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The Death Penalty: Specific Issues


 

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To the extent possible, this page provides links to resources from both pro and anti-death penalty perspectives on a number of specific issues, such as whether or not the death penalty has any deterrent effect on would-be murderers. Beside deterrence, one of the chief arguments of death penalty advocates is that capital punishment exacts retribution for crimes that serves justice to murder victims and their survivors. Opponents of the death penalty warn of the danger of executing the innocent, offering evidence of actual instances of erroneous convictions and executions of probably innocent people, also noting two causes of miscarriages of justice, government misconduct and the politicization of the death penalty. A related issue is recent laws aimed at limiting appeals, which death penalty opponents believe increases the danger of erroneous convictions and executions of the innocent, while death penalty proponents counter by claiming that appeals are expensive and often frivolous. Abolitionists also argue that the cost of the death penalty is quite high, greater than the cost for the sentencing alternative of life imprisonment without possibility of parole. Another major area of the debate is fairness; death penalty opponents claim that capital punishment as it is applied is marked by inequities such as racial disparities and inadequate defense for poor people. Such concerns have led some bodies to call for a moratorium on executions until inequities are addressed. Related to the issue of fairness is the status of certain specific populations of death row inmates, including women, juveniles, mentally retarded persons, and insane persons. Finally, death penalty opponents and advocates offer opinions about whether capital punishment constitutes cruel and unusual punishment in violation of the U.S. Constitution.
     For more general arguments, including the views of law enforcement officers and arguments bases on religious beliefs, see The Debate.

Disclaimer: The Justice Center is not responsible for the content of any outside site linked here, nor does a listing here imply an endorsement of a site's opinions or content or a guarantee of its accuracy. For further information about this site, including answers to questions by students, see the FAQ.

Deterrence
Death penalty advocates argue that the execution of convicted murderers deter others from committing murder for fear that they will also be executed, and also that murderers will be incapacitated: once dead, they will have no opportunity to commit additional murders. Death penalty opponents dispute the deterrent effect of capital punishment, arguing that few murderers rationally weigh the possibility that they might face the death penalty before committing a murder. Also, some research suggests that the death penalty increases the number of homicides through a "brutalization" effect. Finally, death penalty opponents do not dispute that execution incapacitates executed murders, but argue that life imprisonment without possibility of parole is equally incapacitating.

"The death penalty deters crime."

"The death penalty does not deter crime."


Retribution & Justice for Murder Victims
Death penalty advocates justify capital punishment under the principle of lex talionis, or "an eye for an eye" -- the belief that punishment should fit the crime. In particular, people who favor capital punishment argue that murderers should be executed in retribution for their crimes and that such retribution serves justice for murder victims and their survivors. Death penalty opponents emphasize the sacredness of life, arguing that killing is always wrong whether by individual or by the state, and that justice is best served through reconciliation.

General Arguments

"The death penalty gives justice to murder victims and their families by serving retribution on murderers."

  • "Death Penalty Serves Justice to Victims": by John Hart. Kansas State Collegian, 2 February 1995. Referring to the man who raped and murdered a friend and was sentenced to 40 years, Hart argues that "Gideon and others like him have already sentenced their victims to death. Executing murderers removes an element from society that has held the value of all life in contempt. This serves to uphold the value of not only the victim's life, but all life."
  • Lex Talionis: Arguments for the death penalty as retributive justice presented by pro-death penalty members of a University of Texas student debate on Capital Punishment: Life or Death?.
  • Victims' Voices: A resource provided by Justice For All, a crime victims' advocacy organization in Texas that favors the death penalty. "This page will be, unfortunately, an ever-growing testimony from victims and survivors of victims, telling their stories; what happened to them, what happened to their loved ones, how they came to be involved in Justice For All." Most accounts here were provided by survivors of murder victims.

"The death penalty is state-sanctioned killing that only continues the cycle of violence."


