Skip to main content * Fact Sheet * Upcoming Executions * Execution Database * State-by-State * Podcasts Menu * Home * Issues + Arbitrariness + Clemency + Costs + Deterrence + Federal Death Penalty + Foreign Nationals + Innocence + Intellectual Disability + International + Juveniles + Life Without Parole + Mental Illness + Native Americans + Race + Representation + U.S. Military + Victims + Women + More Issues * Resources + Articles + Books + Editorials + Educational Curricula + Executions Database + Law Review + Multimedia + New Voices + Public Opinion + Related Web Sites + Religion + State by State Database + State Information + Student Resources + Studies + Testimony, Resolutions, Statements & Speeches + Weekly Newsletter + Death Penalty Quiz + More Resources * Facts + Crimes Punishable by the Death Penalty + Death Row + Executions + Lethal Injection + en Español + History of the Death Penalty + Murder Rates + Recent Legislative Activity + Sentencing + States With the Death Penalty + U.S. Supreme Court + Upcoming Executions * Reports * About + About DPIC + DPIC Newsletter + Staff & Board of Directors + Support this Work + Connect with DPIC * Press * Donate Enter your keywords ______________________________ Search View the results at Google, or enable JavaScript to view them here. * Fact Sheet * Upcoming Executions * Execution Database * State-by-State What's New Study Finds Disparities in Race, Gender, and Geography in Florida Executions Posted: January 14, 2016 Florida executions are plagued by stark racial, gender, and geographic disparities, according to a new University of North Carolina study, with executions 6.5 times more likely for murders of white female victims than for murders of black males. (See graph, left. Click to enlarge.). UNC Chapel Hill Professor Frank Baumgartner examined data from the 89 executions conducted in Florida between 1976 - when the U.S. Supreme Court upheld Florida's use of the death penalty - and 2014. Baumgartner found that executions occurred disproportionately in cases involving white victims and victims who were female. While 56% of all Florida homicide victims during that period were white, 72% of all executions involved white victims. Similarly, 26% of all murder victims were female, but 43% of executions involved female victims. 71% of the black defendants executed in Florida had been convicted of murdering white victims. On the other hand, no white person had been executed in Florida for killing a black victim. Baumgartner also found that the state's use of the death penalty was geographically concentrated, with just 6 of Florida's 67 counties accounting for more than half of all executions. More than half of Florida's counties (36) have not produced any executions, and homicide rates were 31% lower in those counties. The study concludes that "factors such as the victims’ race and gender, as well as the county in which the offender was convicted, inappropriately influence who is executed in Florida....These disparities are not measured by a few percentage points of difference. Rather, they differ by orders of magnitude, clearly demonstrating that vast inequities characterize the implementation of capital punishment in Florida." IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6351&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Arbitrariness * What's New * Florida * Studies * Race * Read more * 687 reads 60 Minutes Profiles Life After Death Row for Exoneree Anthony Ray Hinton Posted: January 13, 2016 On Sunday, January 10, 60 Minutes aired an interview with Anthony Ray Hinton, who was exonerated on April 3, 2015 after spending nearly 30 years on Alabama's death row. In the interview, Hinton described how issues of race permeated his case. Hinton told 60 Minutes correspondent Scott Pelley about a conversation he had with a police lieutenant after having been arrested: "I said, 'You got the wrong guy.' And he said, 'I don't care whether you did it or don't.' He said, 'But you gonna be convicted for it. And you know why?' I said, 'No.' He said, 'You got a white man. They gonna say you shot him. Gonna have a white D.A. We gonna have a white judge. You gonna have a white jury more than likely.' And he said, 'All of that spell conviction, conviction, conviction.' I said, 'Well, does it matter that I didn't do it?' He said, 'Not to me.'" Hinton went on to explain how he felt about the racial bias in his case: "I can't get over the fact that just because I was born black and someone that had the authority who happened to be white felt the need to send me to a cage and try to take my life for something that they knew that I didn't do." Bryan Stevenson, Hinton's attorney and the executive director of the Equal Justice Initiative, joined Hinton for the interview, and spoke about the systemic issues surrounding the case. "This isn't luck, this was a system, this was actually our justice system, it was our tax dollars who paid for the police officers who arrested Mr. Hinton. Our tax dollars that paid for the judge and the prosecutor that prosecuted him. That paid for the experts who got it wrong. That paid to keep him on death row for 30 years for a crime he didn't commit. This has nothing to do with luck. This has everything to do with the way we treat those who are vulnerable in our criminal justice system." IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6350&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Alabama * What's New * Innocence * Race * Read more * 1,494 reads U.S. Supreme Court Strikes Down Florida's Death Sentencing Scheme Posted: January 12, 2016 In an 8-1 decision in Hurst v. Florida released on January 12, the U.S. Supreme Court found Florida's capital sentencing scheme in violation of the 6th Amendment, which guarantees the right to trial by jury. "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death," Justice Sonia Sotomayor wrote in the opinion of the Court. The jury and judge in Hurst's case followed Florida's statutory sentencing procedure, which requires only an "advisory sentence" from a jury. Florida does not require the jury to specify the factual basis of its sentencing recommendation. The sentencing judge must give "great weight" to the jury's recommendation, but only the judge ever provides written reasons why a case is eligible for a death sentence. The Court based its decision largely on Ring v. Arizona, a 2002 decision in which it struck down Arizona's sentencing scheme because a judge, rather than a jury, determined the facts necessary to impose a death sentence. While Florida's procedure adds the advisory recommendation that Arizona's lacked, the Court found the distinction, "immaterial." "As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst’s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment." IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6349&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Arbitrariness * What's New * Sentencing * Florida * U.S. Supreme Court * Read more * 1,614 reads Connecticut Supreme Court Hears Prosecutors' Argument Seeking to Overturn Death Penalty Ban Posted: January 11, 2016 On January 7, the Connecticut Supreme Court heard arguments in State of Connecticut v. Russell Peeler, in which state prosecutors are seeking to overturn the court's 4-3 decision last summer declaring Connecticut's death penalty unconstitutional. The court ruled in August in State v. Santiago that Connecticut's prospective legislative repeal of the death penalty, in combination with "the state’s near total moratorium on carrying out executions over the past fifty-five years," established that "capital punishment has become incompatible with contemporary standards of decency in Connecticut." If the court holds to that decision, the state's remaining death row prisoners would be resentenced to life without possibility of parole. One of the four justices who voted with the majority, Justice Flemming Norcott Jr., retired recently, changing the makeup of the court. Chief Justice Chase T. Rogers, who voted with the minority in the Santiago decision, worried that the appeal presents the possibility of a "slippery slope," saying, "Why shouldn't the court be concerned that every time there's a hotly contested 4-3 decision … that this isn't just going to become a numbers game, that the parties will then wait until somebody retires or leaves the court and raise the issue again?" Prosecutors argued that the court's decision, "eliminated the democratic process." Senior Assistant Public Defender Mark Rademacher, who argued on behalf of the death row inmates, said, "This is a unique decision and a unique problem far different than interpreting a statute, and the majority found that it was a fairly clear statement that the death penalty no longer comports with the standards of decency of Connecticut citizens as expressed through their elected representatives." IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6348&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Arbitrariness * What's New * Connecticut * Recent Legislative Activity * Read more * 1,275 reads Harvard Law Professor Chronicles 'The Death Penalty's Last Stand' Posted: January 8, 2016 In a recent article in Slate, Harvard Law School Professor Charles Ogletree, the executive director of the university's Charles Hamilton Houston Institute for Race and Justice, says "the death penalty is collapsing under the weight of its own corruption and cruelty." He emphasizes the increasing isolation of capital punishment to a few outlier jurisdictions, particularly highlighting Caddo Parish, Louisiana. Caddo Parish received national attention when, shortly after the exoneration of Glenn Ford, who was wrongfully convicted and spent 30 years on death row, District Attorney Dale Cox said the state should "kill more people." Ogletree described the legacy of racial violence and intimidation in the parish, including that Caddo Parish, which has been responsible for 8 of Louisiana's 12 death sentences since 2010, was "the site of more lynchings of black men than all but one other county In America." Until 2011, a Confederate flag flew atop a monument to the Confederacy outside the entrance to the parish courthouse in Shreveport where jurors reported for duty. In 2015, a study (click image to enlarge) found that Caddo prosecutors struck prospective black jurors at triple the rate of other jurors. Ogletree spotlighted a number of questionable death sentences imposed on Caddo defendants who may have been innocent and framed, were intellectually disabled or mentally ill teenagers, or who suffered from serious brain damage and mental illness, and who were provided systemically deficient representation. "Caddo offers us a microcosm of what remains of the death penalty in America today," Ogletree says. 33 jurisdictions have abolished the death penalty or not carried out an execution in more than 9 years. Just six states performed executions in 2015, and three-quarters of the people who were executed last year raised serious questions about mental health or innocence. Death sentences were at a record low (49), and 14, he said, came from two states - Alabama and Florida - that allow non-unanimous jury recommendations of death. Ogletree concludes, "The death penalty in America today is the death penalty of Caddo Parish—a cruel relic of a bygone and more barbarous era. We don’t need it, and I welcome its demise." IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6347&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Alabama * Arbitrariness * What's New * Innocence * Florida * Prosecutorial Misconduct * Race * Louisiana * Read more * 1,989 reads More Nations Reject Death Penalty, Even as Use Spikes in Shrinking Minority of Countries Posted: January 7, 2016 The New York Times reports that the number of countries using capital punishment continued to shrink and its use became more isolated from 2013 to 2014, even as the number of death sentences worldwide rose. 105 countries have abolished the death penalty, most recently Suriname and Mongolia, and the United Nations lists 60 additional countries as "de facto abolitionist" because they have not had any executions in at least 10 years. That leaves just 28 countries that still practice capital punishment. However, the Times reports, the number of death sentences imposed around the world increased by 28%. Ivan Simonovic, the United Nations assistant secretary general for human rights, called it "a troubling paradox that while the majority of countries have abandoned the use of the death penalty, the overall number of those sentenced to death has been increasing recently." He said, "Terrorism offenses and drug-related offenses seem to be the driving arguments behind this increase, although there is no evidence of its deterring effects." China carries out more executions than any other country, estimated in the thousands, though the exact number is unknown. Saudi Arabia's January 2 execution of a Shiite cleric sparked conflict between that nation and Iran; both countries have been criticized by human rights groups for using the death penalty for drug offenses and religious charges. The 5 countries that conducted the most executions were China, Iran, Saudi Arabia, the United States, and Iraq. (Click image to enlarge.) IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6344&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * What's New * International * Read more * 845 reads Report Finds 'Failure of Leadership' by Orange County District Attorney's Office in Jailhouse Informant Scandal Posted: January 6, 2016 A new report by a special committee created by Orange County, California District Attorney Tony Rackauckas (pictured) cites a "failure of leadership" as the root cause of a multi-decade history of prosecutorial misconduct involving jailhouse informants. Documents obtained by defense lawyers and The Orange County Register had revealed what the paper called "a secret and well-organized network of snitches" that had been hidden from defense counsel and the courts. In May 2015, California Superior Court Judge Thomas Goethals disqualified the entire Orange County District Attorney's office from participating in the capital trial of Scott Dekraai after Dekraai's attorneys alleged that prosecutors had deliberately violated his constitutional rights by arranging to place him in a cell near an informant who had been instructed to elicit incriminating statements. The court found that the county's prosecutors had repeatedly violated court orders to disclose information about informants, hiding the existence of an intricate computerized data base tracking how they were used. The prosecutor's office also faces criticism for allegedly failing to disclose benefits it provided to an informant - who now says she provided false testimony - in the 1997 capital trial of John Abel. After the informant scandal became public, Rackauckas established a special committee of legal experts to investigate the office's practices and suggest reforms. The committee's report, released on December 30, criticized the office for a "win-at-all-costs mentality," and concludes, "There is an immediate need for stronger leadership, training, supervision, mentoring, and oversight to change the culture." In 2012, Orange County had the 6th largest county death row in the US and was part of the 2% of US counties responsible for more than half of the country's death row. Since then, it has produced 5 more death sentences, more than all California counties except Riverside and Los Angeles. IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6343&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Arbitrariness * What's New * California * Prosecutorial Misconduct * Read more * 659 reads Prosecutor Says Change Needed if Wyoming Wants to Keep the Death Penalty Posted: January 5, 2016 Natrona County, Wyoming District Attorney Mike Blonigen (pictured) recently called for a reconsideration of the state's death penalty after a federal judge overturned the death sentence of Dale Wayne Eaton, a decade after Blonigen obtained it in 2004. At the time U.S. District Judge Alan B. Johnson reversed Eaton's sentence in 2014, Eaton was the only person on Wyoming's death row. Judge Johnson ruled that Eaton had received ineffective representation, in part because of inadequate funding of the Wyoming Public Defender's Office. Wyoming Gov. Matt Mead requested that the state legislature appropriate $1 million over the next two years to pay for Eaton's defense and another $25,000 to study whether the state is adequately funding prosecutors and public defenders. However, Johnson subsequently barred Wyoming from conducting a new death penalty hearing when the state failed to timely appoint new lawyers for Eaton who were not affiliated with the public defender's office. Blonigen said the state legislature needs to take a serious look at the issue of capital punishment: "You've got to have the resources and have the commitment to it to carry through with it," he said. "I think the Legislature has to decide do we really want this or not. If we really want it, then we have to change some things." Wyoming has not carried out an execution since 1992, and has not sentenced anyone to death since Eaton was sentenced in 2004. IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6342&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * What's New * Costs * New Voices * Wyoming * Read more * 2,111 reads EDITORIALS: Newspapers Stress Findings from DPIC's 2015 Year End Report Posted: January 4, 2016 Several newspapers across the country featured themes from DPIC's 2015 Year End Report in editorials and opinion pieces at the end of December: "Once broadly accepted, capital punishment is increasingly a fringe practice. A handful of states conduct nearly all executions. Four — Texas, Missouri, Georgia and Florida — carried out 93 percent of them in 2015. Sixty-three percent of new death sentences came from a mere 2 percent of U.S. counties, a group with a history of disproportionately using the death penalty.Bad policy encourages this sort of excess: Three states — Alabama, Delaware and Florida — do not require juries to be unanimous when recommending a death sentence. A quarter of new sentences came from split juries in these states." "Not only did executions drop in 2015, but the number of people sentenced to death also hit an historic low, the center said. That could be due to a growing skepticism by jurors of a system susceptible to manipulation through coerced testimony or other misconduct...— or there could be some other reason for a decline in convictions on capital punishment charges...What is clear is that there's no correcting an execution if later evidence shows the prosecution was wrong...Abolition is the direction of the future, and the U.S. should join." "[T]he fact that new death sentences were at an all-time low in Texas this year is reason to applaud...Texas’ declines mirror numbers across the nation. According to the Death Penalty Information Center’s year-end report, death sentences dropped 33 percent from 2014, with 49 people being sentenced to death this year. Just six states carried out executions, the fewest since 1998...Confidence in the system’s integrity is waning. It should only follow that support for the death penalty follows suit." "In 2015, in fact, otherwise proudly liberal California led the nation in death sentences with 14, even as the national number dropped to 49, the fewest since capital punishment was reinstated in 1976, according to the Death Penalty Information Center. Of California’s death sentences, eight were in Riverside County (including five of the eight Latinos sentenced to death nationwide), plus three in Los Angeles and one in Orange...If we’re going to have the death penalty, shouldn’t it be at least somewhat consistent across the state?" "As Florida becomes more isolated in its administration of the death penalty, the state is getting deserved scrutiny for problems with the practice. A year-end report from the Washington, D.C.-based Death Penalty Information Center found just three states — Alabama, California and Florida — accounted for more than half of the nation’s new death sentences in 2015. More than a quarter of this year’s death sentences were imposed by Florida and Alabama after non-unanimous jury recommendations of death — a practice allowed in just those two states and Delaware. ...As Florida officials have pushed to speed up the pace of executions, the Death Penalty Information Center found the rest of the country is heading in the opposite direction. A dozen states haven’t executed anyone in at least nine years, while 18 states and the District of Columbia have outlawed the death penalty altogether. ... As most other states move away from the death penalty, it is long past time for Florida to follow their lead." "A Reading Eagle investigation in October found nearly one in five Pennsylvania inmates sentenced to death the past decade were represented by attorneys disciplined for professional misconduct at some point in their careers. And the majority of these disciplined attorneys had been found by Pennsylvania courts to be ineffective in at least one capital case. More than 150 inmates sentenced to death in the U.S. have been exonerated since 1973, according to data compiled by the Death Penalty Information Center in Washington. Sooner or later an innocent person will be executed, if it hasn't happened already...It is time to end the death penalty in Pennsylvania." (This editorial announced the end of the Eagle's prior position supporting the death penalty under limited circumstances.) IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6341&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Arbitrariness * What's New * Editorials * California * Innocence * Pennsylvania * Texas * Read more * 2,285 reads Innocents Lost: Remembering The Wrongfully Condemned Who Died in 2015 Posted: December 31, 2015 Three death-row exonerees, including two who became symbols of the risks of wrongful capital convictions, died in 2015. David Keaton (pictured, far left), the first man exonerated from death row in the modern era of the death penalty, died on July 3 at the age of 63. A teenaged Keaton was sentenced to death in Florida in 1971 for the murder of an off-duty police officer. His conviction was based upon a coerced confession and erroneous eyewitness testimony. Keaton was exonerated in 1973 when new evidence revealed the actual perpetrator. Glenn Ford (pictured, left), who was exonerated in 2014 after spending nearly 30 years on Louisiana's death row, died of lung cancer on June 29 at age 65. Ford was tried before an all-white jury, represented by appointed counsel who had never handled a criminal case. He was convicted despite the absence of any evidence linking him to the murder weapon, when prosecutors failed to disclose that confidential informants had identified two other men as the murderers. They ultimately admitted that "credible evidence" showed that "Ford was neither present at, nor a participant in," the murder. Death-row exoneree Andrew Golden, who spent 26 months on Florida's death row from 1991 to 1994, died in May. Golden had been wrongly convicted of murdering his wife although police investigators and the medical examiner had testified that the evidence did not suggest foul play. At least four other death-row prisoners who may have been wrongfully condemned - Lester Bower, Brian Keith Terrell, Donnis Musgrove, and Ronald Puksar - were executed or died on death row before judicial review of their cases were complete. IFRAME: //www.facebook.com/plugins/like.php?href=http://www.deathpenaltyinfo.or g/node/6340&layout=standard&show_faces=true&width=95&font=arial&height= 25&action=recommend&colorscheme=light&locale=en_US&send=false in: * Executions * Innocence * What's New * Read more * 4,940 reads Pages * 1 * 2 * 3 * 4 * 5 * 6 * 7 * 8 * 9 * … * next › * last » * 3518031 reads DPIC 2015 Year End Report DEATH PENALTY USE IN 2015 DECLINES SHARPLY Resources * Full text of the report. * VIDEO: "The Death Penalty in the U.S. " (A 2 minute video summary of the Year End Report). * INFOGRAPHIC: "The Death Penalty in the U.S.". * DPIC's Press Release. * 2015 Death Sentences by Name, Race, and County From DPIC Featured Links Battle Scars: Military Veterans and the Death Penalty "Battle Scars: Military Veterans and the Death Penalty" Innocence Public Opinion Latest News BREAKING NEWS (1/7): Florida has executed Oscar Ray Bolin. It was the first execution of 2016. Florida has executed 11 prisoners since 1/1/14. __________________________________________________________________ DPIC Podcasts DPIC Podcast Series: We have begun a new set of podcasts on the death penalty in each state, each with interesting historical facts. The following are now available: Michigan, Wisconsin, Maine, Minnesota, North Dakota, Alaska, Hawaii, Iowa, Vermont, Massachusetts, District of Columbia, Rhode Island, and New Jersey. Check out our podcasts now! Also listen to DPIC's podcasts on death penalty issues. Connect with DPIC Home | RSS | About DPIC | Privacy Policy ©2016 Death Penalty Information Center Skip to main content * Fact Sheet * Upcoming Executions * Execution Database * State-by-State * Podcasts Menu * Home * Issues + Arbitrariness + Clemency + Costs + Deterrence + Federal Death Penalty + Foreign Nationals + Innocence + Intellectual Disability + International + Juveniles + Life Without Parole + Mental Illness + Native Americans + Race + Representation + U.S. Military + Victims + Women + More Issues * Resources + Articles + Books + Editorials + Educational Curricula + Executions Database + Law Review + Multimedia + New Voices + Public Opinion + Related Web Sites + Religion + State by State Database + State Information + Student Resources + Studies + Testimony, Resolutions, Statements & Speeches + Weekly Newsletter + Death Penalty Quiz + More Resources * Facts + Crimes Punishable by the Death Penalty + Death Row + Executions + Lethal Injection + en Español + History of the Death Penalty + Murder Rates + Recent Legislative Activity + Sentencing + States With the Death Penalty + U.S. Supreme Court + Upcoming Executions * Reports * About + About DPIC + DPIC Newsletter + Staff & Board of Directors + Support this Work + Connect with DPIC * Press * Donate Enter your keywords ______________________________ Search View the results at Google, or enable JavaScript to view them here. * Fact Sheet * Upcoming Executions * Execution Database * State-by-State States With and Without the Death Penalty [DP-State-Map.gif] STATES WITH THE DEATH PENALTY (31) Other State Information: * State by State Information * Summary of State Statutes * Execution Information * Sentencing Information * Clemency Process by State * Murder Rates by State Alabama Arizona Arkansas California Colorado Delaware Florida Georgia Idaho Indiana Kansas Kentucky Louisiana Mississippi Missouri Montana Nevada New Hampshire North Carolina Ohio Oklahoma Oregon Pennsylvania South Carolina South Dakota Tennessee Texas Utah Virginia Washington Wyoming ALSO - U.S. Gov't - U.S. Military STATES WITHOUT THE DEATH PENALTY (19) (YEAR ABOLISHED IN PARENTHESES) Alaska (1957) Connecticut (2012) Hawaii (1957) Illinois (2011) Iowa (1965) Maine (1887) Maryland (2013) Massachusetts (1984) Michigan (1846) Minnesota (1911) Nebraska** (2015) New Jersey (2007) New Mexico* (2009) New York (2007)# North Dakota (1973) Rhode Island (1984)^ Vermont (1964) West Virginia (1965) Wisconsin (1853) ALSO Dist. of Columbia (1981) * In March 2009, New Mexico voted to abolish the death penalty. However, the repeal was not retroactive, leaving two people on the state's death row. ** In May 2015, Nebraska voted to abolish the death penalty. The status of the 10 inmates on death row is uncertain at this time. A petition has been submitted to suspend the repeal and put it to a voter referendum. ^ In 1979, the Supreme Court of Rhode Island held that a statute making a death sentence mandatory for someone who killed a fellow prisoner was unconstitutional. The legislature removed the statute in 1984. # In 2004, the New York Court of Appeals held that a portion of the state's death penalty law was unconstitutional. In 2007, they ruled that their prior holding applied to the last remaining person on the state's death row. The legislature has voted down attempts to restore the statute. Tweet IFRAME: //www.facebook.com/plugins/like.php?locale=en_US&href=http%3A//www.deat hpenaltyinfo.org/states-and-without-death-penalty&send=false&layout=box _count&width=48&show_faces=false&action=like&colorscheme=light&font=&he ight=90&appId= * 3890263 reads Recent News CONNECTICUT SUPREME COURT STRIKES DOWN DEATH PENALTY On August 13, 2015, the Connecticut Supreme Court (4-3) held that the state's death penalty was in violation of the state's constitution, especially in light of the state legislature's prospective repeal of the death penalty in 2012. The ruling means that the death sentences of those who were not covered by the legislative repeal will now have those sentences reduced to life. Excerpts from the main opinion follow: "[W]e are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose." ♦♦♦ ‘‘'[W]e have little more than an illusion of a death penalty in this country. ... Whatever purposes the death penalty is said to serve— deterrence, retribution, assuaging the pain suffered by victims’ families—these purposes are not served by the system as it now operates.'" (quoting Judge Kozinski of the U.S. Court of Appeals for the 9th Cir.) ♦♦♦ "In concluding that the death pen- alty is unconstitutional, however, we recognize that the legal and moral legitimacy of any future executions would be undermined by the ever present risk that an innocent person will be wrongly executed." ♦♦♦ "In prospectively abolishing the death penalty, the legislature did not simply express the will of the people that it no longer makes sense to maintain the costly and unsatisfying charade of a capital punishment scheme in which no one ever receives the ultimate punishment. Public Act 12-5 also held a mirror up to Connecticut’s long, troubled history with capital punishment: the steady replacement by more progressive forms of punishment; the increasing inability to achieve legitimate penological purposes; the freakishness with which the sentence of death is imposed; the rarity with which it is carried out; and the racial, ethnic, and socio-economic biases that likely are inherent in any discretionary death penalty system. Because such a system fails to comport with our abiding freedom from cruel and unusual punishment, we hold that capital punishment, as currently applied, violates the constitution of Connecticut." (Connecticut v. Santiago, SC 17413, Aug. 13, 2015). Home | RSS | About DPIC | Privacy Policy ©2016 Death Penalty Information Center #Search RSS Death Penalty Focus [dpf_frontpage_final_01.gif] Death Penalty [dpf_frontpage_details_03.gif] _____________ Submit * [dpf_frontpage_final_06.gif] + Advisory Board [spacer.gif] + Board Of Directors [spacer.gif] + Contact Us [spacer.gif] + DPF Merchandise [spacer.gif] + DPF's Projects [spacer.gif] + Site Map [spacer.gif] + Staff [spacer.gif] * [dpf_frontpage_final_07.gif] + The Death Row Population [spacer.gif] + Profiles of Exonerees, Victims, and Law Enforcement [spacer.gif] + 10 Reasons to Oppose the Death Penalty [spacer.gif] * [dpf_frontpage_final_08.gif] + Publications, Books, and Multi-Media [spacer.gif] + en Español [spacer.gif] + History [spacer.gif] + Resources for Students and Teachers [spacer.gif] + Links [spacer.gif] + Recent Reports [spacer.gif] * [dpf_frontpage_final_09.gif] * [dpf_frontpage_final_10.gif] + DPF Week [spacer.gif] + An Evening with Mario Marazziti [spacer.gif] + Annual Awards Dinner [spacer.gif] * [dpf_frontpage_final_11.gif] * [dpf_frontpage_final_12.gif] + Join a chapter [spacer.gif] + Request a speaker [spacer.gif] + Write a letter to the editor [spacer.gif] + Volunteer [spacer.gif] * [dpf_frontpage_final_13.gif] What's New [MLKCARD1_1.png] Dr. King Opposed Capital PunishmentCelebrate the legacy of Martin Luther King, Jr. by sharing a quote. by Death Penalty Focus [Read More] The Arbitrary Execution of Tom Thompson by Andy Love [Read More] California's death penalty in 2015There were several turning points in the state with the largest death row in the Western Hemisphere by David Crawford [Read More] [Ron McAndrew 1 cropped.jpg] Former Florida Warden Haunted by Botched ExecutionDuring my tenure as Warden at Florida State Prison it was my duty to oversee the executions of three men: John Earl Bush, John Mills Jr. and Pedro Medina. Remembering every gruesome detail of their deaths is haunting. [Read More] [dpf_frontpage_detail_21.gif] [ccv logo v2.jpg] California Crime Victims for Alternatives to the Death Penalty (CCV)CCV seeks to identify, mobilize and empower the families, friends, and loved ones of murder victims who oppose the death penalty. [Read More] [dpf_frontpage_detail_24.gif] [dpenalty_whyigive_01.gif] [Nancy%20Vollertson_1.jpg] Why I Give Nancy Vollertsen Edmond, OK I support DPF because I know that any money I contribute goes directly towards the fight to end the death penalty. My brother, Greg Wilhoit, spent five years on death row for a crime he did not commit. He was exonerated because of the tireless work of a public defender and the faith and determination of his family. DPF has given Greg an opportunity to share his story and draw attention to the terrible possibility that an innocent person could be executed. [dpenalty_whyigive_02.gif] [dpf_frontpage_detail_11.gif] Sign me up! _______________ Optional Member Code ____________________ Sign Up Get email alerts from DPF [dpf_frontpage_detail_18.gif] _________________________________________________________________ * [icon_rss.gif] Subscribe to our Blog RSS feed privacy policy site map email page [facebook_bug.gif] [twitter.gif] copyright information contact info [dpf_frontpage_final_04.gif] Jump to navigation Skip navigation American Civil Liberties Union logo American Civil Liberties Union Follow 251k Search form Enter your keywords _______________ Search * Renew * Take Action * Donate + Make a Gift + Join Become a Member + Renew Your Membership + Monthly Giving + Other Ways to Give * Capital Punishment Capital Punishment + Execution Methods + Innocence and the Death Penalty + Mental Illness and the Death Penalty + Prosecutorial Misconduct and Capital Punishment + Racial Disparities and the Death Penalty An Innocent Man Free at Last * Criminal Law Reform Criminal Law Reform + Reforming Police Practices + Sentencing + Effective Counsel + Drug Law Reform + Drug Testing The War on Marijuana * Disability Rights Disability Rights + Disability Rights and Criminal Justice + Disability Rights and Education + Integration and Autonomy of People with Disabilities Access Denied * Free Speech Free Speech + Internet Speech + Student Speech and Privacy + Employee Speech and Whistleblowers + Intellectual Property + Rights of Protesters + Freedom of the Press + Photographers' Rights + Artistic Expression + Campaign Finance Reform Know Your Rights: Protests * HIV HIV + HIV/AIDS and Discrimination + HIV/AIDS and Criminal Justice * Human Rights Human Rights + Human Rights and Criminal Justice + Human Rights and Immigration + Human Rights and the Death Penalty + Human Rights and National Security + Human Rights and Privacy + Human Rights and Racial Justice + Human Rights and Labor Trafficking + Human Rights and Women's Rights + Treaty Ratification With Liberty to Monitor All * Immigrants' Rights Immigrants' Rights + Immigrants' Rights and Detention + ICE and Border Patrol Abuses + Road to Citizenship + Deportation and Due Process + State and Local Immigration Laws American Exile * Juvenile Justice Juvenile Justice + Youth Incarceration + School-to-Prison Pipeline Hard to Watch. 