Barbaric Punishment
Capital Punishment, the Death Penalty and American Executions


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Barbaric Punishment

By Xavier Yanez.

During the past three decades the issue of capital punishment has been very controversial inside the United States. During 1972 the U.S. Supreme Court decided in Furman v. Georgia that the death penalty was unconstitutional because it was a form of "cruel and unusual punishment." However, this decision did not last long; in July 1975 the Supreme Court ruled that capital punishment did not violate any parts of the Constitution. Executions as they had before 1972 resumed again. Since then 180 prisoners have been executed. The United States Supreme Court should abolish the death penalty because it is a form of "cruel and unusual punishment."

Under our current U.S. Constitution which has been around for over 200 years, prisoners of the government cannot be subjected to any kind of punishment which is deemed cruel and unusual. However all the forms of capital punishment that the government uses are questionable as to whether or not they are legal according to the Constitution. Forms of capital punishment that are still used in the United States include hanging, firing squad, electrocution, gas chamber, and lethal injection. With hangings a rope is attached to a persons neck proceeded with them being dropped from a certain height with the other end of the rope attached to something higher than them. The result is either strangulation which can take a while or complete decapitation. With the firing squad option a prisoner is tied to a chair and blinded. After this a firing squad composed most of the time of five individuals fires gun shots at a target attached to the prisoners chest (ACLU).

The most widely used form of execution has been electrocution. With this method of electrocution a prison is strapped to a chair along with electrodes attached all over his body. The electrocutioner then proceeds to "throw the switch" which results in huge amounts of voltage flowing through the prisoner. During this period of time the prisoner burns and shakes violently from this overdose of electricity; when it is over smoke is often seen coming from the prisoner's head.

Officials often defend this punishment as not being cruel and unusual, but how can they defend this opinion in the case of John Evans who was executed by electrocution in 1983? According to witnesses at the scene Mr. Evans was given three charges of electrocution over a period of fourteen minutes. After the first and second charges Mr. Evans was still conscious and smoke was coming from all over his body as a result of his flesh burning. An official there even tried to stop the execution on account of it being cruel and unusual punishment, but was unsuccessful. Witnesses later called the whole incident a "barbaric ritual."

Another method of execution is the gas chamber; with this procedure a prisoner is put in a closed chamber and forced to inhale lethal fumes from a sulfuric acid and cyanide chemical reaction. According to a dissent by U.S. Supreme Court justice John Paul Stevens concerning the 1992 execution of Don Harding, there did not seem to be any civilized aspect of the gas chamber method of executing prisoners. According to the report at first Harding tried to hold his breath inside the chamber, but was unsuccessful; when he finally inhaled some of the fumes his body started convulsing and the muscles and veins under his skin were twitching in a "wavelike motion." This execution took over eight minutes to complete and Mr. Harding was writhing in pain for most of that time. According to officials at the scene Harding did not fall unconscious until right before his death (Bedau).

The latest method of executing prisoners on death roll has been lethal injection. It is deemed not barbaric by many people because of the fact that it does not cause struggles or maim the body like hangings, firing squads, electrocutions, or the gas chambers. Nonetheless, this method of executing is still barbaric. At the 1988 execution of Raymond Landry officials there had to repeatedly puncture him because he had very small veins. In addition to this cruel treatment, during the procedure a tube attached to the needle leaked and the harsh chemicals used to kill Landry were sprayed in the direction of witnesses. Beside this case there have been cases where the victims was not given a strong enough dosage and writhed in pain for a long period of time while conscious. According to the many police officers or chiefs who have to witness the death penalty they say is should be abolished because they are sick of having to watch it and because they feel that it does not deter crime(Associated Press).

According to advocates of the death penalty the main reason some of them take their position is because they feel that capital punishment deters crime. They feel that the murderers in this world will not kill if they know this. My answer to this is that the death penalty does not deter. People who are in the "business" of killing take measures to make sure they do not get caught; they skillfully concoct plans to make sure they are not suspected of criminal activity. A person who gets caught for killing another individual is usually someone who did not plan to murder in the first place. These individuals fall into the "crimes of passion" category. Crimes of passion are defined as unlawful acts of an individual which are unplanned and erupt as a result of a fit or rage or anger. These illegal actions usually stem from drunkenness or a short term loss of logic thinking which can be attributed to anger. The death penalty it would seem would logically deter crime, but the problem is that most murderers are unplanned and are not a result of logic.

There is other evidence which refutes the effectiveness of capital punishment as a deterrent. During the 1930's the federal government, under the direction of Jack Gibbs, investigated the effectiveness of the death penalty in deterring serious crime. The results of Gibbs investigation is that capital punishment did not deter. However, during the 1970's Prof. Isaac Ehrlich found out through his research that capital punishment did deter (Van den Haag, 210). Many advocates of capital punishment base their opinions on his results, but what many of them do not know is that no one else besides Ehrlich has come up with the same results (Blumstein, 358). The conclusion that researches have drawn up during the past decade is that the death penalty does not significantly have an effect on serious crime one way or the other.

According to Bedau, the media in some sense makes it seem like Americans overwhelmingly support the death penalty. However, if Americans had to choose between the death penalty and a life sentence without parole and the convicted had to work and not just sit inside a prison cell, then they would not support the death penalty. According to a Field Institute survey, only 26 percent of the American population would support the death penalty if convicted murderers were forced into life imprisonment with restitution.

The death penalty should be abolished because it is a barbaric form of punishment which should not be allowed in the United States which is supposedly one of the most civilized nations in the world. It should also be abolished not only because it is barbaric, but also because it defies the U.S. Constitution which most American hold sacred. In addition to this, the death penalty even if it remains legal in the U.S. would not obtain its goal. Because the death penalty fails its main objective and because of the reason stated above it should be abolished.


Works Cited:

  • American Civil Liberties Union. "Briefing Paper Number 8." [See below]
  • Associated Press. "PD Chiefs: Death Penalty Fails".
  • Bedau, Hugo Adam. "The Case Against The Death Penalty".
  • Blumstein, Alfred and Jacqueline Cohen. Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates. National Academy of Sciences: Washington, D.C., 1978.
  • Van den Haag, Ernest. Punishing Criminals: Concerning a Very Old and Painful Question. Basic Books, Inc.: New York, 1975.


