Capital punishment is a controversial issue, with many prominent organizations and individuals participating in the debate. Arguments for and against capital punishment are based on moral, practical, religious, and emotional grounds. Advocates of the death penalty argue that it deters crime, improves the community by making sure that convicted criminals do not offend again, provides closure to surviving victims or loved ones, is a just penalty for their crime and that no prison has been able to prevent murderers from killing again. Opponents argue that the death penalty does not deter, does not save money, and that capital punishment cheapens human life and puts government who take guilty lives on the same low moral level as criminals who have taken innocent life.
Between 1973 and 1995, 67% of capital convictions in the United States were eventually overturned, mainly on procedural grounds of incompetent legal counsel, police or prosecutors who suppressed evidence, judges who gave jurors the wrong instructions and mass commutations by governors personally opposed to the death penalty. Among those whose sentences were overturned, seven percent were acquitted and ten percent were retried and re-sentenced to death. The remainder typically ended up with lesser sentences, up to and including life imprisonment.
The Espy file lists 15,269 people executed in the United States and its predecessors between 1608 and 1991. 4,661 executions occurred in the U.S. in the period from 1930 to 2002 with about two-thirds of the executions occurring in the first 20 years. Additionally the United States Army executed 135 soldiers between 1916 and 1999. John A. Bennett is the last man to have been executed by the United States Army. He was hanged on April 13, 1961 after being convicted of rape and attempted murder. The last United States Navy execution was in 1849.
The largest single execution in United States history was the hanging of 38 Dakota people convicted of murder and rape in the Dakota War of 1862. They were executed simultaneously on December 26, 1862 in Mankato, Minnesota. A single blow from an axe cut the rope that held the large four-sided platform, and the prisoners (except for one whose rope had broken, and who consequently had to be restrung) fell to their deaths. The second largest mass execution in United States history was also a hanging: the execution of 13 African American soldiers for their parts in the Houston Riot in 1917. Notably, both incidents involved ethnic minority defendants, and military tribunal judgments in time of war.
In Furman, the United States Supreme Court considered a group of consolidated cases. The lead case involved an individual convicted under Georgia's death penalty statute, which featured a "unitary trial" procedure in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment.
In a five-to-four decision, the Supreme Court struck down the imposition of the death penalties in each of the consolidated cases as unconstitutional. The five justices in the majority did not produce a single opinion or rationale for their decision, however, and agreed only on a short statement announcing the result. The narrowest opinions, those of Justice White and Justice Stewart, expressed generalized concerns about the inconsistent application of the death penalty across a variety of cases but did not exclude the possibility of a constitutional death penalty law. Justices Stewart and Douglas worried explicitly about racial discrimination in enforcement of the death penalty. Justice Marshall and Justice Brennan expressed the opinion that the death penalty was proscribed absolutely by the Eighth Amendment as "cruel and unusual" punishment.
Though many observers expected few, if any, states to readopt the death penalty after Furman, 37 states did in fact enact new death penalty statutes which attempted to address the concerns of White and Stewart. Some of the states responded by enacting "mandatory" death penalty statutes which prescribed a sentence of death for anyone convicted of certain forms of murder (Justice White had hinted such a scheme would meet his constitutional concerns in his Furman opinion). Other states adopted "bifurcated" trial and sentencing procedures, with various procedural limitations on the jury's ability to pronounce a death sentence designed to limit juror discretion. The Court clarified Furman in Woodson v. North Carolina, and Roberts v. Louisiana, , , which explicitly forbade any state from punishing a specific form of murder (such as that of a police officer) with a mandatory death penalty.
The 1977 Coker v. Georgia decision barred the death penalty for rape, and, by implication, for any offense other than murder. The current federal kidnapping statute,however, may be exempt due to the fact that the death penalty applies if the victim expires in the perpetrator's custody, not necessarily by his hand, thus stipulating a resulting death, which was the wording of the objection. In addition, the federal government retains the death penalty for such non-murder offenses as treason, espionage and crimes under military jurisdiction; there has been no challenge to these statutes as of 2007.
Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. But the pace was quite halting due to use of litigation tactics which involved filing repeated writs for habeas corpus, which succeeded for many in delaying their actual execution for many years. Although hundreds of individuals were sentenced to death in the U.S. during the 1970s and early 1980s, only ten people besides Gilmore (who had waived all of his appeal rights) were actually executed prior to 1984.
Possibly in part due to expedited federal habeas corpus procedures embodied in the Antiterrorism and Effective Death Penalty Act of 1996, the pace of executions has picked up. Since the death penalty was reauthorized in 1976 1,029 people have been executed, almost exclusively by the states, with most occurring after 1990. Texas has accounted for over a third of modern executions (385 as of 8 March 2007); the federal government has executed only 3 people in the last 27 years. California has the greatest number of prisoners on death row, but has held relatively few executions. Throw Away The Key, a group that advocates tougher sentences and victim's rights, estimates that about 1800 people were murdered by the first 1000 people executed since 1976. This is out of a total of 600,000 people murdered in the United States since 1975.
In addition, the Supreme Court has utilized IQ test results during the sentencing phase of some criminal proceedings. The Supreme Court case of Atkins v. Virginia, decided June 20, 2002, held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.
After the Supreme Court's 2005 decision in Roper v. Simmons, , the minimum age at time of crime to be subject to the death penalty was raised to 18.
As of June 2008, there are no death row inmates facing capital punishment for a crime other than murder.
The most recent executions solely for crimes other than homicide were, respectively:
Several people who were executed have received posthumous pardons for their crimes. For example, slave revolt was a capital crime, and many who were executed for that reason have since been posthumously pardoned.
Review through federal habeas corpus is narrow in theory, but it is important in practice. According to Eric Freedman, 21% of death penalty cases are reversed through federal habeas corpus.
James Lieberman, a professor of law at the Columbia law school, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completition of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995. Similarly, a study by Ronald Tabek in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." The different numbers are largely definitional, rather than substantive. Freedam's statistics looks at the percentage of all death penalty cases reversed, while the others look only at cases not reversed prior to habeas corpus review.
Traditionally, Section 1983 was of limited use for a state prisoner under sentence of death because the Supreme Court has held that habeas corpus, not Section 1983, is the only vehicle by which a state prisoner can challenge his judgment of death. In the recent Hill v. McDonough case, however, the United States Supreme Court approved the use of Section 1983 as a vehicle for challenging a state's method of execution as cruel and unusual punishment in violation of the Eighth Amendment. The theory is that a prisoner bringing such a challenge is not attacking directly his judgment of death, but rather the means that the judgment will be carried out. Therefore, the Supreme Court held in the Hill case, a prisoner can use Section 1983 rather than habeas corpus to bring the lawsuit. Yet, as Clarence Hill's own case shows, lower federal courts have often refused to hear suits challenging methods of execution on the ground that the prisoner brought the claim too late and only for the purposes of delay.
Various methods have been used in the history of the American colonies and the United States but only five methods are currently used. Historically, burning, pressing, breaking on wheel and bludgeoning were used for a small number of executions, while hanging was the most common method. The last person burned to death was a black slave in South Carolina in August 1825. The last person to be hung in chains was a murderer named John Marshall in West Virginia on April 4, 1913. Although decapitation was a legal method in Utah for the second half of the 19th century, it was never employed.
Currently lethal injection is the method used or allowed in 35 of the 36 states which allow the death penalty. Nebraska requires electrocution, although in 2008 the state supreme court ruled that this method is unconstitutional. Other states also allow electrocution, gas chambers, hanging and the firing squad. From 1976 to September 24, 2007 there were 1,098 executions, of which 928 were by lethal injection, 154 by electrocution, 11 by gas chamber, 3 by hanging, and 2 by firing squad.
The federal death penalty allows any method of execution if the person was given a federal trial.
The use of lethal injection has almost become standard. From June 2000 to July 20, 2006, only 6 out of 387 executions have been by a different method. The last execution by any other method was the use of the electric chair on June 20, 2008 when James Earl Reed was executed in South Carolina. The last use of the gas chamber occurred on March 3, 1999 when Walter LaGrand was executed in Arizona, the last use of hanging was on 25 January 1996 when Delaware hanged Billy Bailey and the firing squad was also last used in 1996 when John Albert Taylor was shot in Utah on January 26.