Executing the Innocent
Opponents of the death penalty argue that there is a danger of executing innocent persons, and cite actual cases in which defendents were erroneously convicted of, and sometimes executed for, capital crimes. Death penalty opponents view recent laws which restrict the appeals process as tantamount to increasing the potential for executing innocent people; see Limiting Appeals. Death penalty proponents argue that there are sufficient safeguards against executing persons and that the danger of executing the innocent is small.

Erroneous Convictions & Executions of Innocent People

Illinois Cases of Exonerated Death Penalty Inmates
On January 31, 2000, following the exonerations of 13 death row inmates found innocent of the capital crimes for which they were convicted, Governor George H. Ryan announced a moratorium on executions in Illinois until a review of the administration of the death penalty in the state could be conducted. A commission is being appointed to conduct the review.

The Case of "Crazy" Joe Spaziano

Government Misconduct
Death penalty opponents point at government misconduct as a major cause of erroneous convictions.

Politicizing the Death Penalty
As the death penalty becomes a campaign issue, say death penalty proponents, the chances for miscarriages of injustice increase.

  • Killing for Votes: The Dangers of Politicizing the Death Penalty Process: by Richard C. Dieter. Washington, DC: Death Penalty Information Center, 18 October 1996. "Not only are candidates for legislative office campaigning loudly on the death penalty, even judges and local prosecutors are citing the numbers of people they have sent to death row in their campaigns for office. This political promotion of capital punishment by those responsible for interpreting and implementing the law interferes with the right to a fair hearing and increases the likelihood that innocent defendants will be executed."

Death Penalty Proponents on the Risk of Executing the Innocent
Advocates of the death penalty generally argue either that existing safeguards against executing innocent people are present in the system, especially in the appeals process; or that occasional executions of innocent people are unfortunate, but necessary risks in a society which expects to protect itself.


Limiting Appeals & Habeas Corpus Reform
Advocates of the death penalty have called for the acceleration of executions and limiting appeals, which are expensive and which often appear to be frivolous appeals meant to delay the death penalty process. See also Cost of the Death Penalty. Death penalty opponents argue that limiting appeals, whether to save costs or to accelerate executions, comes only at the cost of weakening due process and increasing the chances that innocent people will be convicted and even executed. See also Executing the Innocent and Moratorium on the Death Penalty.

"Appeals are expensive, often frivolous, and should be restricted."
Resources on this argument are on their way.

"Recent laws enacted to limit appeals will result in a higher risk of erroneous convictions and executions of innocent people."

  • "What's Happened to Habeas?": by Ronald J. Tabak. ABA Individual Rights and Responsibilities Section, Human Rights 23(3), Summer 1996. Examines problems with the federal Anti-Terrorism and Effective Death Penalty Act of 1996, which undermines death row inmate's ability to use federal habeas corpus procedures to challenge unconstitutional convictions or death sentences.
  • "Whatever you think about the death penalty, a system that will take life must first give justice....": by Alex J. Hurder. ABA Individual Rights and Responsibilities Section, Human Rights 24(1), Winter 1997. Discusses problems with the federal Anti-Terrorism and Effective Death Penalty Act of 1996, which undermines death row inmate's ability to use federal habeas corpus procedures to challenge unconstitutional convictions or death sentences and the American Bar Association's obligation to address the problem. ABA later recommended a moratorium on the death penalty, in part to address problems identified in this article.
  • Capital Punishment Costs More than Incarceration: Hugo Adam Bedeau, in his The Case Against the Death Penalty, includes a discussion of federal habeas reform. In nearly half of the death-penalty cases granted review under old (pre-1996) federal habeas corpus provisions, the murder conviction or death sentence was overturned. Restrictions on federal habeas corpus by Congress in 1996 and the ending of funding of regional death penalty "resource centers" which provided counsel on appeal in federal courts will result in an increase in wrongful murder convictions and capital sentences.
  • The Impact of Habeas Reform on Innocent People Sentenced to Death: American Civil Liberties Union, 1996. Presents case histories of 9 death row inmates for whom federal habeas was granted after their cases were "reasonably" decided by state courts. Under habeas corpus "reform" measures, none of the men would have eliminated their ability to demonstrate evidence of their innocence. As of the document's writing, 6 of the men had been released from prison because the writ of habeas corpus permitted them to establish actual or probable innocence of the murders of which they were convicted; the other 3 men were awaiting final disposition.

