Capital Punishment in the United States

Group C:

Keren Margolis, Susanna Chon, Yon Lam, Julie Teglovic, Michael Schnapp

Professor Jackson

March 30, 2006

 

 

 

 

 

 

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           There are many moral and philosophical arguments both supporting and opposing the death penalty in the U.S. today. Some say that a murderer deserves to be murdered, while others believe that a government with laws against murder acts hypocritically and illogically in committing murder itself.  It is interesting to consider that the United States is one of the few remaining western nations that still practices the death penalty.  Because of this, looking at how other populations are affected by the presence or absence of capital punishment can give insight into its place here in the U.S.  The Council of Europe and the European Union have both stated that “the death penalty has no legitimate place in the penal systems of modern civilized societies, and that its application may well be compared with torture and be seen as inhuman and degrading punishment” (Hood). With support from European citizens, the abolition of capital punishment has been successfully accomplished throughout the continent.  All members of the European Union no longer have executions within their legal system (Radelet, Borg).  Throughout the world, only 55 countries are known to still practice executions as of 2000.  The only country democratically and economically similar to the U.S. among those who still practice capital punishment is Japan; all of the other countries reside in the Middle East, Asia, Africa, and islands in the Caribbean where factors, such as economy, religion, social structure, culture, and political beliefs have led them to continue with executions (Hood).

           Although the majority of the world frowns upon capital punishment still being used in certain regions, some argue that it is a necessary evil to maintain order.  In China, the public’s “deep-rooted fear of lawlessness” has sparked their adamant support for the death penalty (Scobell).  Within Saudi Arabia and Yemen, two countries whose governments follow Islamic law entirely, the idea of capital punishment is thought of as a divine right.  They believe that the state has a right over its people to make “compensation” for murder in their countries.  Although they are members of the United Nations, they ask for the respect of their religion and the right to govern their citizens as their religion requires (Hood).  Although the U.S. practices separation of church and state, our government claims to have other reasons to justify capital punishment, and that international abolitionists must respect American law as well.

Statistics on the death penalty started to be collected on a regular basis in the United States in 1930 by the Bureau of Justice Statistics.  Between 1930 and 1967, 3,859 people were executed under civil jurisdiction.  By the end of the 1960s, the amount of executions occurring each year dwindled to only a few, and only ten states were using capital punishment.  At this point, the legal status of the death penalty was being questioned by the courts, and the last execution took place was in 1967 before the death penalty was suspended for several years (Green, Paternoster, Garland).  In 1972, the Supreme Court decided in Furman v. Georgia that the current death penalty statutes that states had in place violated the Eighth and Fourteenth Amendments. Due to this case, more than 600 death row inmates had their death sentences lifted.

           Although the death penalty was suspended, it didn’t stay like this for long. In 1976 the Supreme Court allowed Georgia, Texas, and Florida to impose death sentences for specified crimes after they had revised their statutes regarding capital punishment. Since then, many states have reinstated capital punishment in their statutes. One of the most recent states to pass a death penalty law was New York in 1995. “The death penalty is a necessary tool to fight and deter crime…violent crime in New York has dropped dramatically, due in part to the reinstitution of the death penalty,” current New York state governor George Pataki stated recently in defense of this decision (Pataki).

           In the late 1980s there were three cases regarding the constitutionality of executing minor offenders. In 1988’s Thompson v. Oklahoma it was decided that no state could execute someone who was under the age of sixteen at the time of the crime. The United States ratified the International Covenant on Civil and Political Rights in 1992, which reserved the right in the U.S. to execute juvenile offenders. International reaction has been highly critical of this decision, and ten countries have filed formal objections to this apparent U.S. violation of international human rights doctrine, which sets eighteen as the minimum age requirement at the time of the crime. On March 1, 2005, the U.S. Supreme Court ruled (5-4) that the execution of juvenile offenders was forbidden in the Roper v. Simmons case (DPIC). There were still 19 states prior to this case that allowed minors of the age 16 or 17 at the time of their crimes to be sentenced to death. Around 70 juvenile offenders who were on the death row were immediately affected by this decision.  In 2002’s Atkins v. Virginia, the Supreme Court held that a national consensus had evolved against the execution of the mentally retarded. It was said that such a punishment violates the Eighth Amendment’s ban on cruel and unusual punishment. (DPIC).  Both of these rulings highlight a recent trend of the Court to limit the application of the death penalty, in contrast to the 80s and early 90s, when the Court was mostly focused on speeding up the process (Lane).  Overall, the application of the death penalty is slowing down.  In 2005, 60 people were executed, down 39% from a recent high of 98 in 1999, and there were 96 new death sentences, down 70% from 320 people sentenced in 1996 (Lane).