    The Death Penalty

    Pain. Anger. Frustration. Hatred. These feeble words do not describe the anguish felt by the families of murder victims. Ted Bundy was responsible for the deaths of more than 50 young women across the United States.(Lamar 34) Bundy was finally sentenced to death by the state of Florida in 1978 for the kidnapping and brutal murder of a 12 year old girl and the deaths of 2 Florida State sorority sisters.(Lamar 34) As if the loss of a loved one is not enough for a family to contend with, Bundy remained on death row for nearly 10 years. Three stays of execution and endless appeals kept Bundy alive for almost a decade, when his victims lives were untimely and viciously taken from them.(Lamar 34) If a sentence of death is handed down, then it should be enforced, not as a question of morality, but simply as an act of justice.

    The moral issue of whether the death penalty is right or wrong and its constitutionality, is beyond the scope of this paper. The death penalty already exists in 36 states, and given its existence it should be enforced. The problem that arises within the criminal justice system as it is currently written in the law books becomes the focus of this discussion. Since the United States Supreme Court reinstated the death penalty in 1976, 36 States have legislated capital punishment statutes.(Capital Punishment 1992) All but 13 states and the District of Columbia have death as a sentencing option, including Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.(Norman 1) Since capital punishment is already in existence, the problem is that it is not enforced. This lack of enforcement translates into inefficient functioning of the criminal justice system.

    Two reasons why the death penalty should be enforced are saved time, by the court system through limited appeals, and saved money, by taxpayers due to reduced court and imprisonment fees. Much of the court's time could be saved if death row inmates were limited to a set number of appeals in a reasonable amount of time. Facilitating numerous appeals results in many unforeseen costs. In 1992, expenditures on criminal justice activities by all federal, state, and local governments combined reached $299 per capita.(BJS) Ted Bundy's 10 year stay on death row, involving numerous appeals and excessive imprisonment fees, eventually cost the Florida state taxpayers more than $6 million dollars.(Lamar 34) These expenses are unnecessary and unjustifiable and could be alleviated by limiting appeals. In addition to this, public defense expenditures reached a startling $16.4 billion in 1990, which breaks down to about $7 per capita for each case tried in public defense costs alone.(Capital Punishment 1992) Although these figures are for total spending on public defense, it is easy to deduce that by limiting the number of appeals for death row inmates, these figures could be significantly reduced.

    An automatic appeal has been instituted in 35 of the 36 death-penalty states in an effort to reduce the amount of time spent by the court's appeal system reevaluating capital cases.(Capital Punishment 1992) Mandatory appeals shorten the length of time spent on death row and therefore could not be considered cruel and unusual punishment, although some opponents of the death penalty argue that appeals themselves are a form of torture as they keep inmates on death row for many years. This argument is contradictory because they also assert that there is a possibility of executing an innocent person. With no appeal, the chance of freeing a falsely convicted felon is also decreased. They cannot make this argument because arguing against mandatory appeals in that they bog down the system defeats the purpose of their argument against killing an innocent person. There must be a balance between these concepts two and to argue one side or the other is illogical. Though this logic may seem twisted, mandatory appeals expedite the execution process, which is currently an average of 9 years and 6 months on death row before the sentence is carried out.(Capital Punishment 1992)

    Use of the death penalty as intended by law could actually reduce the number of violent murders by eliminating some of the repeat offenders thus being used as a system of justice, not just a method of deterrence. Opponents of the death penalty will argue that although it is said to exist as a crime deterrent, in reality it has no effect on crime at all. Modern supporters of capital punishment no longer view the death penalty as a deterrent, but as a just punishment for the crime, a shift from the attitudes of past generations.(Norman 1) Previously the deterrence argument put the burden of proof on death penalty advocates, but recently this argument has become less effective due to what one source said, "...in recent years the appeal of deterrence has been supplanted by a frank desire for what large majorities see as just vengeance." (Dionne 178-180)

    More timely enforcement of the death penalty would help to reduce the crime problem by instilling a sense of respect for the law in that sentences are more than words on a page. Crimes carry consequences which should be understood. This change in the ideology also would effect reduced costs. "One of the many problems with the death penalty is that it is anything but swift and sure..."(PD Chiefs: Death Penalty Fails) As in the case of Ted Bundy, the system fell down by allowing him to remain on death row for 10 years after murdering more than 50 women. The justice system cannot allow oversights of this type to occur. It is the responsibility of all Americans to take action to reform the current statutes regulating the death penalty and its execution.


    Works Cited

  • 1. BJS Justice Statistics Clearinghouse. September 1992.
  • 2. "Capital Punishment 1992." 14 March 1992.
  • 3. Cooney, Peter, "High court stays execution of death row inmate." 3 March 1994.
  • 4. Dionne, E.J., Jr., "Capital Punishment Gaining Favor As Public Seeks Retribution." Corrections Today. August 1990: 178-182.
  • 5. Lamar, Jacob V., "I Deserve Punishment." Time. February 1989: 34.
  • 6. Norman, Jane, "Iowa remains on shrinking list of states without death penalty." The Des Moines Register. 4 September 1994: 1.
  • 7. "PD Cheifs: Death Penalty Fails." 23 February 1995.


    ACLU Briefing Paper Number 8 The Death Penalty

    Since our nation's founding, the government -- colonial, federal and state -- has punished murder and, until recent years, rape with the ultimate sanction: death.

    More than 13,000 people have been legally executed since colonial times, most of them in the early 20th century. By the 1930s, as many as 150 people were executed each year. However, public outrage and legal challenges caused the practice to wane. By 1967, capital punishment had virtually halted in the United States, pending the outcome of several court challenges.

    In 1972, in _Furman v. Georgia_, the Supreme Court invalidated hundreds of scheduled executions, declaring that then existing state laws were applied in an "arbitrary and capricious" manner and, thus, violated the Eighth Amendment's prohibition against cruel and unusual punishment, and the Fourteenth Amendment's guarantees of equal protection of the laws and due process. But in 1976, in _Gregg v. Georgia_, the Court resuscitated the death penalty: It ruled that the penalty "does not invariably violate the Constitution" if administered in a manner designed to guard against arbitrariness and discrimination. Several states promptly passed or reenacted capital punishment laws.