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These easy-to-use resources were created by the ACLU so you can have your rights at your fingertips. * Defending our rights + Defending Our Rights + Court Battles + Supreme Court Cases + Federal Advocacy + Find Your Local Affiliate Go to Defending Our Rights The ACLU works tirelessly in courts, legislatures, and communities to defend and preserve the Constitution’s promise of liberty for everyone in our country. * Blogs Blogs + Speak Freely + Free Future + Washington Markup Feeds + Editor's Picks + Out for Freedom + Today in Police Reform See all blogs and feeds * About + About + Leadership + History + Media + Local Affiliates + Careers + Ambassadors + Officers and Board + Financial Info and Reports + How You Can Help + FAQ + Centers + Contact Us Go to About the ACLU For almost 100 years, the ACLU has worked to defend and preserve the individual rights and liberties guaranteed by the Constitution and laws of the United States. * Shop The Case Against the Death Penalty The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion. Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment. The ACLU’s opposition to capital punishment incorporates the following fundamental concerns: * The death penalty system in the US is applied in an unfair and unjust manner against people,largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place. People of color are far more likely to be executed than white people, especially if thevictim is white * The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates. * Innocent people are too often sentenced to death. Since 1973, over 140 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed. __________________________________________________________________ INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES In 1972, the Supreme Court declared that under then-existing laws "the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." (Furman v. Georgia, 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so "harsh, freakish, and arbitrary" as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations. But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances. In 1976, the Supreme Court moved away from abolition, holding that "the punishment of death does not invariably violate the Constitution." The Court ruled that the new death penalty statutes contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." (Gregg v. Georgia, 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder. Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976. __________________________________________________________________ ACLU OBJECTIONS TO THE DEATH PENALTY Despite the Supreme Court's 1976 ruling in Gregg v. Georgia, et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds: Capital punishment is cruel and unusual. It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death. Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence. The death penalty violates the constitutional guarantee of equal protection. It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country. The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective. Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime. Capital punishment wastes limited resources. It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society's control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment. Opposing the death penalty does not indicate a lack of sympathy for murder victims. On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members. Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to "guided discretion." Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution. A society that respects life does not deliberately kill human beings. An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real. __________________________________________________________________ CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES Deterrence is a function not only of a punishment's severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons. A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions. The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year, this is still only about one percent of all homicides known to the police. Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137, reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”. Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 (Woodson v. North Carolina, 428 U.S. 280). A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice. We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal. Persons who commit murder and other crimes of personal violence often do not premeditate their crimes. Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others. Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs. Capital punishment doesn't solve our society's crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism. Capital punishment has been a useless weapon in the so-called "war on drugs." The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers. If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime. The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because "a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. " In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions. Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty. On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states: California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it. Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions. Evidently, the threat of the death penalty "does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states." Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates. Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion. Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell, who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row. Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court's ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989) Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction. But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole. __________________________________________________________________ CAPITAL PUNISHMENT IS UNFAIR Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair. Racial Bias in Death Sentencing Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman. Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that "the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist "legacy of slavery." Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black. Our nation's death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one's conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987) In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black. More striking is the racial comparison of victims. Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim. Between 1976 and 2005, 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men. So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all. Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.” The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims." (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was "a constitutionally significant risk of racial bias...." (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was "best presented to the legislative bodies," subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995) In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded: "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process..." Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires. These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person. Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color. Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims. Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims.[1] Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death, even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse. Since 1900, only 51 women have been executed in the United States (15 of them black). Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel. Fairness in capital cases requires, above all, competent counsel for the defendant. Yet "approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.") Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman, "One searches our chronicles in vain for the execution of any member of the affluent strata in this society"(408 US 238). Failure of Safeguards The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination."(Gross and Mauro, Death and Discrimination 1989) Justice John Marshall Harlan, writing for the Court in Furman, noted "… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." (402 U.S. 183 (1971)) Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court "do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce." Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge's instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. "Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law." Even if the jury's sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilty plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, and the governor's final clemency decision, among others. Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice. Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997. The House judged the current system to be "a haphazard maze of unfair practices." In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual "constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime." (International Commission of Jurists, Administration of the Death Penalty in the United States 1996) In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly. Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice. __________________________________________________________________ CAPITAL PUNISHMENT IS IRREVERSIBLE Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me." Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed. Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court. Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed. In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man.^^[2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench.[3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it.