The electric chair was the major method of execution during most of the 20th century. They developed a special nickname: Old Sparky (however, Alabama's electric chair became known as the "Yellow Mama" due to its unique color). Some, particularly in Florida, were noted for malfunctions, which caused discussion of their cruelty and resulted in a shift to lethal injection as the major method of execution. Although lethal injection dominates as a method of execution, some states allow an alternate method and a few states allow at least some death-row inmates to choose the method by which they will be executed.
Regardless of the method, an hour or two before the execution, the condemned person is offered religious services, and a last meal. Executions are carried out in private with only invited persons able to view the proceedings.
Since 1642 (in the 13 colonies, the United States under the Articles of Confederation, and the current United States) an estimated 364 juvenile offenders have been put to death by states and the federal government. The first known juvenile to be executed was Thomas Graunger in 1642. Twenty-two of the executions occurred after 1976, in seven states. Due to the slow process of appeals, it was highly unusual for a condemned person to be under 18 at the time of execution. The youngest person to be executed in the 20th century was George Stinney, at the age of 14, in 1944. The last execution of a juvenile may have been Leonard Shockley, executed on April 10, 1959 at the age of 17. No one has been under age 19 at time of execution since at least 1964. Since the reinstatement of the death penalty in 1976, 22 people have been executed for crimes committed under the age of 18. 21 were 17 at the time of the crime; one, Sean Sellers, executed on February 4, 1999 in Oklahoma, was 16. The last person to be executed for a crime committed as a juvenile was Scott Allen Hain on April 3, 2003 in Oklahoma.
Before 2005, of the 38 U.S. states that allow capital punishment:
16 was held to be the minimum permissible age in the 1988 Supreme Court of the United States decision of Thompson v. Oklahoma. The Supreme Court, considering the case Roper v. Simmons, in March 2005, found execution of juvenile offenders unconstitutional by a 5–4 margin, effectively raising the minimum permissible age to 18. State laws have not been updated to conform with this decision. Under the US system, unconstitutional laws do not need to be repealed, but are instead held to be unenforceable. (See also List of juvenile offenders executed in the United States)
It is noted that the death penalty is sought and applied more often in some jurisdictions, not only between states but within states. A 2004 Cornell University study showed that while 2.5% of murderers convicted nationwide were sentenced to the death penalty, in Nevada 6% were given the death penalty. Texas gave 28% of murderers the death sentence, more than the national average. Texas, however, executed 40% of those sentenced, which was about four times higher than the national average. California had executed only 1% of those sentenced.
Only 1.4% of those executed since 1976 have been women.
African Americans made up 41% of death row inmates while making up only 12% of the general population. (They have made up 34% of those actually executed since 1976.) Conversely, others note that this is lower than the 50% of the total prison population which was African American and that whites are in fact twice as likely as African Americans to receive the death penalty, and are also executed more quickly after sentencing. Academic studies indicate that the single greatest predictor of whether a death sentence is given, however, is not the race of the defendant, but the race of the victim. According to a 2003 Amnesty International report, blacks and whites were the victims of murder in almost equal numbers, yet 80% of the people executed since 1977 were convicted of murders involving white victims.
There are notable exceptions however, as half of the ten inmates on Connecticut's death row have been condemned for the murders of minorities and five of the 37 inmates executed in South Carolina were white men convicted of murdering African-Americans.
About 1890, a political movement developed in the United States to mandate private executions. Several states enacted laws which required executions to be conducted within a "wall" or "enclosure" to "exclude public view." For example, in 1919, the Missouri legislature adopted a statute (L.1919, p. 781) which required, "the sentence of death should be executed within the county jail, if convenient, and otherwise within an enclosure near the jail." The Missouri law permitted the local sheriff to distribute passes to individuals (usually local citizens) whom he believed should witness the hanging, but the sheriffs—for various reasons—sometimes denied passes to individuals who wanted to watch. Missouri executions conducted after 1919 were not "public" because they were conducted behind closed walls, and the general public was not permitted to attend.
