modern era of capital punishment in the United States.

Current Conditions

The current U.S. system of capital punishment differs from that of the pre-1972 era because many federal constitutional standards must now be obeyed in death penalty cases. For example, the Supreme Court has ruled that the Eighth Amendment forbids the execution of defendants who, due to mental illness, are not capable of understanding the meaning of their pending execution. In the 1988 case of Thompson v. Oklahoma, the Court rejected an attempt to impose the death penalty on an individual who was under the age of 16 at the time he committed his crime. The Court has also indicated that only individuals convicted of crimes that result in a death are eligible for the death penalty. Contemporary laws that authorize capital punishment for individuals who commit offenses that do not result in death have not yet been challenged and reviewed by the Court.

Since reinstatement of the death penalty in 1976, more than 600 executions have taken place in the United States. Of the 38 states that allowed capital punishment in 1999, only 29 had actually conducted an execution in the previous two decades. Very few states make executions a regular practice. Six of the 29 states that had executed criminals since 1977–Florida, Louisiana, Missouri, Texas, Virginia, and Georgia–conducted 70 percent of all the executions. Geographically, executions are highly concentrated in Southern states. In 1997 Texas put to death 37 prisoners, as many as all the rest of the states combined.

Every year in the United States juries sentence between 200 and 300 criminals to death. The number of death sentences is a tiny fraction of the total number of murders that occur each year–about 1 percent. However, the number of death sentences far exceeds the number of executions. The result of this steady supply of condemned prisoners is a huge and ever-growing death row population. In 1998 about 3,500 prisoners were under death sentence in the United States.

Between reinstatement of the death penalty in 1976 and the end of 1998, three women have been executed in the United States. In July 1998, 48 women remained on death row. The 74 individuals sentenced to death for crimes they committed while juveniles made up about 2 percent of the U.S. death row population in July 1998. Between 1976 and 1998, U.S. jurisdictions executed 13 offenders who were under the age of 18 when they committed their capital crimes. In February 1999 Oklahoma executed a prisoner who had committed his crimes at the age of 16, becoming the first U.S. jurisdiction to execute such an individual since 1940.

Delay, Efficiency, and Fairness

When executions do happen in the United States, they are usually conducted a decade or more after the condemned prisoner has been convicted of the capital crime. There are two reasons why a gap of many years exists between a state death penalty and an actual execution. The first is the obvious point that all legal appeals of the death sentence must be finished before an execution can take place; otherwise, the defendant”s appeal would be meaningless. Consequently, imposition of the preferred punishment for the crime–death–is postponed during the appeal process. By contrast, punishment for individuals sentenced to prison rather than death need not be postponed during the appeal process. Criminals who serve their sentences while the appeal continues are subjected to their punishment simultaneously.

A second factor contributing to delay between sentencing and execution is the procedural rule known as exhaustion of remedies. Under the U.S. federal system, defendants must finish all appeals in state courts before they can even begin to seek review of their convictions in the federal courts. This requirement that a prisoner first “exhaust state remedies” provides states with the opportunity to correct errors in their own courts before the federal courts step in. However, as a result of this doctrine, a defendant may wait many years before the case even begins in a federal court. Yet if the federal courts did not scrutinize cases where a defendant alleges a violation of constitutional rights, the states could enforce only those constitutional rights they wish to uphold. If the federal courts wait their turn and then provide a full inquiry, a long delay between conviction and execution will result.

This long gap between crime and punishment frustrates supporters of capital punishment. In recent years the Congress of the United States has passed two separate federal laws intended to reduce the delay between sentencing and execution. These laws limit the authority of federal courts to hear appeals in death penalty cases. Critics of this attempt to curtail appellate review include the nation”s largest organization of attorneys, the American Bar Association (ABA). In 1997 the ABA adopted a resolution calling upon all jurisdictions that utilize capital punishment to refrain from conducting executions until those jurisdictions had implemented certain policies to ensure that death penalty cases are administered fairly and impartially. One of the ABA”s recommended policies focused on “preserving, enhancing, and streamlining state and federal courts” authority and responsibility” regarding appeals.