    Thirty-seven states now have laws authorizing the death penalty, as does the military. A dozen states in the Middle West and Northeast have abolished capital punishment, two in the last century (Michigan in 1847, Minnesota in 1853). Alaska and Hawaii have never had the death penalty. Most executions have taken place in the states of the Deep South.

    More than 2,000 people are on "death row" today. Virtually all are poor, a significant number are mentally retarded or otherwise mentally disabled, more than 40 percent are African American, and a disproportionate number are Native American, Latino, or Asian.

    The ACLU believes that, in all circumstances the death penalty is unconstitutional under the Eighth Amendment, and that its discriminatory application violates the Fourteenth Amendment.

    Here are the ACLU's answers to some questions frequently raised by the public about capital punishment.

    ** Doesn't the death penalty deter crime, especially murder?

    No, there is no credible evidence that the death penalty deters crime. States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment, or instituted it, show no significant changes in either crime or murder rates.

    Claims that each execution deters a certain number of murders have been discredited by social science research. The death penalty has no deterrent effect on most murders because people commit murders largely in the heat of passion and/or under the influence of alcohol or drugs, giving little thought to the possible consequences of their acts. The few murderers who plan their crimes beforehand--for example, professional executioners--intend and expect to avoid punishment altogether by not getting caught. Some self-destructive individuals may even hope they will be caught and executed.

    Death penalty laws falsely convince the public that government has taken effective measures to combat crime and homicide. In reality, such laws do nothing to protect us or our communities from the acts of dangerous criminals.

    ** Don't murderers _deserve_ to die?

    Certainly, in general, the punishment should fit the crime. But in civilized society, we reject the "eye for an eye" principle of literally doing to criminals what they do to their victims

    The penalty for rape cannot be rape, or for arson, the burning down of the arsonist's house. We should not, therefore, punish the murderer with death. When the government metes out vengeance disguised as justice, it becomes complicit with killers in devaluing human life.

    ** If execution is unacceptable, what is the alternative?

    _Incapacitation_. Convicted murderers can be sentenced to lengthy prison terms, including life, as they are in countries and states that have abolished the death penalty. Most state laws allow life sentences for murder that severely limit or eliminate the possibility of parole. At least ten states have sentences without the possibility of parole for 20, 25, 30 or 40 years, and at least 18 states have life sentences with no possibility of parole.

    A recent U.S. Justice Department study of public attitudes about crime and punishment found that a majority of Americans support alternatives to capital punishment: When people were presented the facts about several crimes for which death was a possible punishment, a majority chose lengthy prison sentences as alternatives to the death penalty.

    ** Isn't the death penalty necessary as just retribution for victims' families?

    All of us would feel extreme anger and a desire for revenge if we lost a loved one to homicide; likewise, if the crime was rape or a brutal assault. However, satisfying the needs of victims cannot be what determines a just response by society to such crimes. Moreover, even within the same family, some relatives of murder victims approve of the death penalty, while others are against it. What the families of murder victims really need is financial and emotional support to help them recover from their loss and resume their lives.

    ** Have strict procedures eliminated discrimination in death sentencing?

    No. A 1990 Government Accounting Office (GAO) report summarizing several capital punishment studies confirmed "a consistent pattern of evidence indicating racial disparities in charging, sentencing and the imposition of the death penalty...." Eighty-two percent of the studies the GAO reviewed revealed that "those who murdered whites were more likely to be sentenced to death than those who murdered blacks." In addition, the GAO uncovered evidence (though less consistent) that a convict's race, as well as the race of the victim, also influences imposition of the death penalty.

    A 1987 study of death sentencing in New Jersey found that prosecutors sought the death penalty in 50 percent of the cases involving a black defendant and a white victim, but in only 28 percent of the cases involving black defendants and black victims. A 1985 study found that, in California, six percent of those convicted of killing whites got the death penalty compared to three percent of those convicted of killing blacks. In Georgia, a landmark 1986 study found that, overall, those convicted of killing whites were four times more likely to be sentenced to death than convicted killers of nonwhites.

    African Americans are approximately 12 percent of the U.S. population yet of the 3,859 persons executed for a range of crimes since 1930, more than 50 percent have been black. Other minorities are also death-sentenced disproportionate to their numbers in the population. This is not primarily because minorities commit more murders, but because they are more often sentenced to death when they do.

    Poor people are also far more likely to be death-sentenced than those who can afford the high costs of private investigators, psychiatrists and expert criminal lawyers. Indeed, capital punishment is "a privilege of the poor," said Clinton Duffy, former warden at California's San Quentin Prison. Some observers have pointed out that the term "capital punishment" is ironic because "only those without capital get the punishment."

    ** Maybe it used to happen that innocent people were mistakenly executed, but hasn't that possibility been eliminated?

    No. A study published in the Stanford Law Review documents 350 capital convictions in this century, in which it was later proven that the convict had not committed the crime. Of those, 25 convicts were executed while others spent decades of their lives in prison. Fifty-five of the 350 cases took place in the 1970s, and another 20 of them between 1980 and 1985.

    Our criminal justice system cannot be made fail safe because it is run by human beings, who are fallible. Execution of innocent persons is bound to occur.

    ** Only the worst criminals get sentenced to death, right?

    Wrong. Although it is commonly thought that the death penalty is reserved for those who commit the most heinous crimes, in reality only a small percentage of death-sentenced inmates were convicted of unusually vicious crimes. The vast majority of individuals facing execution were convicted of crimes that are indistinguishable from crimes committed by others who are serving prison sentences, crimes such as murder committed in the course of an armed robbery. The only distinguishing factors seem to be race and poverty.

    Who gets the death penalty is largely determined, not by the severity of the crime, but by: the race, sex and economic class of the criminal and victim geography--some states have the death penalty, others do not; and vagaries in the legal process. The death penalty is like a lottery, in which fairness always loses.