Cost of the Death Penalty
Death penalty opponents argue that capital punishment is expensive, costing more than it would cost to imprison murderers for life. (See also Alternative Sentencing). Proponents of the death penalty argue that the death penalty is a cost-effective alternative to life imprisonment, or that death penalty costs could be lowered by restricting appeals. (See also Limiting Appeals.)

"The death penalty is expensive and costs more than imprisonment."

"The death penalty costs less (or could cost less) than imprisonment."


Alternative Sentencing

"Life imprisonment without parole is preferable to the death penalty."

"Life without parole does not incapacitate convicted murderers."


Fairness of the Death Penalty
Death penalty opponents argue that capital punishment in the U.S. is applied arbitrarily and unfairly, particularly in regards to race and inadequate defense for poor people.

General Arguments

Racial Disparities
A number of studies indicate that race or ethnic origin of defendants and/or victims have an impact on whether the death penalty is sought.

Indigent defense


Moratorium on the Death Penalty
Although not necessarily taking a position either in favor or against the death penalty, some organizations have called for a moratorium on the death penalty until inequities in its application can be addressed.

American Bar Association
The ABA opposes capital punishment for juveniles or the mentally retarded, but does not take a position on the death penalty as a whole. It calls for a moratorium on executions until problems regarding its application are addressed.

Other Calls for a Moratorium
Amnesty International and the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions both favor total abolition of the death penalty worldwide, but at the very least call for a moratorium on executions in the U.S. until inequities are addressed.


Specific Populations

 

  Karla Faye Tucker
Women
Of the over 19,000 confirmed executions since 1608 in what is now the United States, only 566, less than three percent, were executions of women (as of June 1994). Ten women have been executed in the U.S. since executions resumed in 1976. The woman pictured to the right, Karla Faye Tucker, was was executed in Texas on 3 February 1998 by lethal injection, the second woman to be executed in the post-Furman era. Per the Death Penalty Information Center, as of September 2004 there were 50 women on the nation's death rows. Women continue to be sentence to death at far lower rates than rates for men, acounting for about 10 percent of all murder arrests, but for only 2 percent of death sentences, 1.3 percent of persons actually on death row, and 1.1 percent (since 1976) of executions. [Updated 24-Mar-2005.]

Juveniles
Since the execution of Thomas Graunger in Plymouth Colony, Massachusetts, in 1642, about 346 persons have been executed for crimes committed while they were juveniles. This number represents about 1.8 percent of the 19,000 confirmed executions in what is now the United States since 1608. There are presently 58 inmates, all male, on death row for crimes committed while juveniles. The United States has ratified one treaty that prohibits the execution of persons who were under 18 years old at the time of their offense, but reserved the right to execute juveniles within the constraints of U.S. law. The U.S. has signed, but not ratified, two other such treaties. See International: Conventions & Covenants Prohibiting Capital Punishment for Offenses Committed by Persons Under the Age of 18 for further information.