A basic conflict between the efficiency of a criminal justice system and its fairness to accused persons lurks behind the problem of delay. Providing procedural safeguards to avoid punishment of innocent persons and ensure that even guilty persons have every chance to demonstrate errors in the process of their conviction is not the swiftest way to run a criminal justice system. Ensuring due process of law is time-consuming and expensive. Widespread public support always exists for cutting back on defendants” rights in criminal cases. After all, these rights make it more difficult to protect the community from criminals. Limiting federal court authority to hear appeals reduces delay. However, this increased efficiency comes at a price. The chance of unjust executions increases when federal judges cannot hear all claims of legal error. Reducing access to courts saves time and money but increases the likelihood of significant error. For death penalty convictions, the consequence of error is the ultimate punishment of death.

Disparity in Application

Critics of capital punishment in the United States object to perceived arbitrariness and discrepancies in its administration. Numerous studies have documented the influence of race on sentencing decisions. However, supporters and opponents provide varying opinions on the meaning of the disparity in treatment of offenders as a result of race.

Those who believe the states administer the death penalty in a racially biased manner emphasize the disproportionate numbers of African Americans on death row. Critics of the application of the death penalty also note that the race of the victim provides a statistically clear determinant of whether or not a defendant receives a sentence of death or imprisonment. Thus, although about half of all murder victims in the United States are nonwhite, 80 percent of all death sentences are imposed for murders of whites. Supporters of capital punishment attribute statistical disparities in sentencing to the different circumstances surrounding the offenses. For example, supporters claim that murders of white victims more often involve a killing during the course of a robbery or other felony, an aggravating factor that makes the murderer eligible for a death sentence.

Legal challenges to imposition of the death penalty based on allegations of racial discrimination have achieved little success. In the 1987 decision of McCleskey v. Kemp, the Supreme Court affirmed the death sentence of an African American man convicted in Georgia of killing a white police officer during the course of a robbery. The defendant had submitted data to the Supreme Court indicating that defendants in Georgia charged with killing white victims were more than four times as likely to receive a death sentence than those convicted of killing a nonwhite victim. In a 5-to-4 vote, the Court concluded that while the study indicated “a discrepancy that appears to correlate with race,” the defendant had not clearly demonstrated that the jury in his particular case acted with discriminatory purpose. While not rejecting the validity of the statistical analysis, the Court refused to overturn a particular death sentence without evidence that the issue of race had influenced the jury in that specific case. (2)

More Entries about Capital Punishment

Capital Punishment in General

See Capital Punishment in General

Capital Punishment and the Death Penalty Debate

Many states have adopted lethal injection instead of the electric chair, which legal experts argue is a cruel method of execution. Justice William Brennan called electrocution “the contemporary technological equivalent of burning people at the stake.”

Walter Berns, in the Wall Street Journal, wrote: “We punish criminals mostly to pay them back, and we execute the worst of them out of moral necessity.”

Kirk Bloodsworth, exonerated defendant, said: “Speaking as a person who is supposed to be dead, I believe the death penalty should be abolished, period. Because you can’t be sure.”

See more on the Death Penalty Debate

World Development

See Capital Punishment Development in the World

Contributed By:

Franklin E. Zimring, B.A., J.D. Professor of Law and Director of the Earl Warren Legal Institute, University of California at Berkeley. Co-author of The Citizen”s Guide to Gun Control, Capital Punishment and the American Agenda and other books.

History

United States of America.—Under the Federal laws sentence of death may be passed for treason against the United States and for piracy and for murder within the Federal jurisdiction. But for the most part the punishment of crime is regulated by the laws of the constituent states of the Union.