    Capital punishment * does not deter crime * is discriminatory and arbitrary * assures the execution of innocent people * has no place in civilized society

    ** Does the law permit execution of juveniles and people who are mentally retarded or mentally ill?

    Yes. In 1989, the Supreme Court upheld as constitutional the execution of 16 and 17 year-old (though not 15 year-old) juvenile murderers. The Court likewise upheld the constitutionality of executing mentally retarded people. Although juries are permitted to consider retardation as a mitigating factor, many people on death row today are mentally retarded. Regarding people who are mentally ill, the Court has held that the Eighth Amendment prohibits execution only if the illness prevents the person from comprehending the reasons for the death sentence or its implications.

    ** "Cruel and unusual punishment" -- those are strong words, but aren't executions relatively swift and painless?

    The history of capital punishment is replete with examples of botched executions. But no execution is painless whether botched or not, and all executions are certainly cruel.

    Hanging was the most common form of execution throughout the l9th century and is still practiced in a few states. Problems often attend hanging: If the drop is too short, death comes through gradual strangulation; if too long, the jerk of the rope rips the head off. _Electrocution_ succeeded hanging in the early 20th century. When the switch is thrown, the body jerks, smoke frequently rises from the head, and there is a smell of burning flesh. Science has not determined how long an electrocuted individual retains consciousness, but in May 1990, Florida prisoner Jesse Tafero gurgled, and his head bobbed while ashes fell from it, for four minutes. And in 1983, it took three jolts of electricity and ten minutes to kill an individual in Alabama. The _gas chamber_ was intended to improve on electrocution. The condemned is strapped in a chair and a cyanide pellet is dropped into a container of sulfuric acid under the chair to form lethal gas. The person struggles for air and may turn purple and drool. Unconsciousness may not come for several minutes. The _firing squad_ is still administered in Idaho and Utah. The condemned is strapped in a chair and hooded, and a target is pinned to the chest. Five marksmen, one with blanks, take aim and fire. _Lethal injection_ is the latest technique, first used in Texas in 1982 and now mandated by law in more than a dozen states. Although this method is defended as more humane, efficient and inexpensive than others, one federal judge observed that 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." In Texas, there have been three botched injection executions since 1985. In one, it took 24 minutes to kill an individual, after the tube attached to the needle in his arm leaked and sprayed noxious chemicals toward witnesses. Another, in 1989, caused Stephen McCoy to choke and heave for several minutes before dying because the dosage of lethal drugs was too weak.

    Eyewitness accounts confirm that execution by any of these means is often an excruciatingly painful, and always degrading, process that ends in death.

    * * * * *

    Capital punishment is a barbaric remnant of uncivilized society. It is immoral in principle, and unfair and discriminatory in practice. It assures the execution of some innocent people. As a remedy for crime, it has no purpose and no effect. Capital punishment ought to be abolished now.

    The American Civil Liberties Union
    132 West 43rd Street
    New York, N.Y. 10036
    (212) 944-9800


  • Capital punishment in arts and media

    As a capital punishment forms a more important thematic element. Many of these works are abolitionist in nature, but sometimes capital punishment is used as a metaphor for some other theme, such as sacrifice or mortality.

    The Gospels describe the execution of Jesus Christ at length, and these accounts form the central story of the Christian faith. Depictions of the crucifixion are abundant in Christian artistry.

    Valerius Maximus' story of Damon and Pythias was long a famous example of fidelity. Damon was sentenced to death (the reader does not learn why) and his friend Pythias offered to take his place.

    Dickens' A Tale of Two Cities ends in a climactic execution, and the image of a man going to the guillotine has become synonymous with the novel.

    Victor Hugo's The Last Day of a Condemned Man (Le Dernier Jour d'un condamnÚ) describes the thoughts of a condemned man just before his execution; also notable is its preface, in which Hugo argues at length against capital punishment.

    Ana´s Nin's anthology Little Birds included an erotic depiction of a public execution.

    William Burroughs' novel Naked Lunch also included erotic and surreal depictions of capital punishment. In the obscenity trial against Burroughs, the defense claimed successfully that the novel was a form of anti-death-penalty argument, and therefore had redeeming political value.

    In The Chamber by John Grisham, a young lawyer tries to save his Klansman grandfather from being executed. The novel is noted for presentation of anti-death penalty materials.

    Capital punishment has been the basis of many motion pictures including Dead Man Walking based on the book by Sister Helen Prejean, The Green Mile, and The Life of David Gale.

    In "Justice", a first-season episode of Star Trek: The Next Generation, 15 year old Wesley Crusher inadvertently breaks a trivial law and consequently faces a death sentence.


    Francisco de Goya - Executions of the Third of May 1808 - 1814-15


    Andy Warhol - Yellow Electric Chair - 1967



    Capital punishment in arts and media

    As a capital punishment forms a more important thematic element. Many of these works are abolitionist in nature, but sometimes capital punishment is used as a metaphor for some other theme, such as sacrifice or mortality.

    The Gospels describe the execution of Jesus Christ at length, and these accounts form the central story of the Christian faith. Depictions of the crucifixion are abundant in Christian artistry.

    Valerius Maximus' story of Damon and Pythias was long a famous example of fidelity. Damon was sentenced to death (the reader does not learn why) and his friend Pythias offered to take his place.

    Dickens' A Tale of Two Cities ends in a climactic execution, and the image of a man going to the guillotine has become synonymous with the novel.

    Victor Hugo's The Last Day of a Condemned Man (Le Dernier Jour d'un condamnÚ) describes the thoughts of a condemned man just before his execution; also notable is its preface, in which Hugo argues at length against capital punishment.

    Ana´s Nin's anthology Little Birds included an erotic depiction of a public execution.

    William Burroughs' novel Naked Lunch also included erotic and surreal depictions of capital punishment. In the obscenity trial against Burroughs, the defense claimed successfully that the novel was a form of anti-death-penalty argument, and therefore had redeeming political value.

    In The Chamber by John Grisham, a young lawyer tries to save his Klansman grandfather from being executed. The novel is noted for presentation of anti-death penalty materials.

    Capital punishment has been the basis of many motion pictures including Dead Man Walking based on the book by Sister Helen Prejean, The Green Mile, and The Life of David Gale.

    In "Justice", a first-season episode of Star Trek: The Next Generation, 15 year old Wesley Crusher inadvertently breaks a trivial law and consequently faces a death sentence.


