The death penalty in the United States is a constant source of controversy. Efforts to abolish capital punishment in America date back to over 100 years and continue to expand in present-day. In addition, all 50 states vary in their retention and application of the death penalty. Currently, the death penalty is legal in 32 states, the distribution of the actual executions however, is quite wide. The five states with the highest number of executions performed account for approximately 65% of the total executions in the country since the US Supreme Court re-affirmed and reinstated the death penalty in 1976. The state of Texas alone is responsible for almost 37% of the country’s executions. In contrast, 14 states have executed five or fewer prisoners since 1976.
II. History Since the earliest societies, capital punishment has been used as a method of crime deterrence.
Historical archives show that the even the most primitives tribes utilized methods of punishing culprits that often included taking their lives in order to pay for the crimes they committed. Murder most often warranted this ultimate form of punishment.
As tribal societies formed social classes and man-kind developed its own self-governed republics, capital punishment became a usual response to a variety of crimes, such as sexual assault, military offenses and treason. Written rules were created to alert the people of the penalties that could face them should they participate in any wrongdoing. One of the earliest written documents observed that supported the death penalty was the Code of Hammurabi, written on stone tablets around 1760 BC. The code contained approximately 282 laws that were proposed by the Babylonian King Hammurabi and included the theory of an “eye for an eye.” Several other ancient documents were also supportive of the death penalty; these included the Christian Old Testament, the Jewish Torah, and the writing of Athenian legislator Draco, who was a proponent of capital punishment for a large number of offenses in Ancient Greece.
The earliest forms of the death penalty were intended to be painful, slow and torturous. Some ancient cultures employed methods of crucifixion, stoning, and being burned at the stake among others. Later civilizations found these methods to be cruel, unusual forms of punishment and thus opted for more humane practices. During the 18th and 19th centuries, legislators found less painful and faster approaches to execution, which included beheading by the guillotine and hanging. These practices were typically large public spectacles and were not any less bloody or violent but death was almost always instantaneous, so they were perceived as being more compassionate.
III. In the United States
Capital Punishment in the United States dates back to the founding of the original colonies, and was used for a variety of crimes such as burglary, treason, counterfeiting and murder. During the American Revolution, legislators in the United States began to examine and revise policies behind the death penalty. In 1971, the constitution was amended to prohibit any form of punishment deemed “cruel and unusual.” Although the amendment did not intend to ban capital punishment, it did start a movement towards performing more human executions. Currently, 32 states in the US allow the death penalty, although the greatest number of death row inmates and actual executions occur in only a few of those. California is the state with the largest death row population of 625 inmates, but they do not perform executions frequently. In fact, in the last three years, only two people have been put to death. In contrast is Texas, while also having a large number of offenders on death row (453), Texas follows through with executions, executing more people each year than any other state. Their executions constitute 46% of all executions performed in the year 2002.
Eligibility for the death penalty and determining what criteria qualifies a crime for the death penalty varies by jurisdictions. No” automatic” sentence exists for any crime. The death penalty is assigned to crimes that contain aggravating factors, and are “monstrous or horrific” in nature. Examples of aggravating factors include intentional, premeditated murder, and murder that results from the commission of certain violent felonies such as robbery, rape, kidnapping, burglary and arson, even if the death results as an accident. These vary by state and in some the list of aggravating factors is lengthy and not well defined which can mean a lot of crimes can potentially be classified as “capital.” Prosecutors of the jurisdiction in which the crime has occurred make the decision of whether to seek the death penalty in each case. Critics allege that prosecutors are influenced to consider factors when seeking the death penalty that should not be relevant, such as the race of the victim and offender, for example. Community and public outrage as well as media attention can also impact the process of seeking the death penalty. (Marcus, 2007)
Trials for death penalty cases differ from other trials in that they are more intensive, expensive and much more complicated, after all, the outcome could end or spare someone’s life. They attract wide-spread and sometimes sensational media attention that can become distracting and unfavorable for the defendant as well as the other parties involved in the case. Political and public pressure is placed on the judge and prosecutors to secure a conviction and death sentence. Defense lawyers too face a great deal of pressure to save their client’s lives. Another aspect of capital case trials that sets them apart from regular cases is the selection of the jury. Potential jurors in capital cases must undergo a somewhat extensive process before being qualified to participate. The most important criteria they must meet however revolve around the individuals personal views on the death penalty. Qualified jurors must be in support of capital punishment and willing to impose it, those that cannot abide by that requirement are excused from jury service.