[4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person.[5] Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared: * In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty. * In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed. * In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer. * In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler's explanation of the child's cause of death and the physician who performed the autopsy admitted his work had not been thorough. * In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs' death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state's witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution. * In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury's recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian's behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian's conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges. * In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants' innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges. * In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, "One of you two is going to hang for this." Looking at Brandley, the officer said, "Since you're the nigger, you're elected." In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley's aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991) This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant's previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty. __________________________________________________________________ CAPITAL PUNISHMENT IS BARBARIC Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers: The traditional mode of execution, hanging, is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off. Two states, Idaho and Utah, still authorize the firing squad. The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire. Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows: "At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead. "The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied. "At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans' body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes." Afterwards, officials were embarrassed by what one observer called the "barbaric ritual." The prison spokesman remarked, "This was supposed to be a very clean manner of administering death." The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a "cruel and unusual punishment." Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens: "When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes. "At this point Don's body started convulsing violently.... His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched. "After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth. "Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete. “Don Harding took ten minutes and thirty one seconds to die." (Gomez v. U.S. District Court, 112 S.Ct. 1652) The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection, first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is "substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." (Chaney v. Heckler, 718 F.2d 1174, 1983). Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments: "The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death." Botched Lethal Injections Nor does execution by lethal injection always proceed smoothly as planned. In 1985 "the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser." In 1988, during the execution of Raymond Landry, "a tube attached to a needle inside the inmate's right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses." Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break. Lethal Injection Protocol Issues Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart.[6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology.[7] Some states have replaced the three-drug cocktail with a single substance,[8] while others have replaced thiopental in the three-drug sequence with another anesthetic.[9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process.[10] Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment,[11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution.[12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure.[13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection.[14] Although similar suits are pending in other states,[15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used.[16] Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions[17] and European Union restrictions on the exportation of drugs that may be used to kill.[18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school.[19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.”[20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed.[21] Witnessing the Execution Most people who have observed an execution are horrified and disgusted. "I was ashamed," writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. "I was an intruder, the only member of the public who had trespassed on [the condemned man's] private moment of anguish. In my face he could see the horror of his own death." Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber: "If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The 'last mile' seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. 'No more. I don't want to do this anymore.'" 1996) Recently, Allen Ault, former executioner for the State of Georgia, wrote, “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.” For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. "I received more than seven hundred applications for the position, many of them offering cut-rate prices." (Life and Death in Sing Sing 1928) Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960) Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature. More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: "The death penalty cannot be useful, because of the example of barbarity it gives men." Beccaria's words still ring true – even if the death penalty were a "useful" deterrent, it would still be an "example of barbarity." No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."(Boston Globe, August 16, 1976) Death Row Syndrome Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years.[22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement[23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon.[24] In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior.[25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community.[26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them. Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association.[27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.”[28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings.[29] Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil.[30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.”[32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court.[33] __________________________________________________________________ CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions. Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, "For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life." (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960) It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – "making the punishment fit the crime." If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder. If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder. Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy. Murder Victims Families Oppose the Death Penalty Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, "As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder." (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981) Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written: "I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, 'Please, God. Please don't take his life too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief."(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989) Across the nation, many who have survived the murder of a loved one have joined Murder Victims' Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors. Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently. Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James' killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment." Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out "You can't fight murder with murder . . .(l)ife in prison would have been fine. I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want." __________________________________________________________________ CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. "The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.") A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., "Capital Losses" 1982) The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost. In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence." In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million.59 Florida, with one of the nation's most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence." (David von Drehle, "Capital Punishment in Paralysis," Miami Herald, July 10, 1988) A 1993 study of the costs of North Carolina's capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution. In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, "My frustration is more about the fact that the death penalty does not serve any useful purpose and it's very expensive." Don Heller, a Republican and former prosecutor, wrote "I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility." Heller emphasized that he is not "soft on crime," but that "life without parole protects public safety better than a death sentence." Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. "Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety."[34] From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. "Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent." The only way to make the death penalty more "cost effective" than imprisonment is to weaken due process and curtail appellate review, which are the defendant's (and society's) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice: In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned. In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty "resource centers" charged with providing counsel on appeal in the federal courts. (Carol Castenada, "Death Penalty Centers Losing Support Funds," USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory. __________________________________________________________________ CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty. A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41%. Only a minority of the American public would favor the death penalty if offered such alternatives. __________________________________________________________________ INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that "the facts clearly show that the death penalty is regarded in Europe as something of an anachronism…." 1962) Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to "progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment." By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime. Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an "inhumane" punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it. International Law A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011.[35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party: In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties.[36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime.[37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights. Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime.[38] The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives.[39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor. In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).[40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows. Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment.[42] Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty. The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012. __________________________________________________________________ [1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008, 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf. [2] Liebman et. al, Los Tocayos Carlos, 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012). [3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man, Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have -executed-an-innocent-man/257106/. [4] See id. [5] See id.; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed, PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html. [6] A Three-Drug Cocktail, WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR20070 92600116.html; see also Victoria Gill, The Search for a Humane Way to Kill, BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961. [7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-2011 0122; John Schwartz, Death Penalty Drug Raises Legal Questions, N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all. [8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol, Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-ch anging-its-lethal-injection-protocol/; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty, Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR20110 31006250.html; David Beasley, Georgia Delays Execution Amid Drug Protocol Change, Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUS BRE86G14L20120717; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution, Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424. html; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate, WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-e xecute-inmate/; Idaho Switches Execution Protocol to Single-Drug Lethal Injection, Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-executi on-protocol-single-drug-lethal-injection/. [9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns, NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raise s-concerns; Steve Eder, Virginia Adds New Drug for Lethal Injections, WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-i njections/. [10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol, Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-d rug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html. [11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution, N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all. [12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure, USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207m et--executionsART_ST_U.htm; Court Gives Arizona Warning About Execution Protocol, Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228ar izona-moorman-execution-death-row-inmate-lawyers-seek-stays.html. Notably, however, the panel did not halt Arizona’s scheduled executions. Id. [13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution, Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUS BRE86M1F720120723. [14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug, Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-co ncerns-about-new-drug/. [15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol, KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-pro tocol/. [16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids, Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execut ion-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injectio n-three-drug-protocol; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails, Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after -lethal-injection-challenge-fails/. [17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low, Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened -stocks-run-low; John Schwartz, Seeking Execution Drug, States Cut Legal Corners, N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all; Kiefer, supra note 7. [18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections, BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578. [19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed, Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUS TRE73J7MH20110420; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing, Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execu tion-drug-fda-lawsuit-brk02-ON.html; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug, USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit -seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler, California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-londo n-wholesaler-7888; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug, California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_ 1556155.html. [20] Pelofsky, supra note 14. [21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs, Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal -injection-drugs.html. [22] See Elizabeth Rapaport, A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_pheno menon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S., Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Ro w_Syndrome%20_IJC_Nov_2010.pdf. [23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confineme nt-united-states-0. [24] See Harrison and Tamony, supra note 25. [25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row. [26] See id. [27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution, 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/d ocuments/17-2SmithArticle.pdf. [28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari). [29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases, 14 J.L. & Pol’y 735, 738-39 (2006). [30] Soering v. UK, App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf. [31] See David Wallace-Wells, What is Death Row Syndrome?, Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_ is_death_row_syndrome.html; Smith supra note 30. [32] Smith supra note 30. (quoting Soering, 11 Eur. H. R. Rep. at 475-76). [33] Id. at 239. [34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year, L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-c osts-20110620. [35] Figures on the Death Penalty, Amnesty International, http://www.amnesty.org/en/death-penalty/numbers. [36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [hereinafter Second Optional Protocol]. [37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions, World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked -Questions.html; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty, World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the -abolition-of-the-death-penalty.html; Second Optional Protocol, supra note 21. [38] Desert, Second Optional Protocol: Frequently Asked Questions, supra note 22. [39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_19 63.pdf. [40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf. [41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law- us-compliance-torture-and-race-conventions. [42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf. Related Issues * Capital Punishment * Facebook * Twitter * Reddit * Print No government should experiment with human life Act Now Sign Up for Breaking News Email Address * ____________________________________________________________ ZIP Code * ____________________________________________________________ Go * Publications * Multimedia * Media * Contact * Donate American Civil Liberties Union Because Freedom Can't Protect Itself * ACLU on Facebook * ACLU on Twitter * ACLU on YouTube * The ACLU RSS Feed Guidestar Exchange Gold Participant BBB Accredited Charity * User agreement * Privacy statement * Accessibility This is the website of the American Civil Liberties Union and the ACLU Foundation. Learn more about these two components of the ACLU. © 2015 ACLU #publisher Jump to navigation [insignia.gif] Cornell University Law SchoolSearch Cornell (BUTTON) Toggle navigation Support Us! Search form Search Search all of L GO! * About LII + Who We Are + What We Do + Who Pays For This + Contact Us * Get the law + Constitution + Supreme Court + U.S. Code + CFR + Federal Rules o Federal Rules of Appellate Procedure o Federal Rules of Civil Procedure o Federal Rules of Criminal Procedure o Federal Rules of Evidence o Federal Rules of Bankruptcy Procedure + U.C.C. + Law by jurisdiction o State law o Uniform laws o Federal law o World law * Lawyer directory * Legal encyclopedia + Business law + Constitutional law + Criminal law + Family law + Employment law + Money and Finances + More... * Help out + Give + Sponsor + Advertise + Create + Promote + Join Lawyer Directory * IFRAME: https://platform.twitter.com/widgets/follow_button.html?screen_name =LIICornell&show_screen_name=false * IFRAME: https://www.facebook.com/plugins/like.php?app_id=275300119163721&hr ef=http%3A%2F%2Ffacebook.com%2Flaw.lii&send=false&layout=button_cou nt&width=90&show_faces=false&action=like&colorscheme=light&font&hei ght=20 Wex * all pages * articles * español * Inbox Project * search * FAQ Death Penalty death penalty: an overview Congress or any state legislature may prescribe the death penalty, also known as capital punishment, for murder and other capital crimes. The Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment's Due Process Clause, the Eighth Amendment applies against the states, as well as the federal government. Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts both look for objective factors to show a change in community standards and also make independent evaluations about whether the statute in question is reasonable. Proportionality Requirement The U.S. Supreme Court has determined that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment's prohibition against cruel and unusual punishments. In performing its proportionality analysis, the Supreme Court looks to the following three factors: a consideration of the offense's gravity and the stringency of the penalty; a consideration of how the jurisdiction punishes its other criminals; and a consideration of how other jurisdictions punish the same crime. In Furman v. Georgia, 408 U.S. 238, (1972), the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against the poor and minorities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society. In Gregg v. Georgia, 428 U.S. 153, (1976), the Court refused to expand Furman. The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence. Specifically, the Court upheld Georgia’s new capital sentencing procedures, reasoning that the Georgia rules reduced the problem of arbitrary application as seen in earlier statutes. The death penalty, however, remains limited to capital offenses. In the landmark case of Coker v. Georgia, 433 U.S. 584, (1977), the Supreme Court ruled that a state cannot apply the death penalty to the crime of raping an adult woman because it violates the proportionality requirement. The Court came to this conclusion by considering objective indicia of the nation's attitude toward the death penalty in rape cases. At the time only a few states allowed for executions of convicted rapists. Twenty-one years later, in Kennedy v. Louisiana, 