    Francisco de Goya - Executions of the Third of May 1808 - 1814-15


    Andy Warhol - Yellow Electric Chair - 1967


    The Case Against the Death Penalty

    (12/31/1997)

    EIGHT OBJECTIONS TO THE DEATH PENALTY

  • Capital Punishment Is Not A Deterrent To Capital Crimes
  • Capital Punishment Is Unfair
  • Capital Punishment Is Irreversible
  • Capital Punishment Is Barbarous
  • Capital Punishment Is Unjustified Retribution
  • Capital Punishment Costs More Than Incarceration
  • Capital Punishment Is Less Popular Than the Alternatives
  • Internationally, Capital Punishment Is Widely Viewed As Inhumane And Anachronistic

    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 hold that the state should not arrogate unto 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, or 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. Therefore, through litigation, legislation, commutation and by helping to foster a renewed public outcry against this barbarous and brutalizing institution, we strive to prevent executions and seek the abolition of capital punishment.

    INTRODUCTION

    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 capital punishment statutes written to provide guidance to juries in sentencing. These statutes typically 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 have enacted death penalty statutes patterned after those the Court upheld in Gregg. In recent years, Congress has enacted death penalty statutes for peacetime espionage by military personnel and for drug-related murders.

    Executions resumed in 1977, and as of May 1997, over 3,200 men and women were under a death sentence and more than 360 had been executed.

    EIGHT OBJECTIONS TO THE DEATH PENALTY

    Despite the Supreme Court's 1976 ruling in Gregg v. Georgia, 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.
  • Opposing the death penalty does not mean sympathy with convicted murderers. On the contrary, murder demonstrates a lack of respect for human life. For this very reason, 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.
  • 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.
  • 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 changes in death sentencing merely mask the impermissible randomness of a process that results in an execution.
  • The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgement, 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. (1) 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 resources. It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and correctional personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society's control of violent crime.
  • 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. 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.

    Two conclusions are inescapable: Capital punishment does not deter crime, and the death penalty is uncivilized in theory and unfair and inequitable in practice.

    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.

    CAPITAL PUNISHMENT IS NOT A DETERRENT TO MURDER
    Ratio of Executions to the National Murder Rate: 1976-1995
    YEAR 	# OF EXECUTIONS	NATIONAL MURDER RATE
    1976	0	8.8
    1977	1	8.8
    1978 	0	9
    1979	2	9.7
    1980	0	10.2
    1981	1	9.8
    1982	2	9.1
    1983	5	8.3
    1984	21	7.9
    1985	18	7.9
    1986	18	8.6
    1987	25	8.3
    1988	11	8.3
    1989	16	8.7
    1990	23	9.4
    1991	14	9.8
    1992	31	9.3
    1993	38	9.5
    1994	31	9
    1995	56	8
    

    Source: Death Penalty Information Center, Washington, D.C.

    1) 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 have increased to about 300 per year,2 this is still only about one percent of all homicides known to the police.3 Of all those convicted on a charge of criminal homicide, only 3 percent - about 1 in 33 - are eventually sentenced to death.4
  • Mandatory death row 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.

    2) Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

  • 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. Gangland killings, air piracy, drive-by shootings, and kidnapping for ransom are among the graver felonies that continue to be committed because some individuals think they are too clever to get caught.
  • 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. In such cases, violence is inflicted by persons heedless of the consequences to themselves as well as to others. Furthermore, the death penalty is a futile threat for political terrorists 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 is 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.

    3) If, however, severe punishment can deter crime, then long-term 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. During the early 1970's death-penalty states averaged an annual rate of 7.9 criminal homicides per 100,000 population; abolitionist states averaged a rate of 5.1.5
  • Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. In Oklahoma, for example, reintroduction of executions in 1990 may have produced "an abrupt and lasting increase in the level of stranger homicides" in the form of "one additional stranger-homicide incident per month." 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?. "6
  • 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.7
  • 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 l973 and l984, for example, lethal assaults against police were not significantly more, or less, frequent in abolitionist states than in death-penalty states. There is "no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment."8
  • 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 (84%) were killed in death penalty jurisdictions. During the same period about 2% of all assaults on prison staff were committed by inmates in abolition jurisdictions.9 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."10

    Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

    Using methods pioneered by economists, three investigators concluded that capital punishment does deter murderers.11 Subsequently, however, several qualified investigators independently examined these claims - and all rejected them.12 In its thorough report on the effects of criminal sanctions on crime rates, the National Academy of Sciences concluded: "It seems unthinkable to us to base decisions on the use of the death penalty" on such "fragile" and "uncertain" results. "We see too many plausible explanations for [these] findings... other than the theory that capital punishment deters murder."13

    Furthermore, there are clinically 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.14

    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.15 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.16

    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 twelve death row prisoners had a prior homicide conviction.17 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 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 recent study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist "legacy of slavery."18 Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black.19

    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.20

    In recent years, it has been widely believed 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.21 Of the 3,200 prisoners on death row in 1996, 40% were black. This rate is not so obviously unfair if one considers that roughly 50 percent of all those arrested for murder were also black.22 Nevertheless, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

    An exhaustive statistical study of racial discrimination in capital cases in Georgia, for example, showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims."23 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 - an 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.24

    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...."25

    These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime. Furthermore, 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.26 Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

    Both gender and socio-economic class also determine who receives a death sentence and who is executed. During the 1980s and early 1990s, only about one percent of all those on death row were women27 even though women commit about 15 percent of all criminal homicides.28 A third or more of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse.29 Since 1930, only 33 women (12 of them black) have been executed in the United States.30

    Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established.

    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."31 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).

    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."

    Justice John Marshall Harlan, writing for the Court, 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, appears to be tasks which are beyond present human ability." (McGautha v. California, 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. 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."(30)

    Even if these statutes were to succeed in guiding the jury's choice of sentence, a vast reservoir of unfettered discretion remains: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilt y plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, the final decision by the governor on clemency.

    Discretion in the criminal-justice system is unavoidable. The history of capital punishment in American society clearly shows the desire to mitigate the harshness of this penalty by narrowing its scope. Discretion, whether authorized by statutes or by t heir silence, has been the main vehicle to this end. But when discretion is used, as it always has been, to mark for death the poor, the friendless, the uneducated, the members of racial minorities, and the despised, then discretion becomes injustice.