Present-day statutes from across the nation utilize the same words and phrases, requiring modern executions to take place within a wall or enclosure to exclude public view. Connecticut (CGSA 54-100) requires death sentences to be conducted in an "enclosure" which "shall be so constructed as to exclude public view." Kentucky (KRS 431.220) and Missouri (VAMS 546.730) statutes contain substantially identical language. New Mexico's statute (NMSA 31-14-12) requires executions be conducted in a "room or place enclosed from public view." Massachusetts (MGLA. 279 § 60) requires executions to take place "within an enclosure or building." North Carolina (NCGSA § 15-188) requires death sentences to be executed "within the walls" of the penitentiary, as do Oklahoma (22 Okl.St.Ann. § 1015) and Montana (MCA 46-19-103). Ohio (RC § 2949.22) requires, "The enclosure shall exclude public view." Similarly, Tennessee (TCA § 40-23-116) requires "an enclosure" for "strict seclusion and privacy." Federal law (18 U.S.C.A. § 3596 and 28 CFR 26.3) specifically limits the witnesses to be present at an execution..
Today, there are always witnesses to executions--sometimes numerous witnesses, but it is the law, not the number of witnesses present, which determines whether the execution is "public."
All of the executions which have taken place since the 1936 hanging of Bethea in Owensboro have been conducted within a wall or enclosure. For example, Fred Adams was legally hanged in Kennett, Missouri, on April 2, 1937, within a wooden stockade. Roscoe "Red" Jackson was hanged within a stockade in Galena, Missouri, on May 26, 1937. Two Kentucky hangings were conducted after Galena in which numerous persons were present within a wooden stockade, that of John "Peter" Montjoy in Covington, Kentucky on December 17, 1937, and that of Harold Van Venison in Covington on June 3, 1938. An estimated 400 witnesses were present for the hanging of Lee Simpson in Ryegate, Montana, on December 30, 1939. The execution of Timothy McVeigh on June 11, 2001, was witnessed by some 300 people (some by closed circuit television), so some might call it a "public execution," even though federal law does not permit public executions. See 18 U.S.C.A. § 3596 and the federal administrative regulation implementing it, 28 CFR § 26.4. A “public execution” means that all the public has access.
The largest number of clemencies was granted January 2003 in Illinois, when outgoing Governor George Ryan, who had already imposed a moratorium on executions, pardoned four death-row inmates and commuted the sentences of the remaining 168 to life imprisonment before his own imprisonment on corruption charges.
Previous post-Furman massive clemencies took place in 1986 in New Mexico, when Governor Toney Anaya commuted all death sentences because of his personal opposition to the death penalty. However, two of these inmates escaped shortly afterwards, one kidnapping a family of four in California. In 1991 outgoing Ohio Governor Dick Celeste commuted the sentences of eight prisoners among them all four women on the state's death row. And during his two terms (1979-1987) as Florida Governor, Bob Graham, although a strong death penalty supporter who had overseen the first post-Furman involuntary execution as well as 15 others, agreed to commute the sentences of six people on grounds of "possible innocence" or "disproportionality."
Opinion polls consistently show that a majority of the American public supports the death penalty. A May 2005 Gallup poll had 74% of respondees in "favor of the death penalty for a person convicted of murder". In the same Gallup poll, when life imprisonment without parole was given as an option as a punishment for murder, 56% supported the death penalty and 39% supported life imprisonment, with 5% offering no opinion. Elections have sometimes turned on the issue; in 1986, three justices were removed from the Supreme Court of California by the electorate (including Chief Justice Rose Bird) partly because of their opposition to the death penalty, but also because of a massive negative campaign run by business interests.
Religious groups are widely split on the issue of capital punishment, generally with more conservative groups more likely to support it and more liberal groups more likely to oppose it.
The debate over the death penalty centers around four issues: whether it is morally correct to kill; whether the death penalty serves as a deterrent; whether the penalty is being applied fairly across racial, social, and economic classes; and whether the irrevocability of the penalty is justified considering possible new evidence or future revelations of improper conduct by the state. It is also claimed that the financial costs of a complete death penalty case exceed the total costs of a lifetime of incarceration. Between 1976 and 2003, less than 2% of death row prisoners were exonerated, while others had their sentences reduced for other reasons. This amounted to 112 prisoners released.