554 U.S. 407, (2008), the Supreme Court extended its ruling in Coker, holding that the penalty is categorically unavailable for cases of child rape in which the victim lives. Because only six states in the country permitted execution as a penalty for child rape, the Supreme Court found the national consensus to hold its use in these cases as disproportionate. Principle of Individualized Sentencing To impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualized sentencing process. In Ring v. Arizona, 536 U.S. 584, (2002), the Supreme Court held that it is unconstitutional for "a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." An aggravating factor is any fact or circumstance that increases the culpability for a criminal act. The Supreme Court further refined the requirement of "a finding of aggravating factors" in Brown v. Sanders, 546 U.S. 212 (2006). For cases in which an appellate court rules a sentencing factor invalid, the Court ruled that the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor. Kansas v. Marsh, 548 U.S. 163, (2006), offered yet another clarification to the principle of individualized sentencing jurisprudence. After Marsh, states may impose the death penalty when the jury finds any aggravating and mitigating factors to be equally weighted, without violating the principle of individualized sentencing. Method of Execution A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal. Courts apply an "objectively intolerable" test when determining if the method of execution violates the Eighth Amendment's ban on cruel and unusual punishments. State courts and lower federal courts have refused to strike down hanging and electrocution as impermissible methods of execution; however, the U.S. Supreme Court did not take up a method of execution case for 117 years until Baze v. Rees, 553. U.S 35, (2008). Baze held that lethal injection did not constitute a cruel and unusual punishment. This case resolved a controversial issue in light of recent evidence that a lethal injection's three-drug combination fails to alleviate pain and prevents the criminal from signaling such pain because of paralysis inducement. Classes of Persons Not Eligible for the Death Penalty More recently, in Atkins v. Virginia, 536 U.S. 304, (2002), the Supreme Court determined that executing mentally retarded criminals violates the ban on "cruel and unusual punishments" because their mental handicap lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe. However, in Bobby v. Bies, 556 U.S. 825, (2009), the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled mentally retarded before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate retardation claims. In Roper v. Simmons, 543 U.S. 551, (2005), the Supreme Court invalidated the death penalty for all juvenile offenders. The majority opinion pointed to teenagers' lack of maturity and responsibility, greater vulnerability to negative influences, and incomplete character development. The Court concluded that juvenile offenders assume diminished culpability for their crimes. For more details see the Cornell Law School Death Penalty Project. menu of sources Federal Material U.S. Constitution and Federal Statutes * U.S. Constitution: Eighth Amendment - Cruel and Unusual Punishment * CRS Annotated Constitution * U.S. Code: 18 U.S.C. Federal Judicial Decisions * U.S. Supreme Court: + Recent Supreme Court Decision o Kennedy v. Louisiana (07-343) (2008) o Brown v. Sanders, 546 U.S. 212 (2006) o Kansas v. Marsh, 548 U.S. 163 (2006) o Baze v. Rees (07-5439) (2008) o Roper v. Simmons, 543 U.S. 551 (2005) + Older Supreme Court Death Penalty Decisions + Liibulletin Oral Argument Previews * U.S. Circuit Courts of Appeals: Recent Death Penalty Decisions State Material State Statutes * State Criminal Codes State Judicial Decisions * N.Y. Court of Appeals: + Recent death penalty decisions + Commentary from liibulletin-ny * Appellate Decisions from Other States Other References Key Internet Sources * Cornell Law School Death Penalty Project * Death Penalty Information Center * Southern Center for Human Rights * Anti Death Penalty + ACLU + Amnesty International + National Coalition to Abolish the Death Penalty * Pro Death Penalty + Pro-Death Penalty + Justice For All + Pro-Death Penalty Web page * Links of Interest + Execution of mentally ill + Juveniles & the Death Penalty + Legal issues + Race & Class Bias + Women & The death penalty * On-line Books & Papers + David Anderson, The Death Penalty - A Defence + Death Penalty Paper * Death penalty links * Death Penalty Links by Topic * 1000+ death penalty links Other Topics * Criminal Procedure * Sentencing wex: THE LEGAL PROCESS criminal law criminal procedure type wex articles Wex Toolbox __________________________________________________________________ __________________________________________________________________ Find a Lawyer All lawyers * About LII * Contact us * Advertise here * Help * Terms of use * Privacy * [LII_logo_footer.gif] #publisher alternate (BUTTON) Close Skip to main content sign in * Saved for later * Comment activity * Edit profile * Email preferences * Change password * Sign out subscribe search dating more from the guardian: * dating * jobs change edition: * switch to the UK edition switch to the US edition switch to the AU edition International * switch to the UK edition * switch to the US edition * switch to the Australia edition The Guardian * home * › opinion * columnists * home * UK * world * sport * football * opinion selected * culture * business * lifestyle * fashion * environment * tech * travel browse all sections close Capital punishment Opinion The death penalty is in its final throes, but too many are still being executed Clive Stafford Smith Of the 195 states recognised by the UN, only 37 still use capital punishment – in the misguided belief that it is an effective deterrent An Egyptian anti-Mubarak protester holds a noose during a protest in Cairo ‘I have watched while six of my clients die, two in the gas chamber, two in the electric chair, and two on the gurney.’ Photograph: Amr Nabil/AP Thursday 27 August 2015 14.39 BST Last modified on Tuesday 1 September 2015 12.18 BST * Share on Facebook * Share on Twitter * Share via Email * Share on Pinterest * Share on LinkedIn * Share on Google+ * Share on WhatsApp History may be susceptible to few inexorable predictions. But we are on safe ground if we say that sacrificing a human being to the false god of deterrence, or for pure revenge, is not going to look civilised when we peer back from the 22nd century, any more than our own history books laud the Salem witch trials three centuries ago. At one time or another, essentially every country has used capital punishment. Yet today, of the 195 states recognised by the United Nations, only 37 killer countries remain: just one in five. Of the rest, 102 have formally abolished, and 56 have either not executed for more than 10 years, or have imposed a formal moratorium. The death penalty is in its death throes. However, just as a wild animal may be most dangerous when cornered, so the renegade states lash out. Pakistan is an example of this. Nine months ago, the moratorium imposed by the Pakistan People’s Party (PPP) six years earlier held firm. In 1979, the then PPP leader, Zulfiqar Ali Bhutto, was hanged by the military regime; in other words, they had experienced the caprice of capital punishment first-hand. However, the current PMLN government, led by Nawaz Sharif, has vowed to execute everyone on death row – which, at 8261 people, is more than in any other country. This is meant to deter the terrorists who had carried out the hideous Peshawar school massacre in December 2014. (All the “jihadis” had willingly died in the attack, so the deterrent value of executions seemed questionable even then.) Yet Pakistan is an example of a country where deterrence works – for politicians at least. For months, the PMLN government had been discouraged from carrying out executions, by an EU threat to take away favourable trading status, which is said to be worth some $1.3bn dollars a year. They have also been deterred by the terrorists themselves. While those who were said to be extremists made up at least 13 of the 25 hanged in the first seven weeks of the gallows, on 11 February this year the terrorists apparently issued their own secretive threat of retribution: if any more of their number should be hanged, they would target the politicians and their families personally. Iran has doubled the rate at which it hangs people for narcotics violations, overwhelmingly small-time mules Naturally, the politicians did not admit anything publicly, but they stopped executions for a month. The 189 executions since 13 March have included not a single member of these proscribed groups. In other words, the pretext for execution is simply false, and yet Pakistan is executing a flood of those with nothing to do with terrorism – from schizophrenics, paraplegics and juveniles, many of whom seem to be innocent. Iran is another country where a recent bloodbath on the gallows may be subject to western influence. Iran has recently doubled the rate at which it hangs people for narcotics violations and these are, overwhelmingly, small-time mules. Iinvestigations by Reprieve show that UK support for Iranian drug police directly enabled 2,917 hangings, and a western-funded UN drugs programme has helped to put the necks of more than two drug mules in the noose each day this year. Another pretext for using the death chamber is common to conservative Christians and Muslims alike – that the death penalty is somehow mandated by God. Their take on the lex talionis (“an eye for an eye”) is itself dubious, as such countries impose death for many crimes, including drugs and blasphemy. In Saudi Arabia the new ruler, King Salman, has more than doubled the number of prisoners beheaded this year, and more than half have been foreigners who generally do not speak Arabic and have little chance of defending themselves. Related: Abolishing the death penalty was less popular than we care to remember | Richard Ackland The United States still has more than 3,000 people on death row, but only five states have managed to conduct 19 executions between them this year, down more than two-thirds on 1999, with public support waning. However, the battle is far from over. The US is less susceptible to international pressure, and the conservatives take their shibboleths seriously. Recently, some states have had trouble obtaining lethal injection drugs, for the simple reason that pharmaceutical companies do not want their product used to kill people. In a recent supreme court challenge, the conservative five-justice majority voted to uphold the lethal execution process, insisting that a prisoner who objects to a particularly gruesome and painful method of execution must help the state by suggesting an alternative way to execute him. China may be the ultimate challenge for abolitionists. Like the US, the regime is not impressed by international pressure. Despite this, Chinese officials have stated that abolition will come sometime in the future, when the time is right. Yet, ironically, they have created the conditions for the internal backlash they fear from the Chinese people: the population remains strongly (95%) in favour of the death penalty for the simple reason that official propaganda says that executions deter crime, and the regime stifles dissent. When the regime allows meaningful discourse, the facts will inevitably create the moment for abolition. For those of us in the trenches of this battle, it is cold comfort that history will place us on the correct side of the argument. I have watched while six of my clients die: two in the gas chamber, two in the electric chair, and two on the gurney. Each time, I have come out of the chamber, and looked up at the stars, wondering how such barbarism has made the world a safer or more civilised place. For today, there are just too many individual, living human beings systematically killed, all for no good reason. __________________________________________________________________ More comment Topics * Capital punishment * Pakistan * South and Central Asia * Saudi Arabia * Middle East and North Africa * (BUTTON) More… * US justice system * China * Asia Pacific * Human rights __________________________________________________________________ * Share on Facebook * Share on Twitter * Share via Email * Share on Pinterest * Share on LinkedIn * Share on Google+ * Share on WhatsApp * Reuse this content View all comments > comments Sign in or create your Guardian account to join the discussion. This discussion is closed for comments. We’re doing some maintenance right now. You can still read comments, but please come back later to add your own. Commenting has been disabled for this account (why?) 