    Thoughtful citizens, who in contemplating capital punishment in the abstract might support it, must condemn it in actual practice.

    INEVITABILITY OF ERROR

    Unlike all other criminal punishments, the death penalty is uniquely irrevocable. Speaking to the French Chamber of Deputies in 1830, years after the excesses of the French Revolution, which he had witnessed, 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."(31) Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would also insist that there is little likelihood of the innocent being executed. Yet a large body of evidence shows that innocent people are often convicted of crimes, including capital crimes and that some of them have been executed.

    Since 1900, in this country, there have been on the average more than four cases per year in which an entirely innocent person was convicted of murder. Scores of these persons 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.(32) Consider this handful of representative cases:

  • In 1975, only a year before the Supreme Court affirmed the constitutionality of capital punishment, two African-American men in Florida, Freddie Pitts and Wilbert Lee, were released from prison after twelve years awaiting execution for the murder of two white men. Their convictions were the result of coerced confessions, erroneous testimony of an alleged eyewitness, and incompetent defense counsel. Though a white man eventually admitted his guilt, a nine-year legal battle was required before the governor would grant Pitts and Lee a pardon.(33) Had their execution not been stayed while the constitutional status of the death penalty was argued in the courts, these two innocent men probably would not be alive today.

  • Just months after Pitts and Lee were released, authorities in New Mexico were forced to admit they had sentenced to death four white men -- motorcyclists from Los Angeles -- who were innocent. The accused offered a documented alibi at their trial, but the prosecution dismissed it as an elaborate ruse. The jury's verdict was based mainly on what was later revealed to be perjured testimony (encouraged by the police) from an alleged eyewitness. Thanks to persistent investigation by newspaper reporters and the confession of the real killer, the error was exposed and the defendants were released after eighteen months on death row.(34)

  • In Georgia in 1975, Earl Charles was convicted of murder and sentenced to death. A surviving victim of the crime erroneously identified Charles as the gunman; her testimony was supported by a jail-house informant who claimed he had heard Charles confess . Incontrovertible alibi evidence, showing that Charles was in Florida at the very time of the crime, eventually established his innocence -- but not until he had spent more than three years under death sentence. His release was owing largely to his mother's unflagging efforts.(35)

  • In 1989, Texas authorities decided not to retry Randall Dale Adams after the appellate court reversed his conviction for murder. Adams had spent more than three years on death row for the murder of a Dallas police officer. He was convicted on the perjured testimony of a 16-year-old youth who was the real killer. Adams's plight was vividly presented in the 1988 docudrama, The Thin Blue Line, which convincingly told the true story of the crime and exposed the errors that resulted in his conviction.(36)

  • Another case in Texas from the 1980s tells an even more sordid story. In 1980 a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 15-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.(37)

    Each of the five stories told above has a reassuring ending: The innocent prisoner is saved from execution and is released. But when prisoners are executed, no legal forum exists in which unanswered questions about their guilt can be resolved. In May 1992, Roger Keith Coleman was executed in Virginia despite widely publicized doubts surrounding his guilt and evidence that pointed to another person as the murderer -- evidence that was never submitted at his trial. Not until late in the appeal process did anyone take seriously the possibility that the state was about to kill an innocent man, and then efforts to delay or nullify his execution failed. Was Coleman really innocent? At the time of his execution, his case was marked with many of the features found in other cases where the defendant was eventually cleared. Were Coleman still in prison, his friends and attorneys would have a strong incentive to resolve these questions. But with Coleman dead, further inquiry into the facts of the crime for which h e was convicted is unlikely.

    Overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, the defendant's previous criminal record, inept defense counsel, seemingly conclusive circumstantial evidence, community pressure for a conviction -- such factors help explain why the judicial system cannot guarantee that justice will never miscarry. And when it does miscarry, volunteers outside the criminal justice system -- newspaper reporters, for example -- and not the police or prosecutors are the ones who rectify the errors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially as there are no strong counterbalancing factors in favor of the death penalty.

    BARBARITY

    The traditional mode of execution, still available in a few states, is hanging. 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.

    Electrocution has been the most widely used form of execution in this country in this century. 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 refastened.... 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."(38) 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."(39)

    An attempt to improve on electrocution was the gas chamber. The prisoner is strapped into a chair, a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form lethal gas. 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 look several more quick gulps of the fumes.

    "At this point Don's body started convulsing violently....His face and body fumed 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 manuals, 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 nearly two dozen states, is lethal injection, first used in Texas in 1982. It is easy to overstate the humaneness and efficacy of this method. There is no way of knowing that it is really painless. 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])

    Nor does the execution 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."(40) 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."(41)

    Indeed, by its veneer of decency and by subtle analogy with life-saving medical practice, death by lethal injection makes killing as punishment more acceptable to the public. Even when it prevents the struggles of the condemned person and avoids maiming the body, it is no different from hanging or shooting as an expression of the absolute power of the state over the helpless individual.

    Most people observing 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."(42) 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.

    In some people, however, executions seem to appeal to strange, aberrant impulses and give an outlet to sadistic urges. Warden Lewis Lawes 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."(43)

    Public executions were common in this country during the 19th century; one of the last was in 1936 in Kentucky, when 20,000 people gathered to watch a young African-American male hanged.(44) 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 these 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 Punishments (1764), asserted: "The death penalty cannot be useful, because of the example of barbarity it gives men." True, and 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."(45)

    RETRIBUTION

    Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim will not bear scrutiny. All punishment by its nature is retributive, not only the death penalty. Whatever legitimacy, therefore, is to be found in punishment as just retribution can in principle be satisfied without recourse to executions.

    It is also obvious that 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 kingpins). 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 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."(46)

    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 deserts--"making the punishment fit the crime."

    If this principle is understood to require that 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 punishment s on offenders. It would require us to betray traitors and kill multiple murderers again and again, punishments 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 murderers.