  • Thompson v. Oklahoma, 487 U.S. 815 (1988): The U.S. Supreme Court ruled that youths younger than 16 years old at the time of their offense cannot be constitutionally executed.
  • Stanford v. Kentucky, 492 U.S. 361 (1989): The U.S. Supreme Court reaffirmed the court's opinion that it was not unconstitutional to execute youths at least 16 years old at the time of committing a capital offense.
  • Executions of Juvenile Offenders: General facts on juveniles who have been executed, with details about the 9 offenders executed for crimes committed while they were juveniles since 1973.
  • Minimum Death Penalty Ages by American Jurisdiction: Information based on "The Juvenile Death Pnealty Today: Present Death Row Inmates under Juvenile death Sentences and Death Sentences and Executions for Juvenile Crimes, January 1, 1973 to June 30, 1997" by Victor L. Streib, 18 August 1997; made available by the Death Penalty Information Center. Information on the legal context and listing of minimum ages provided by state statute in death penalty states.
  • Juveniles and the Death Penalty: Executions Worldwide Since 1985: Information from Amnesty International USA. The USA accounts for the majority of documented cases of persons executed for offenses committed when they were under 18. Details of the nine documented U.S. cases since 1985 are presented, as well as information about international protocols and treaties related to imposition of the death penalty on juveniles.

Mentally retarded persons
As of yearend 1997, 31 mentally retarded men had been executed in the U.S. since 1976. Eleven death penalty states forbid execution of the mentally retarded: Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, New Mexico, New York (except when a prisoner commits murder), Tennessee, and Washington. The federal government also prohibits the execution of mentally retarded persons for federal capital crimes.

Insane persons

Minorities
See above, Racial Disparities.

Poor people
See above, Indigent Defense.


Cruel & Unusual Punishment
Despite U.S. Supreme Court rulings to the contrary, many death penalty opponents consider capital punishment in and of itself to constitute cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution, believing that "evolving standards of decency" (a concept recognized in Trop v. Dulles, 356 U.S. 86 (1958)) have shown the death penalty to be a barbarous practice that should be discarded. Specific methods of execution also frequently come under attack as violating the Eighth Amendment prohibition on cruel and unusual punishment. Death penalty advocates counter that the framers of the Constitution took capital punishment for granted, and did not consider it cruel and unusual. Some proponents of the death penalty believe some methods of execution, such as lethal injection, are more humane than others. (See also Death Row: Methods of Execution.)

General Information

Relevant Statutory & Case Law

  • U.S. Constitution: Eighth Amendment: Includes annotations on a number of constitutional issues affected by this article of the Bill of Rights, including those related to capital punishment.
  • Wilkerson v. Utah, 99 U.S. 130 (1878): The U.S. Supreme Court ruled that the firing squad was a constitutional method of execution.
  • In re Kemmler, 136 U.S. 436 (1890): Holding that the Eighth Amendment did not apply to the states, the U.S. Supreme Court nevertheless compared electrocution to other methods of execution and attempted to define cruel and unusual methods of execution, writing that such punishments "involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the Constitution."
  • Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947): The U.S. Supreme Court ruled that Louisiana could constitutionally subject Willie Francis to the electric chair again after the first attempt at executing him failed.
  • Trop v. Dulles, 356 U.S. 86 (1958): The majority of the U.S. Supreme Court refused to consider "the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment...the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty." The Court held the meaning of the words cruel and unusual punishment draw their meaning "from the evolving standards of decency that mark the process of a maturing society." However, the Court has never used the "evolving standards" test in any case involving methods of execution.
  • Furman v. Georgia, 408 U.S. 153 (1972): The U.S. Supreme Court struck down federal and state capital punishment laws then existing, characterizing them as "arbitrary and capricious" and in volation of cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution. However, the majority of the high court did not find that capital punishment in and of itself constituted cruel and unusual punishment, and reinstated capital punishment in Gregg v. Georgia, 428 U.S. 153 (1976) four years later.

"Capital punishment constitutes cruel and unusual punishment."

"Capital punishment is not cruel and unusual punishment and is constitutionally allowed."


Green, Melissa S. ( 24-Mar-2005 ). "The Death Penalty: Specific Issues." In Melissa S. Green, compiler (1998-2009), Focus on the Death Penalty (website). Justice Center, University of Alaska Anchorage. <http://justice.uaa.alaska.edu/death/issues.html> (accessed date).

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