The killing of a convict by the state for purposes of punishment or to reduce future crime.
During the colonial period and the founding of the United States, the execution of convicts was not only routine but also a public spectacle. The hangman’s noose, a humane alternative to beheading, was employed with a liberality that would disturb modern sensibility. In eighteenth century England, for example, it is estimated that approximately 240 crimes were punishable by death, with the sentence commonly carried out in the town squares. In contrast to millennia of practice, the nineteenth and twentieth centuries have seen a gradual civilization of punishment. Incarceration replaced execution for most crimes. Hangings were removed from public view and placed instead behind prison walls. The abolition of physical torture as a legitimate part of punishment followed, eventually culminating in efforts to also circumscribe the infliction of psychological pain. Thus, the noose was replaced by electrocution, followed by the gas chamber, and more recently by lethal injection, all in a search of a humane method of depriving the convict of life, as the ultimate punishment. In the eyes of many ethicists, legal scholars, and moral leaders, the fulfillment of this historical trend would be the abolition of capital punishment altogether. In the United States, one of the last democratic nations retaining the death penalty, this debate has often acquired a constitutional dimension.
It is clear from the text of the Constitution that the Framers envisioned executions as a part of their legal regime. The Fifth Amendment provides that “no person shall be held to answer for a capital or otherwise infamous crime” absent an indictment by a grand jury. It further provides that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb” nor be “deprived of life, liberty, or property without due process of law.” The Fourteenth Amendment, adopted after the Civil War, similarly commands that no state shall deny any person “life, liberty, or property, without due process of law.” Proponents of a contractual constitution, interpreted according to the historical intent of its Framers, are on apparently solid ground when they contend that the Constitution, in principle, sanctions capital punishment.
Opponents of the death penalty point to the same pair of due process clauses, promises of legal fairness, to condemn the application of the death penalty as arbitrary, capricious, even, in the words of Justice Potter Stewart, “freakishly imposed.” They also point to the Fourteenth Amendment’s requirement that states accord all persons the “equal protection of the laws” and raise questions concerning possible racial bias in the meting out of death sentences. Finally, and most tellingly, the Eighth Amendment’s proscription of “cruel and unusual punishments” might provide a flat ban on capital punishment. The latter seems to have been adopted to end corporal punishments or the infliction of torture. However, in Weems v. United States
Judicial appeals to contemporary morality are always risky, especially regarding an emotionally contentious subject such as capital punishment. However, it is difficult to reconcile the death penalty, as practiced in the United States, with any of the common theoretical justifications for punishment. The death penalty is obviously not intended to accomplish the rehabilitation of the offender. There is little evidence in support of any general deterrence produced by the death penalty beyond that already achieved by incarceration and considerable evidence against the claim. Incapacitation of dangerous or repeat offenders can also be accomplished by means short of execution. Retribution, the theory that crime is a moral offense that must be redressed by the infliction of proportional pain to expiate the original offense, might justify capital punishment for heinous crimes, especially first-degree murder. The biblical injunction of “an eye for an eye and a tooth for a tooth” is a concise summary of retributive punishment. The problem is that retribution, if consistently followed, is a nondiscretionary punishment a sentence proportional to the crime must be carried out, with no room for mercy or selection. Proponents of capital punishment who appeal to retribution would have to countenance the execution of all defendants convicted of crimes for which capital punishment is authorized. The result would be a rate of executions unprecedented in U.S. history. Public opinion overwhelmingly supports capital punishment. However, polls and jury behavior also show that Americans want the death sentence to be employed sparingly.
The modern Court’s initial foray into death penalty law was not encouraging to abolitionists. In Louisiana ex rel. Francis v. Resweber
Encouraged by the Court’s activism in civil rights and defendants’ rights cases, death penalty opponents in the 1960’s began a campaign to enlist the Court in the cause of abolition. The Legal Defense Fund
In Witherspoon v. Illinois
Further LDF challenges to capital punishment were in the works. In Furman v. Georgia
Public reception of Furman was immediate and hostile. Within a few years, thirty-five states had reenacted death penalty statutes purporting to meet the Court’s objections. Three possibilities seemed available in the wake of Furman. States could enact mandatory death penalty statutes, imposing death in all cases where the death penalty was available, without discretion. This seemed to meet the objections of the Douglas, Stewart, and White bloc but would also have resulted in a large number of executions. A second option was to forgo death as a punishment altogether, but this seemed politically unlikely given the climate of public opinion. The third option was to enact guided discretion statutes, supplying juries with a host of aggravating and mitigating circumstances that would be considered in a separate sentencing phase of the trial, following a previous determination of guilt. This procedure met the LDF’s second challenge to capital punishment, that the combined procedures for determining guilt and sentence imposed untenable choices on the defense. It also seemed to meet the issue of jury discretion head on, with neither the unpopular abolition of capital punishment nor the volume of executions that might follow adoption of mandatory capital punishment laws.