    If, however, the principle of just deserts is understood to require that the severity of punishments must be proportional to the gravity of the crime, and that murder being the gravest crime deserves the severest punishment, then the principle is no doubt sound. But it does not compel support for the death penalty. What it does require is that crimes other than murder 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 punished with severity appropriate to their culpability and the harm they have caused to the innocent. But severity of punishment has its limits -- imposed both by justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

    Some whose loved one was a murder victim believe that they cannot rest until the murderer is executed. But the feeling is by no means universal. Coretta Scott King has observed, "As one whose husband and mother-in-law have died the victims of murder 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 tacking of a human life. Morality is never upheld by a legalized murder."(47)

    Kerry Kennedy, 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."(48)

    FINANCIAL COSTS

    It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, as though life imprisonment were obviously more expensive than executions. If one takes into account all the relevant costs, the reverse is true. "The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment."(49)

    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 all borne by the taxpayer.

    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.(50)

    In Maryland, a comparison of capital trial costs with and without the death penalty for the years 1979-1984 concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence."(51) In 1988 and 1989 th e 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."(52) Florida, with one of the nation's largest 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.(53)

    The only way to make the death penalty a "better buy" than imprisonment is to weaken due process and curtail appellate review, which are the defendant's (and society's) only protections against the grossest miscarriages of justice. The savings in dollar s would be at the cost of justice: In nearly half of the death-penalty cases given review under federal habeas corpus, the conviction is overturned.(54)

    PUBLIC OPINION

    The media commonly report that the American public overwhelmingly supports the death penalty. More careful analysis of public attitudes, however, reveals that most Americans 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 California, for example, a Field Institute survey showed that in 1990,82 percent approved in principle of the death penalty. But when asked to choose between the death penalty and life imprisonment plus restitution, only a small minority--26 percent--continued to favor executions.(53)

    A comparable change in attitude toward the death penally has been verified in many other states and contradicted in none.

    ABOLITION TRENDS

    The death penalty in the United States needs to be put into international perspective. In 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...."(56)

    Today, 28 European countries have abolished the death penalty either in law or in practice. In Great Britain, it was abolished (except for 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."(57)

    Conspicuous by their indifference to these recommendations are nations generally known for their disregard for the human rights of their citizens: China, Iraq, Iran, South Africa, and the former Soviet Union.(58) Americans ought to be embarrassed to find themselves linked with the governments of such nations in retaining execution as a method of crime control.

    Opposition to the death penalty in the United States is widespread and diverse. Catholic, Jewish, and Protestant religious groups, national organizations representing people of color, and public-interest law groups are among the more than fifty national organizations that constitute the National Coalition to Abolish the Death Penalty.

    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. The unmistakable worldwide trend is toward the complete abolition of capital punishment.

    FURTHER INFORMATION & REFERENCES

    Additional copies of this pamphlet, as well as resource materials such as newsletters, books, legal and legislative information, death-row census, reprinted articles, bibliographies, and referrals to other national and state-wide anti-death penalty groups may be obtained from the Capital Punishment Project, American Civil Liberties Union, 122 Maryland Avenue N.E., Washington, D.C., 20002. Diann Y. Rust-Tierney, Esq., is the project's director. The National Coalition to Abolish the Death Penalty, which coordinates the work of a wide variety of organizations opposed to capital punishment, is located at 1325 G St. N.W. Lower Level B, Washington, D.C., 20005.

    No one volume on the death penalty currently serves as an up-to-date source book on all aspects of the subject. The Death Penalty in America, 3rd ed., ed. Hugo Adam Bedau, Oxford University Press, 1982, is still useful, and a new edition is in preparation. Many other recent volumes contain valuable information and argument, including: Welsh S. White, The Death Penalty in the Nineties, University of Michigan Press,1991; Samuel R. Gross and Robert Mauro, Death and Discrimination, Northeastern University Press, 1989; Michael L. Radelet, ed., Facing the Death Penalty, Temple University Press, 1989; Kenneth C. Haas and James A. Inciardi, eds., Challenging Capital Punishment, Sage Publications, 1988; United States of America -- The Death Penalty, Amnesty International Publications, 1987; Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda, Cambridge University Press, 1986; William J. Bowers, Legal Homicide: Death as Punishment in America, 1864-1982, Northeastern University Press , 1984; Charles L. Black, Jr., Capital Punishment, 2nd ed., W. W. Norton, 1981. The wealth of scholarly literature up through 1988 can be traced with the help of Capital Punishment in America: An Annotated Bibliography, Garland Publishing, 1988, edited by Michael L. Radelet and Margaret Vandiver.

    Four more specialized volumes deserve mention as well: Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases, Northeastern University Press, 1992; Robert M. Bohm, ed., The Death Penalty in America: Current Research. Anderson Publishing Co., 1991: Victor T. Streib, Death Penalty for Juveniles, Indiana University Press, 1987; and Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865 , Oxford University Press, 1989.

    Several scholarly and legal journals have devoted whole issues to various legal, sociological, and historical aspects of the problem of the death penalty, notably Dickinson Law Review, vol. 95, no. 4, Summer 1991; New York University Review of Law & Social Change, vol. 18, nos. 2 and 3, 1990-1991; Albany Law Review, vol. 54, nos. 3/4, 1990; Loyola of Los Angeles Law Review, vol. 23, no. 1, November 1989; Journal of Contemporary Criminal Justice, vol. 5, no. 4, December 1989; Law and Human Behavior, vol. 8, nos. 1/2, June 1984; U.C. Davis Law Review, vol. 18, no. 4, summer 1985; Journal of Criminal Law and Criminology. vol. 74, no. 3, fall 1983.

    Among the recent U.S. government publications containing information of general interest are: "The Federal Death Penalty Act of 1989," Report of the Senate Committee on the Judiciary, 101st Congress, 1st Session, October 1989; "Death Penalty," Hearings Before Committee on the Judiciary, U.S. Senate, 101st Congress, 1st Session, September-October 1989; "Establishing Constitutional Procedures for the Imposition of Capital Punishment," Report of the Senate Committee on the Judiciary, 99th Congress, 2d Session, April 1986; "Capital Punishment," Hearings Before Subcommittee on Criminal Justice, U.S. House of Representatives, 99th Congress, 1st and 2d Sessions, November 1985-July 1986; "Death Penalty Legislation," hearing Before the Committee on the Judiciary, U.S. Senate, 99th Congress, 1st Session, September 1985. For earlier federal government publications, see the bibliography by Radelet and Vandiver, pp. 219-20.