           One of the most important arguments in support of the death penalty is that the death penalty can deter criminals from committing violent crime in the future.  A criminal, seeing that one possible consequence of his actions can be that he is put to death, would be more likely to avoid behavior that would result in that consequence.  Thus, executing a single convicted criminal can save the lives of many innocent people, and the government would be morally required to retain the death penalty and put innocent people’s lives above those of convicted criminals.  Public belief in this deterrent effect is rather currently low, with 68% of those polled responding that they do not believe the death penalty acts as a deterrent for murder according to a 2004 Gallup poll, in contrast to 61% who believed that it did when they were polled in 1986 (Roberts 1).  Furthermore, whether or not the deterrent effect actually exists is also under question.  International comparison doesn’t really seem to bear this out. In 1961 Canada restricted the death penalty to only those who had committed pre-meditated murder or murder of a police officer, and since 1962 Canada has had no executions. However, homicide rates remained very similar to those in the U.S., even after the United States Supreme Court ruled that the death penalty could be reinstated in 1976 (see chart A in Appendix for reference) (Donohue, Wolfers 799).  Likewise, we can compare the homicide rates in the states that had abolished the death penalty or have not had it on the books to those who have.  If the death penalty deters homicide, then one would expect that there would be higher homicide rates in those states that have abolished the death penalty, but the comparison does not bear this out.  As with the comparison to Canada, there is no appreciable difference between the changes in homicide rates in those states that have the death penalty and those who don’t (see chart B in Appendix for future reference) (Donohue, Wolfers 801).  An interesting study by Joanna M. Shepherd argues that for the death penalty to effectively deter crime, a certain number of executions must occur in a given time period.  If any less people are executed, the homicide rate actually increases, due in part to the “brutalization effect,” the idea that state-sponsored executions make the citizens more likely to turn violent and commit murder.  This explains the research that shows that the death penalty lowers the crime rate in some states in which it exists and not others.  Shepherd concludes with the idea that, if the goal of the state is to deter murder through the use of the death penalty, it must have a fairly high rate of execution (Shepherd 248).  However, it seems like this would be in fact a very dangerous policy to enact.  If the process to give people the death sentence is artificially sped up to reach a quota of executions against the current trend of slowing down the process, it would be likely that an amount of error would enter the system; as it stands right now, many offenders on death row are eventually proven innocent and are released.  The Death Penalty Information Center says, “since 1973, 115 people in 25 states have been released from death row with evidence of their innocence,” and the yearly average of exonerations has risen from 3.08 from 1973 to 1998 to 7 since 1998.  In addition, it is also believed “that the number of death row in prison is equal to nearly 15% of those actually executed” (Unnever, Cullen 4).  If the death penalty sentencing process is sped up or restrictions on it were loosened, many of these innocents would fall through the cracks and be wrongly executed, and it is unacceptable for the government to adopt a policy knowing that it will directly cause the deaths of innocent people.  Overall, evidence on the deterrent effect is mostly inconclusive, and it is hard to gather empirical evidence to provide concrete proof, but over 80% of criminologists “believe the existing research fails to support a deterrence justification for the death penalty” (Death Penalty Information Center).  Arguing that the death penalty should be kept solely on the grounds that it protects innocent lives is thus nearly groundless, as the research appears to not support this idea.

It is also important to consider public opinion on the death penalty, as many legislators believe that perceived public support of the death penalty gives them a mandate to try to keep it on the books, and the Supreme Court itself considers the results of opinion polls in its rulings (Unnever, Cullen 4, and Barkan, Cohn 39).  Simply stated, Gallup polls show that about two thirds of people support the death penalty.  That number of people drops to about half when the alternative of life imprisonment without parole is considered as an alternate option. (“Public Support for Death Penalty May Be Waning”). However, most studies agree that the matter is too complex to be so simplistically summarized. Though the American government has never admitted to executing an innocent person, many people (74.6%) believe that a person has been wrongly executed in the last five years. Since 1973, there have been over 115 people in 25 different states released from death row after being proven innocent. In 1993’s Herrera v. Collins, the Supreme Court dealt with the constitutionality of executing someone who claimed actual innocence. It was said that the defendant could seek to prevent his execution through the clemency process, but Herrera was not granted clemency and was executed before being proven innocent. Studies show that people are less likely to support the death penalty if they are informed about certain aspects of it, such as the fact that innocent people might be on death row (Murray and Unnever, Cullen).