The death penalty was abolished in Michigan in 1846 except for treason, and wholly in Wisconsin in 1853. In Maine it was abolished in 1876, re-enacted in 1883, and again abolished in 1887. In Rhode Island it was abolished in 1852, but restored in 1882, only in case of murder committed by a person under sentence of imprisonment for life (Laws, 1896, c. 277, s. 2). In all the other states the death penalty may still be inflicted: in Alabama, Delaware, Georgia, Maryland, and West Virginia, for treason, murder, arson and rape; in Alaska, Arizona, Kansas, New Jersey, Mississippi, Montana, New York, North Dakota, Oregon, and South Dakota, for treason and murder; in Colorado, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Nebraska, New Hampshire, New Mexico, Nevada, Ohio, Oklahoma, Pennsylvania, Utah and Wyoming, for murder only; in Kentucky and Virginia, for treason, murder and rape; in Vermont, for treason, murder and arson; in Indiana, for treason, murder, and for arson if death result; in California, for treason, murder and train-wrecking; in North Carolina, for murder, rape, arson and burglary; in Florida, Missouri, South Carolina, Tennessee and Texas, for murder and rape; in Arkansas and Louisiana, for treason, murder, rape, and administering poison or use of dangerous weapons with intent to murder. Louisiana is cited by Girardin (le droit de punir) as a state in which the death penalty was abolished in 1830. Under the influence of the eminent jurist, E. Livingston, who framed the state codes, the legislature certainly passed a resolution against capital punishment.

But since as early as 1846 it has been there lawful, subject to a power given to the jury, to bring in a verdict of guilty, “but no capital punishment,” which had the effect of imposing a sentence of hard labour for life. In certain states the jury has, under local legislation, the right to award the sentence. The constitutionality of such legislation has been doubted, but has been recognized by the courts of Illinois and Iowa. Sentence of death is executed by hanging, except in seven of the states, where it is carried out by “electrocution” (q.v.). (3)

According to the Encyclopedia of the American Constitution, the mid-1990s have witnessed an end to what one scholar described in the early 1980s as “a roller coaster system of capital justice, in which large numbers of people are constantly spilling into and out of death row, but virtually no executions take place.”

Capital Punishment and Race

According to the Encyclopedia of the American Constitution, in Mccleskey v. kemp (1987), the Supreme Court grappled with the difficult issue of race and capital punishment. The court was confronted with statistical studies that indicated potential racial discrimination in the assignment of death sentences in the state of Georgia.

In 1971, the year before the Supreme Court began its long and tortured experiment in constitutional regulation of the death penalty, Justice John Marshall Harlan issued an ominous warning in the case In McGautha v. California, because -he said- of the irreducible moral complexity.

Marshall Hypotheses in relation to Crime and Race

Marshall Hypotheses is included in the Encyclopedia of Race and Crime (1), beginning with: The Marshall hypotheses are a series of conjectures by Supreme Court Justice Thurgood Marshall regarding the value of opinion poll data on public sentiments about capital punishment. Because the results of such polls can be of great importance to the U.S. Supreme Court’s assessment of the constitutionality of various criminal statutes and policies and practices, the validity of these data is especially important. Justice Marshall’s opinions regarding both the importance of public opinion data and the limits of their validity opened an area of social scientific research. This section describes the origins and precise nature of the Marshall hypotheses. This is followed by a brief review of the social scientific studies (both the methodologies employed and the findings of these studies) that were spawned from Justice Marshall’s claims. (4)

Capital Punishment in the Criminal Justice System

Capital Punishment in Foreign Legal Encyclopedias

Link	Description
Capital Punishment	Capital Punishment in the World Legal Encyclopedia.
Capital Punishment	Capital Punishment in the European Legal Encyclopedia.
Capital Punishment	Capital Punishment in the Asian Legal Encyclopedia.
Capital Punishment	Capital Punishment in the UK Legal Encyclopedia.
Capital Punishment	Capital Punishment in the Australian Legal Encyclopedia.

Capital Punishment

Capital Punishment in the United States

Capital Punishment Definition