Capital trials are separated into two sections, in the first only evidence and defenses are heard, this is referred to as the guilt phase. At the close of the guilt phase while the jury does not yet deliberate about a sentence, they do however decide to convict or acquit the defendant. Should the defendant be convicted, the penalty phase of the trial begins, during this phase the jury hears arguments and evidence concerning sentencing options. At this time, prosecutors will argue for a death sentence and must present aggravating factors associated with the crime. They will also attempt to stir the jury away from feelings of sympathy for the defendant, by stating past criminal charges or lack of remorse about the crime. In contrast, defense lawyers will argue against the death penalty, trying to persuade the jury to sentence their clients to life imprisonment instead.
To do this, defense attorneys introduce mitigating factors such as the defendant’s age, absence of a criminal record, relationships with family members, and character. In some cases, they may use evidence that could facilitate understanding of why the defendant committed the crime, some examples being mental illness, abuse or neglect as a child, etc. Sometimes family and friends of the defendant can testify for them, this is also permitted for families of the victim, which often take this time to speak about their loss and state their preference for a life or death sentence. After all evidence has been presented and following any testimonies, the jury is excused to deliberate once more, this time deciding on a sentence.
The idea of “swift justice” is thought to be lost in capital punishment cases. Usually, it takes several years from the time a person is convicted of a crime to the actual execution. One of the aspects of death penalty cases that make them so extensive is the appeals process. Generally, following conviction, a defendant has the right to an automatic or “direct” appeal to the state appellate court. Courts are required by law to look at these cases. Evidence presented in a direct appeal is very limited, typically dealing with whether objections were sustained or overruled correctly. Within a year of the direct appeal, death row inmates must file again in order to secure their rights, failure to do so would mean the defendant has chosen to waive their appeals. Incompetency on the part of an attorney or lack of one has resulted in many death row defendants missing appeal deadlines, while some may not even be aware of this procedural right. There is no second opportunity to file for an appeal once the deadline has been missed, regardless of the circumstances.
The next step in the appeals process is referred to as state post-conviction. The defendant will use this appeal to present any state constitutional claims and any evidence to challenge their conviction. Some of the more prevalent claims made in post-conviction appeals include improper and unprofessional conduct on behalf of the police or prosecution, race discrimination, mishandling or inconsideration of pertinent evidence and inadequate representation on behalf of the defense attorney. Evidence that has been newly discovered or was not available at the time of trial is admissible during this phase of the appeals process. Post-conviction relief is not easy to obtain, an in-depth investigation of the case and all evidence from the trial must be conducted by the defense lawyers. This can be expensive, time consuming and for the many inexperienced and poorly-resourced lawyers that represent these types of inmates, it becomes a challenging task.
The inability of the defense counsel to provide sufficient mitigating factors and thoroughly investigate a case is the most prevailing failure observed in capital punishment cases. While it is true that many defendants receive inadequate representation, it is very difficult to obtain relief based on ineffective legal assistance. If the court determines that the defendant would have been convicted and sentenced to death regardless of poor legal representation, then there is no entitlement to relief. Should a death row inmate be denied relief in post-state conviction, he can proceed with a final appeal which is now handled by Federal courts, this is referred to as federal habeas. When a defendant has exhausted all appeals, the last option is to ask for clemency from the governor or President, depending on if it is a state or federal death penalty case. Clemency has been known to only be granted in extraordinary cases and is becoming more and more uncommon. (capitalpunishmentincontext.org)
VII. Methods 1. Lethal Injection
Today, all of the states that have the death penalty employ the lethal-injection. Oklahoma became the first state to adopt this method of execution in 1977, with the first person being executed by lethal injection being Charles Brooks 5 years later in 1977. (deathpenaltyinfo.org) In preparation, the inmate to be executed is permitted a shower, a change of clothing and a final meal of their choice. At the time of the execution, the prisoner is taken to the execution room and where two IV tubes are inserted into his arms, following, a harmless saline solution is started immediately. Then, when the prison warden gives signal, a curtain is raised exposing the inmate to witnesses in an adjoining room.
At this time the prison is allowed his final statement. At the conclusion of the inmate’s last words, the execution begins with the drugs being administered as follows: Sodium thiopental: This drug, also known as Pentathol is a barbiturate used as a surgical anesthetic. In surgery, a dose of up to 150mg is used. In execution, up to 5,000 mg are used. This is a lethal dose. From this point on if the prisoner is still alive, he should feel nothing. Pancuronium bromide: Also known as Pavulon, this is a muscle relaxant given in a strong enough dose to paralyse the diaphragm and lungs. This drug takes effect in 1-3 minutes. A normal medical dose is 40 – 100mcg per kilogram; the dose delivered in an execution is up to 100mg.