In addition to Ryan's moratorium, Governor Parris N. Glendening (D) halted executions in the state of Maryland by executive order on May 9, 2002, but the subsequent governor, Robert Ehrlich (R), resumed executions in 2004. However, on December 19, 2006, the Maryland Court of Appeals ruled that state executions would be suspended until the manual that spells out the protocol for lethal injections is reviewed by a legislative panel. The state's Department of Corrections had adopted the manual without having a public hearing or submitting it before a committee. Legislative review of the protocol is required before approval under state law.
In December 2005, the New Jersey State Senate passed a one-year moratorium on executions by the state. The measure was passed by the legislature on January 10, 2006. Governor Richard J. Codey signed the measure into law on January 12. New Jersey is the first state to pass such a moratorium legislatively, rather than by executive order. Although New Jersey reinstated the death penalty in 1982, the state has not executed anyone since 1963. On December 17, 2007, with the signing of an abolition bill by Governor Jon Corzine, New Jersey became the 14th state without a death penalty at a time when its use is declining in most of the 36 states -- plus the federal government and U.S. military -- that retain it, but the first state to abolish it by legislative action rather than by judicial decision. As a result, all eight inmates on death row had their sentences commuted to life in prison. This was upsetting to some, as the list included Jesse Timmendequas, whose rape and murder of his 7-year-old neighbor, Megan Kanka, led to the creation of Megan's Law, and many awaited his execution.
In Florida, Governor Jeb Bush suspended all executions on December 15, 2006 after a botched execution required a second injection of the lethal chemicals. The moratorium was lifted on July 18, 2007 by Governor Charlie Crist, and on November 1, 2007, the Florida Supreme Court unanimously upheld the state's lethal injection procedures.
In North Carolina, a de facto moratorium is in place following a decision by the state's medical board that physicians cannot participate in executions, which is a requirement under state and federal law.
In California, U.S. District Judge Jeremy Fogel imposed a moratorium on the death penalty in the state of California on December 15, 2006, ruling that the implementation used in California was unconstitutional but that it could be fixed.
In Missouri, U.S. District Judge Fernando J. Gaitan, Jr. of the United States District Court for the Western District of Missouri in Kansas City suspended the state's death penalty on June 26, 2006, after lengthy hearings on the matter. Judge Gaitan reasoned that the state's lethal injection protocol did not satisfy the Eighth Amendment because (1) the written procedures for implementing lethal injections were too vague, and (2) the state had no qualified anesthesiologist to perform lethal injections. Jay Nixon, the Missouri Attorney General, promptly appealed to the United States Court of Appeals for the Eighth Circuit in St. Louis. On June 4, 2007, a panel of the Eighth Circuit reversed the District Court's decision. The death row inmate in question, Michael Taylor, will seek an en banc hearing before the entire Eighth Circuit and, failing that, will seek a writ of certiorari in the Supreme Court of the United States. The Eighth Circuit case is number 06-3651, Taylor v. Crawford.
In Nebraska, the Nebraska Supreme Court ruled, on February 8, 2008, that the use of the electric chair is unconstitutional — specifically, that its use conflicts with the Nebraska state constitution. As electrocution is the sole legally-authorized method of execution in Nebraska, the state has what technically amounts to no legally-authorized death penalty at this time.
Since the Supreme Court of the United States agreed to hear the case Baze v. Rees many states have slowed or halted executions as lawyers for death-row prisoners have argued that states should not carry out death sentences using a method that may be ruled unconstitutional. While executions have come to an apparent stop until Baze is examined by the court, this was not the intent, according to Supreme Court Justice Antonin Scalia, who stated on Tuesday, October 16, 2007 that stopping all executions by that method wasn't the high court's intention when it agreed to hear Baze v. Rees. Just because the justices agreed to take on the case, Scalia said, doesn't necessarily mean that a moratorium should ensue.
On April 16, 2008, the U.S. Supreme Court decided in Baze that the current method of execution by lethal injection, by use of a three-drug 'cocktail', is constitutionally permissible even though an alternative method such as a massive overdose of some other drug could be used and might be less painful or less uncomfortable for the condemned. As a result of the court's decision, some states that had instituted stays or moratoria have announced a resumption of the practice.