These laws came under the Court’s scrutiny in Gregg v. Georgia
It is not at all clear that the death penalty regime approved in Gregg is able to meet the objections of jury discretion and arbitrary application of capital punishment that underlie Furman. Although subsequent litigation struck down jury guidelines that were deemed too vague, juries were still called on to consider unique circumstances pertaining to each case. Further inconsistency was introduced into the application of the death penalty through such practices as prosecutorial charging discretion, plea bargaining, and executive clemency. It thus appeared that Gregg marked a changed political sentiment on the part of the Court, perhaps even, as a practical matter, overruling Furman. With the decision in Gregg, the Court signaled a green light to executions. The death penalty moratorium came to an end in January of 1977, when the state of Utah executed Gary Gilmore by firing squad.
The interest of the LDF in capital punishment should have surprised no one. It was long known that the death penalty was applied most frequently to society’s outcast groups, especially the poor and members of minority groups. Over half of the convicts executed for all capital crimes between 1930 and 1995 were African Americans,
A research team lead by David Baldus studied more than 2,400 criminal homicide cases in Georgia, from 1973 to 1980, tried under the death penalty regime approved in Gregg. Taking account of more than 230 separate characteristics of each case, they employed sophisticated statistical analysis to weigh the effect of each in producing death sentences. Their results found that, when adjusted for legitimate nonracial factors, the race of the defendant did not result in a strikingly disproportionate application of the death penalty. However, a strong correlation was uncovered between the race of the victim and the passing of a capital sentence.
These data formed the basis for the LDF’s next challenge to capital punishment, in McCleskey v. Kemp
In Furman and Gregg, the Court had sought to remove arbitrary and capricious factors, presumably including racial prejudice, from the application of the death penalty in the United States. However, with McCleskey, the Court appeared to be turning its back on that promise by foreclosing the last avenue for arguing for the per se unconstitutionality of capital punishment. It did find in the Eighth Amendment limits to the kinds of crimes that could be deemed capital offenses. In Coker v. Georgia
At the end of the twentieth century, thirty-eight states authorized the death penalty for first-degree murder. The federal government also authorized death for certain homicides, as well as for espionage, treason, or running a large-scale drug enterprise, but has not carried out a single capital sentence since 1963. As of April, 1999, 3,565 prisoners were on death row in the United States, while only 580 prisoners had been executed since 1977. Death row inmates
Bohm, Robert M. Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States. Cincinnati: Anderson Publishing, 2003. Carter, Linda E., and Ellen Krietzberg. Understanding Capital Punishment Law. Newark, N.J.: LexisNexis, 2004. Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press, 1998. Constanzo, Mark. Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin’s Press, 1997. Foley, Michael A. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. New York: Praeger, 2003. Haines, Herbert H. Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972-1994. New York: Oxford University Press, 1999. Kronenwetter, Michael. Capital Punishment: A Reference Handbook. 2d ed. Santa Barbara, Calif.: ABC-Clio, 2001. Latzer, Barry, ed. Death Penalty Cases: Leading Supreme Court Cases on Capital Punishment. 2d ed. Burlington, Mass.: Butterworth Heineman, 2002. Mello, Michael A. Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison: University of Wisconsin Press, 1997. Protess, David. A Promise of Justice: The Eighteen-Year Fight to Save Four Innocent Men. New York: Hyperion, 1998. Sarat, Austin. When the State Kills: Capital Punishment and the American Condition. Princeton, N.J.: Princeton University Press, 2001. Williams, Mary E. Capital Punishment. Farmington Hills: Greenhaven, 2005.
Coker v. Georgia
Cruel and unusual punishment
Due process, procedural
Furman v. Georgia
Gregg v. Georgia
Legal Defense Fund, NAACP
Louisiana ex rel. Francis v. Resweber
McCleskey v. Kemp
Race and discrimination
Weems v. United States