           Supreme Court Justice Thurgood Marshall once said, “‘American citizens know almost nothing about capital punishment’ and that the knowledge that minorities and the poor are sentenced to death in much higher numbers than other groups and that innocent people have been executed, ‘would serve to convince even the most hesitant of citizens to condemn death as a sanction.’” Similarly, many Americans hold inaccurate views on the cost of capital punishment, incorrectly assuming that killing a person is less expensive than the alternative of spending a lifetime in prison. This position has been proven essentially untrue; as the Field Guide to the U.S. Economy summarizes: “Every major cost study has shown capital punishment to be more expensive than an alternative system where life-imprisonment is the maximum sentence” (Coles). So while it is crucial—especially for a politician—to consider the opinions of a nation’s citizens, it may be equally important to realize that these very opinions are often founded on misconceptions and misinformation. Even so, “not all individuals become less supportive when presented with this type of [true] information and, furthermore, there is some indication that over time respondents who react to the information return to almost the same attitude they had before they received it” (Murray 756).  Furthermore, Barkan and Cohn argue that, “if white support during the 1990s dropped only 9.4% despite the publicity over wrongful convictions in capital cases and a sharp drop in the homicide rate and still remained at most 70%, we do not hold much hope that this opinion can be swayed through the public education campaigns these observers advocate” (Barkan, Cohn 42).  Overall, public opinion does seem in favor of the death penalty, but it is hardly at the level of a mandate, as some politicians would claim, and public support has been decreasing in recent years.  According to the Gallup Polls, the support for the sentence of life without parole as an alternative to the death penalty has been steadily increasing. In 1994, 32% favored life without parole as opposed to 50% supporting the death penalty. Ten years later, in 2004, the support for life without parole has increased to 46%. More of the population is beginning to favor life without parole as time goes by, and this amount can increase further in the future, especially as the public becomes more aware of what is actually true in the world (see chart D in Appendix).

           A common complaint about the death penalty is that it is unfairly applied to black people.  Throughout the years that the death penalty was in place in America, it became evident that minorities were executed more often.  One of the reasons the death penalty was suspended in the United States was that the statutes the states had in place gave too much discretion to the judges and juries, letting them arbitrarily decide how to hand out the death sentence and leaving the system too open to racism (Paternoster).  By 1980, support for capital punishment rose to 74% of the white population while a mere 45% of the black population supported it (Comb, Comer), and only 42.1% of blacks supported it in 2002 according to a GSS survey (Barkan, Cohn).  However, the bias towards blacks within the death penalty is not just limited to the death penalty.  While it’s true that black people are disproportionately executed, there are also a disproportionate number of black people in prison.  When the Supreme Court decided to allow the death penalty to continue, it did so because it had concluded that the revised state statutes on the death penalty had removed much of the bias, making sure to some extent that the jury couldn’t arbitrarily decide to hand out the death sentence on racial grounds.  Likewise, if the death penalty were abolished in favor of life imprisonment without parole, it wouldn’t necessarily be on racial grounds.  If more black people are currently sentenced to death than whites, more black people would be sentenced to life imprisonment without parole, and nothing is done to help remove racial bias from the system.

           If Thurgood Marshall’s theory that increased public education would eliminate support for the death penalty is correct, then there is not necessarily a need to educate the public before enacting a policy change.  If those in power know that a certain decision is somewhat unpopular, but that it will save innocent lives, they have the responsibility to make that decision, especially if research shows that the decision would be supported if people were more educated about the issue.  If the trends towards decreasing public support and decreased usage of the death penalty continue, then the death penalty might actually be withering away and we might as well do away with it and join the rest of the western world.  Even if many people are aware that innocent people may be put to death and do not mind, the efficacy of the deterrent effect has not been proven sufficiently enough to justify a practical reason for innocent lives being taken, when the alternative of life imprisonment without parole would not cost any innocent lives.  We recommend that you take steps towards abolishing the death penalty as an inhumane and archaic method of dealing with convicts, and embrace the alternative of life imprisonment without parole as a more practical solution that does not run the risk of killing innocent people.


Appendix:

Chart A:

(Donohue, Wolfers 799)

Chart B:

(Donohue, Wolfers 801)

Chart C:

(Moore)

Chart D:

(Moore)


Work Cited

 

Barkan, Stephen E. and Steven F. Cohn.  “On Reducing White Support for the Death Penalty: A Pessimistic Appraisal.”  Criminology and Public Policy, Vol. 4, No. 1, February 2005.

{primary scholarly, print via internet, reputable}

 

Coles, Michael. “The Cost of Capital Punishment.” The Ultimate Field Guide to the

U.S. Economy. 14 Aug. 2002. 25 March 2006 <http://www.fguide.org/Bulletin/cappun.htm>.