Potassium chloride: This is a toxic agent which induces cardiac arrest. Not all states use this as the first two drugs are sufficient to bring about death.
Saline solution is used to flush the IV between each dose. A minute or two after the final dose is administered, a doctor declares the prisoner dead. The body is then sent to the coroner for verification, an autopsy is sometimes performed. Finally, the body is released to family for burial. 2. Electric Chair
The electric chair was an invention by Harold P. Brown who was an employee of Thomas Edison, the sole purpose was to investigate the uses of electricity in executions. The chair was first adopted in 1889 and the first execution took place in 1890 in New York. In execution by electric chair, the prisoner is strapped to the chair with metal straps and a wet sponge is placed in his head to aid conductivity. Electrodes are placed on the head and legs to create a closed circuit. Depending on the physical state of the prisoner, two currents of varying level and duration are applied. This is generally 2,000 volts for 15 seconds for the first current to cause unconsciousness and to stop the heart.
The second current is usually lowered to 8 amps. The current will normally cause severe damage to internal organs and the body can heat up to 138 °F While unconsciousness should occur within the first second or two, there have been occasions where it has taken much longer, leading people to highly oppose this method of execution. Clean up post-execution is unpleasant, skin has been found melted on the electrodes and the person can lose control of bodily functions, burning of the skin occurs often. 3. Firing Squad
Many consider the firing squad to be the most honorable method of execution. The carrying out of firing squad executions can vary, but generally the inmate is blindfolded and restrained. A group of men then fire a single bullet into the heart of the condemned. In some cases, one of the shooters is given a blank in order to feel less guilt afterwards. However, none of the shooters know who holds the blank, or if any of them do. Currently in the US, only two states are permitted performing of executions using this method: Idaho and Oklahoma.
4. Gas Chamber
The gas chamber as a method of execution has been used in a considerable number of cases. It was first made popular from its use in German prison camps during World War II where it was used to execute millions in one of the worst genocide cases of the 20th century. Although five states in the US still allow its use, death row inmates in all of those states are given the option to choose the lethal injection instead. In gas chamber executions, the executioner prepares the chamber by placing potassium cyanide pellets into a small compartment beneath the execution chair. The prisoner is then brought in and secured to the chair.
The chamber is sealed and the executioner pours a quantity of concentrated sulfuric acid (H2SO4) through a tube which leads to a holding compartment in the chair. The curtains are drawn back for witnesses to see the execution and the prisoner is asked to make his last statement. After the last statement, a level is thrown by the executioner and the acid mixes with the cyanide pellets generating lethal hydrogen cyanide (HCN) gas. The prisoners will generally have been told to take deep breaths in order to speed up unconsciousness, but in most cases they hold their breath. Death from hydrogen cyanide is painful and unpleasant. (aclu.org); (clarkprosecutor.org)
In American society, deterrence has always served as a justification for support of the death penalty. Numerous studies conducted have failed to indicate a conclusive deterrence effect. For ex, if the death penalty was truly a crime deterrent, then the states that do not have the death penalty would be expected to have higher murder rates. However, it is just the opposite, states that do not employ the death penalty show consistently lower murder rates. In addition, the United States significantly higher murder rates than European countries who do not allow the death penalty. (Fagan)
Overpowering evidence leads to the conclusion that the death penalty system in the United States is broken and undeniably flawed. Incompetency in representation, racial prejudice, inadequate funding and human mistake all contribute to a dark reality of the death penalty that is wrongful convictions and inequity. In a system teeming with error, the risk of executing the innocent is authentic. Reform in our death penalty process and procedures is necessary and urgent. It is our provocation to work towards a systematic change that will guarantee fairness and equal access to justice, due process for all persons facing the death penalty.
2. https://www.aclu.org/capital-punishment/execution-methods 3. Paul Marcus, 2007. William & Mary Law School. Capital Punishment in the United States, and Beyond.
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1068&context=facpubs 4. http://www.capitalpunishmentincontext.org/resources/dpappealsprocess 5. Jeffrey A. Fagan. Columbia Law School. Capital Punishment: Deterrence Effects and Capital Costs. http://www.law.columbia.edu/law_school/communications/reports/summer06/capitalpunish