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All rights reserved. #The Atlantic Best of The Atlantic publisher The Atlantic * Subscribe * Search * Menu The Death-Penalty Feud at the Supreme Court * * * ____________________ (BUTTON) Close * Home * Latest * Most Popular * Magazine * Video * Photo * Writers * News * Politics * Business * Culture * Science * Technology * Health * Sexes * U.S. * Education * Global * Notes * Projects * Events * Books * Shop * Your AccountSign Out * Sign InSign Up [javascript] 2 Free Issues Try two trial issues of The Atlantic with our compliments. Claim now Follow * Facebook * Twitter * LinkedIn * Tumblr * Pinterest * RSS * App Store See our Newsletters > previousWhat the Fight for the Speakership Is Actually AboutHow California's Largest School District Blamed an 8th Grader for Her Rapenext story The Death-Penalty Feud at the Supreme Court The justices weigh a new set of cases and their implications for the Eighth Amendment and lethal injection. 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Sign up * * * * * * * * * Garrett Epps * Oct 13, 2015 * Politics Last week, Governor Mary Fallin of Oklahoma admitted that her state had misled the United States Supreme Court. __________________________________________________________________ Related Story [thumb_wide_medium.jpg] How a Victory for the Death Penalty May Hasten Its End __________________________________________________________________ In a brief statement issued hours before the scheduled execution of Richard Glossip, Fallin said that she was granting him a 37-day stay “due to the Department of Corrections having received potassium acetate as drug number three for the three-drug protocol.” The state last spring assured the Supreme Court that it stood ready to execute Glossip with a three-drug cocktail consisting of “midazolam, followed by vecuronium or recuronium bromide, then potassium chloride” a different drug with different effects. Glossip had challenged his planned execution on the grounds that the use of midazolam, a sedative, might not render him unconscious before the other two drugs are administered. That, he said, would make the execution “cruel and unusual” punishment, in violation of the Eighth Amendment. “Oklahoma’s lethal injection protocol is not cruel and unusual,” the state argued, “but rather the most humane form of execution available to the State.” A five-justice majority upheld the three-drug protocol Oklahoma said it was going to use. “We are not persuaded,” that the drugs at issue were likely to cause enough pain to render the execution “cruel and unusual,” Justice Samuel Alito wrote for the majority. After all, “12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems.” Or maybe not so much. When the state told the Court about its “humane” procedures, it didn’t even know what three drugs it had on hand. Shortly before Glossip’s scheduled execution, in fact, Fallin learned that an autopsy showed Oklahoma had already used the wrong drug to execute another condemned inmate, Charles Warner, in January. Warner was originally a petitioner in Glossip’s case. The Supreme Court denied him a stay, then accepted the case after Warner had been killed. Justice Stephen Breyer, in a separate opinion for himself and Justice Ruth Bader Ginsburg, announced in Glossip that, in his view, the death penalty could no longer be administered fairly, and thus was unconstitutional. That didn’t sit well with Justice Antonin Scalia, who wrote in a separate opinion that Breyer’s “argument is full of internal contradictions and (it must be said) gobbledy-gook.” A week after Fallin’s revelation, the Court heard the first of the four death-penalty cases it has granted this term. The hard feelings in Glossip have apparently not healed. Kansas v. Gleason and Kansas v. Carr challenge Kansas trial judges’ instructions to two juries mulling death sentences for murderers. Under existing precedent, the jury is supposed to consider a statutory set of “aggravating factors,” which the prosecution must prove beyond a reasonable doubt. The defendant may ask the jury to consider “mitigating factors” (such as a defendant’s limited mental capacity or history of mental illness, a past history of abuse, or anything else—including the desirability of mercy—that his lawyers can think of). Unlike the prosecution, the defendant doesn’t have to prove that these factors exist “beyond a reasonable doubt,” and the jurors don’t have to find them unanimously. Many states, and the federal government, explain these different burdens to the jury; but the courts in Gleason and Carr did not. Since those decisions, Kansas has changed the “pattern instructions” used by its judges; the Kansas Supreme Court ordered the two courts to go back and resentence the defendants using these instructions, because, it said, the instructions used might convince jurors that the defendant also had a “reasonable doubt” burden. Soon after argument began in Kansas v. Gleason on October 7, Scalia used his best tell-frogface-to-pass-the-salt voice to ask Kansas Attorney General Derek Schmidt whether “Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it.” For that reason, he suggested (“I’m just speculating of course”) that the Kansas Supreme Court had actually lied by claiming that that the Eighth Amendment, rather than their own squishy liberal prejudices, required granting the defendants a new sentencing. Alito seemed to agree: “[P]resumably, the Kansas Supreme Court understood that it had the capability of basing its decision on Kansas law. But if it did that, it would have to take responsibility for the decisions in these cases, which involve some of the most horrendous murders that I have seen in my 10 years here.” The Kansas court, however, “didn't take responsibility for that. It said ‘it's the Eighth Amendment, and we have to apply the federal Constitution.’” On Tuesday, the Court will hear Hurst v. Florida, yet another challenge to Florida’s enthusiasm for the injection gurney. Even though the Supreme Court held 13 years ago that “aggravating factors” must be found by a jury, Florida’s Supreme Court validated a state system in which the judge, not the jury, finds the “aggravating factors”—and the jury’s verdict is, in fact, “merely advisory.” The “advisory” verdict also—unlike in the majority of states—need not be unanimous. The scandal of Batson is that courts tolerate the flimsiest explanations for seemingly clear use of race by prosecutors. After Hurst, the Court in November will hear Foster v. Chatman, which tests the Court’s requirement that all juries—in capital and non-capital cases—be selected without racial discrimination. That rule was announced three decades ago, in a case called Batson v. Kentucky. Under Batson, no party can use race as a basis for “peremptory strikes”—decisions by one side or other to exclude a potential juror. Ordinarily a lawyer need give no reason for a “peremptory”—it can be based on a gut feeling or a dislike of the social characteristics of a member of the pool. If the other party points to a racial pattern of “peremptories,” however, a court is supposed to hold a hearing at which the side using the strikes must explain a “neutral” reason for the strike. The scandal of Batson is that courts tolerate the flimsiest explanations for seemingly clear use of race by prosecutors. A minority juror may be too old, too young, over- or under-educated, a former crime victim, or a former criminal defendant; almost anything will do. Foster, however, seems to involve as smoky a gun as will ever be found. Tyrone Foster, an African American, was convicted in 1987 of capital murder for killing Queen Madge White, a white 79-year-old, as part of a burglary in Rome, Georgia. The prosecution had used its strikes to eliminate all four black potential jurors; when challenged, the state’s lawyers offered neutral explanations, and a Georgia trial court accepted them. In closing, the prosecution argued that the jury should order Foster put to death in order to “deter other people out there in the projects.” Seventeen years later, Foster’s lawyers won the right to inspect the prosecution’s notes—and what they found indicated that the “neutral” explanations were a sham. The word BLACK on each black juror’s form was circled; they were coded “B1,” “B2,” etc., and highlighted in green. One investigator wrote on the forms that “[i]f it comes down to having to pick one of the black jurors, Ms. Garrett, might be okay.” In 2013, a Georgia trial court rejected the Batson claim. “[T]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination,” wrote the (elected) judge. That result shocks the conscience; true, the prosecution did not write on the forms “MAKE SURE TO EXCLUDE THESE JURORS BECAUSE THEY ARE B-L-A-C-K AND LET’S NOT WORRY ABOUT VIOLATING B-A-T-S-O-N,” but the notes show everything short of that. Whatever the justices decide, the “neutral” explanations in Foster seem a bit like assurances from Oklahoma; desperate attempts to shore up an institution that is in collision with what Chief Justice Earl Warren once called “the evolving standards of decency that mark the progress of a maturing society.” Any criminal penalty that can’t be administered without the lies and incompetence that mark capital punishment today seems to me, well, cruel and unusual. * Continue Reading * Jump to Comments * About the Author * * * * * * * * Latest Video [thumb_wide_300.jpg?1452804329] How Do We Make Rules for Self-Driving Cars? A look inside Google X’s race to engineer the safest driver on the road * Nicolas Pollock * Jan 14, 2016 * Latest Slideshow [thumb_wide_300.jpg?1447874076] Peter Garritano In Photos: Inside the Internet Photographs of what “the cloud” actually looks like * Emily Anne Epstein * Jan 5, 2016 * About the Author * [headshot.jpg] Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court. Most Popular Presented by * [javascript] Chris Keane / Reuters Donald Trump's Finest Moment + Yoni Appelbaum The Republican frontrunner offered a stirring defense of New York, breaking from his usual form on a night when so much else seemed all too familiar. 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