 

Combs, Michael W. and John C. Comer. “Race and Capital Punishment: A Longitudinal Analysis.” Phylon 43.4 (1960): 350-359. 20 March 2006 <http://www.jstor.org/browse?charset=u&frame=noframe&userID=807afdc4@nyu.edu/01cc99333c00501ce06ee&dpi=3&config=jstor&viewCitations=1>.

{Unrestricted, print via the internet, reputable}

 

“Criminologists’ View on Death Penalty and Deterrence.” Death Penalty Information

Center. 2006. 25 Mar. 2006 <http://www.deathpenaltyinfo.org/article.php?&did=1705#CRIMINOLOGISTS%27%20VIEWS%20ON%20DETERRENCE%20AND%20THE%20DEATH%20PENALTY>.

 

Dieter, Richard. Death Penalty Information Center. 20 March 2006

<http://www.deathpenaltyinfo.org/>.

{unrestricted, internet publication, reputable}

 

Donohue, John J., and Justin Wolfers.  “Uses and Abuses of Empirical Evidence in the Death Penalty Debate.”  Stanford Law Review, Vol. 58, No. 3, December 2005.

{primary scholarly, print via internet, reputable}

 

Garland, David. “The cultural uses of capital punishment.” Punishment and Society 4.4(2001): 459-487. 19 March 2006 <http://pun.sagepub.com/cgi/rapidpdf/4/4/459.pdf>.

{Scholarly secondary source, print via the internet, reputable}

 

Green, Melissa S. “History of the Death Penalty & Recent Developments.” Focus on the Death Penalty (02-May-2005): 20 March 2006

<http://justice.uaa.alaska.edu/death/history.html>.

{unrestricted, internet publication, apparently credible}

 

Hood, Roger. “Capital Punishment: A global perspective.” Punishment and Society 3.3(2001): 331-354. 20 March 2006 <http://pun.sagepub.com/cgi/reprint/3/3/331.pdf>.

{Scholarly secondary source, print via the internet, apparently
credible}

 

Lane, Charles.  “Changing Attitudes About the Death Penalty.”  The Washington Post, January 2, 2006.

{distinguished news, print via internet, reputable}

 

 

Moore, David W.  “Public Divided Between Death Penalty and Life Imprisonment Without Parole.”  Gallup News Service, June 2, 2004.  Accessed on March 27, 2006.  <http://www.deathpenaltyinfo.org/article.php?scid=23&did=1029>

 

Murray, Gregg R. “Raising Considerations: Public Opinion and the Fair Application of the Death Penalty.”  Social Science Quarterly, Vol. 84, No. 4, December 2003.

{primary scholarly, print via internet, reputable}

 

Pataki, George E. “The Death Penalty is a Deterrent.” Book Rags. Date unknown. 25

Mar. 2006 <http://www.bookrags.com/researchtopics/does-capital-punishment-deter-crime/02.html>.

 

Paternoster, Raymond.  “Myths and Misconceptions about the Death Penalty.”  Social Foundations Course Reader.

{primary scholarly, print, reputable}

 

“Public Support for Death Penalty May Be Waning.”  Corrections Today, Vol. 68, No. 1, February 2006.

{secondary scholarly, print via internet, reputable}

 

Radelet, Michael L. and Marian J. Borg. “The Changing Nature of Death Penalty Debates” (2000):43-61. 25 March 2006 <http://arjournals.annualreviews.org/doi/pdf/10.1146/annurev.soc.26.1.43?cookieSet=1>.

{unrestricted, print via the internet, apparently credible}

 

Roberts, Julian V.  “Capital Punishment, Innocence, and Public Opinion. Criminology and Public Policy, Vol. 4, No. 1, February 2005.

{primary scholarly, print via internet, reputable}

 

Scobell, Andrew. “The Death Penalty in Post-Mao China.” The China Quarterly 123 (1990): 503-520. 25 March 2006 <http://www.jstor.org/view/03057410/ap020114/02a00050/0?frame=noframe&userID=807afdc4@nyu.edu/01cc99333c00501ce06ee&dpi=3&config=jstor>.

{Popular news, print via the internet, plausible}

 

Shepherd, Joanna M.  “Deterrence Versus Brutalization: Capital Punishment’s Differing Impacts Among States.”  Michigan Law Review, Vol. 104, No. 2, November 2005.

{primary scholarly, print via internet, reputable}

 

Unnever, James D., and Francis T. Cullen.  “Executing the Innocent and Support for Capital Punishment: Implications for Public Policy.”  Criminology and Public Policy, Vol. 4, No. 1, February 2005.

{primary scholarly, print via internet, reputable}