    Statistical information on death sentences and executions since 1930 may be obtained in the U.S. Bureau of Justice Statistics Bulletin, Capital Punishment, an annual report appearing under various titles since the 1950s. The NAACP Legal Defense and Educational Fund publishes "Death Row, U.S.A.," issued since the 1970s several times a year; it reports current demographic information on executions and the death row population.

    NOTES

  • 1 See U.S. Dept. Justice, Capital Punishment, annually, 1980 et seq.
  • 2 See Uniform Crime Reports, annually, 1980 et seq.
  • 3 See Uniform Crime Reports.
  • 4 Uniform Crime Reports, annually, 1980-1989.
  • 5 Bowers and Pierce, "Deterrence or Brutalization," in Crime & Delinquency (1980).
  • 6 U.S. Dept. Justice, Capital Punishment, 1972-1990; Uniform Crime Reports, annually, 1972-1990; and NAACP Legal Defense and Educational Fund, "Death Row, USA," Spring 1992.
  • 7 Bailey and Peterson, in Criminology (1987), p. 22.
  • 8 Sourcebook of Criminal Justice Statistics -- 1990.
  • 9 Bureau of Justice Statistics, Prisons and Prisoners in the United States (1992), p. 1.
  • 10 Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982), p. 167
  • 11 Ehrlich, in American Economic Review (1974); Phillips, in American Journal of Sociology (1980); and Layson, in Southern Economic Journal (1985)
  • 12 Lempert, in Crime & Delinquency (1983); Peterson and Bailey in Chambliss, ed., Criminal Law in Action, 2nd ed. (1984); Bowers, in Hasse and Inciardi, eds., Challenging Capital Punishment (1988); Peterson and Cello, in Social Forces (1988); and Fox and Radelet, in Loyola of Los Angeles Law Review (1989).
  • 13 Blumstein, Cohen, and Nagin, eds., Deterrence and Incapacitation (1975), p. 358.
  • 14 West, Solomon, and Diamond, in Bedau and Pierce, eds., Capital Punishment in the United States (1976).
  • 15 Bedau, "Recidivism, Parole, and Deterrence," in Bedau, ed., Death Penalty in America, 3rd ed.
  • 16 Marquart and Sorensen, in Loyola of Los Angeles Law Review (1989).
  • 17 U.S. Bureau of Justice Statistics, "Capital Punishment," 1977, and NAACP LDF, "Death Row, USA," Spring 1992.
  • 18 Bowers, Legal Homicide (1984); Streib, Death Penalty for Juveniles (1987).
  • 19 "Death Row, USA," 1976 et seq.
  • 20 Uniform Crime Reports, 1972-1990.
  • 21 Baldus, Woodworth, and Pulaski, Equal Justice and The Death Penalty (1990), p. 401.
  • 22 U.S. General Accounting Office, "Death Penalty Sentencing" (1990), pp.5, 6.
  • 23 "Death Row, USA," Spring 1992; and Sourcebook of Criminal Justice Statistics -- 1990.
  • 24 U.S. Bureau of Justice Statistics, "Capital Punishment," 1980-1990.
  • 25 Uniform Crime Reports, 1980-1990.
  • 26 Memorandum, National Coalition to Abolish the Death Penalty, January 1991.
  • 27 U.S. Bureau of Justice Statistics, "Capital Punishment," 1979; NAACP LDF, "Death Row, USA," Spring 1992.
  • 28 Tabak, in Loyola of Los Angeles Law Review (1989).
  • 29 Gross and Mauro, Death and Discrimination (1989), p. 224.
  • 30 Black, Capital Punishment. The Inevitability of Caprice and Mistake. 2nd ed. (1982).
  • 31 Lucas Recueil des debats ... (1831) pt. II, p. 32.
  • 32 Radelet, Bedau, and Putnam, In Spite of Innocence (1992); Bedau and Radelet, Miscarriages of Justice in Potentially Capital Cases, Stanford Law Review (1987).
  • 33 Miller, Invitation to a Lynching (1975); also The New York Times, Sept 10, 1975, p.1.
  • 34 "Capital Punishment" Senate Hearings (1981) pp. 713-20
  • 35 Atlanta Weekly, May 30, 1982.
  • 36 Adams, Hoffer, and Hoffer, Adams v. Texas (1991).
  • 37 Davies, White Lies (1991).
  • 38 (Glass v. Louisiana, 471 U.S. 1080 (1985).
  • 39 Boston Globe, April 24, 1983, p. 24.
  • 40 The New York Times, December 14, 1988, p. A29.
  • 41 Ibid.
  • 42 Los Angeles Times, March 24, 1985, Pt IV, p. 5.
  • 43 Lawes, Life and Death in Sing Sing (1928).
  • 44 Teeters, in Journal of the Lancaster County Historical Society (1960).
  • 45 Boston Globe, August 16, 1976, p. 17
  • 46 Camus, "Reflections on the Guillotine," in Resistance, Rebellion and Death (1960).
  • 47 Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981.
  • 48 Foreword to Gray and Stanley, A Punishment in Search of A Crime (1989).
  • 49 Spangenberg and Walsh, in Loyola of Los Angeles Law Review (1989), p.
  • 50 N. Y. State Defenders Assn., Capital Losses (1982).
  • 51 U S. Govt. Accounting Office, Limited Data Available on Costs of Death Sentences (1989), p. 50.
  • 52 Cited in Spangenberg and Walsh, note 49.
  • 53 Miami Herald, July 10, 1988.
  • 54 New York Times, Sept. 22, 1989
  • 55 New York Times, May 28, 1990; and Fox, Radelet, and Bonsteel, in N.Y.U. Review of Law and Social Change (1990-91).
  • 56 Ancel, The Death Penalty in European Countries (1962), p 55.
  • 57 UN, Ecosoc, Official Records 58th Sess. (1971), Supl. 1, p.36.
  • 58 Hood, The Death Penalty: A World-Wide Perspective (1989); Amnesty International, When The State Kills... (1989).

    Revised July 1992.

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