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Law and Order: The Death Penalty

Updated on January 15, 2014

Map of America, Capital Punishment Style

A Little Bit of Intro, First

The death penalty is one of the most hotly debated issues in America today. Whatever a person’s opinion on the subject, there is no moderation; either someone is passionately for the death penalty, or passionately against it. Between the years of 1977 and 2014 (as of today), there have been 1361 people put to death under the capital statute, with 32 of the 50 states having the law on the books. In the history of America there have been countless more. Currently in the system there are 3170 men and women on death row awaiting their sentence. The US Supreme Court has heard many cases in relation to the death penalty that has affected the shape of the legal system. Since 2010 three states, Connecticut, Illinois, and Maryland have abolished the practice, although those who were sentenced remain on death row. Of those executed since 1976, the year in which Gary Gilmore became the first man executed after a ten year federal ban, 56% have been white, 34% have been black, and 8% have been Hispanic; the remaining two percent were made up of various other races. It is true that while the percentages are higher for white executions, the statistics show a disproportionate number of blacks per population have been executed. Interestingly, for lack of a better word, 75% of murder victims for which the penalty was death were white; however, generally only 50% of murder victims are white. Make of that what you will.

Here's Some History

The history of the death penalty in America begins before the country was born. The practice was carried over by the colonists from Britain, who prodigiously used capital punishment. The first recorded execution was that of Captain George Kendall in 1608, followed in 1632 with the execution of Jane Champion, the first woman in the colonies to receive the death penalty. During this time, capital punishment was outlined by the Divine, Moral and Martial Laws by Virginia governor Thomas Dale, and allowed the death penalty for even small crimes like theft. Children were also not spared this penalty. It was common in early American times for children as young as 7 to be executed for a myriad of petty crimes, including their parents simply deciding they were incorrigible.

During the 18th century, there was a revolution of philosophical and psychological thinking that began to change the way the legal system dealt with the death penalty. These men were ironically European and English men who were affecting the laws in their own country, but movements in America were affected as well. This is particularly true of Cesare Beccaria’s 1767 essay, On Crime and Punishment. In the 1819 translation of the work, it quotes Beccaria as saying,

“Crimes of every kind should be less frequent, in proportion to the evil they produce to society…If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater as often as it is attended with greater advantage.”

Becarria believed that capital punishment was simply a crime perpetuated by the state, and as such should be eradicated with the same prejudice as crimes perpetuated by civilians. He did not see capital punishment as a deterrent.

Becarria and his ilk at the time had a profound effect on the thinking of the American justice system. Men such as Benjamin Rush, a signer of the Declaration of Independence, Benjamin Franklin, and Thomas Jefferson were all influenced by the European thinkers of the time and worked to limit the reaches of the death penalty. In 1794, Pennsylvania became the first state to limit capital punishment to only first degree murder charges. Benjamin Rush, who was also the founder of the Pennsylvania Prison Society, was quoted as saying, “Humanity and reason are likely to prevail so far in our legislature that a law will probably pass in a few weeks that will abolish capital punishment is all cases whatsoever.” While he was wrong, state after state in the later part of the 19th century saw a great deal of reform in their capital laws.

The end of the 19th and the whole of the 20th centuries would see the fervor relating to the death penalty reach a fevered pitch. The method of executions in the states that still utilized them changed from hangings to electric chairs and gas chambers, and finally to lethal injections. The opposition was becoming a larger group. The early 1900’s began the Progressive Era, and the beginning of the school of psychological thought of positivism. Positivism was the first theory of human behavior that posited that crime and deviant behavior is due to factors such as biology and other scientific and medical factors. This school of thought believed that human behavior could not be changed, because the behavior itself is uncontrolled by the person, but can be utilized and controlled by outside forces by understanding how the human mind works. The Progressive Era movement sought social, moral, and judicial reform in America. It was during these times that alcohol was made illegal, child labor laws were redefined, women were given the vote, and an income tax was enacted. Also during these times, six states abolished the death penalty altogether, and three more limited it to only treason and murder of a police officer.

A Bit More History

Despite a resurgence in executions during the tumultuous times of the two World Wars, by the 1950’s America once more saw a reform in the attitudes about capital punishment. In the rest of the world, most allies of the US had already abolished the death penalty. 1958 saw the beginning the many instances of case law that would shape the legal system’s stance on capital punishment, with Tropp v Dulles, an United States Supreme Court case that, while not directly dealing with the death penalty, established that the 8th Amendment contained an “evolving standard of decency that marked the progress of a maturing society”. Tropp dealt with the concept of “cruel and unusual punishment”, which was and still is the basis to opposition of the death penalty. In the next ten years abolitionists would use Tropp as a jumping off point for several USSC cases relating to the death penalty, including those involving juries and racial disparities. Finally, in 1972, in the case of Furman v Georgia, the USSC found that the death penalty was unconstitutional under the 8th Amendment and thereby superseded 40 state death penalty statutes and commuted the sentences of 629 death row inmates.

Unfortunately, 35 states, led by Florida, began to rewrite their death penalty statutes, using legal language that would allow them to skirt the commandment of the US Supreme Court; this included sentencing discretion of judges and juries, and the right to continued automatic appeals in capital cases. This reform allowed these states to close the moratorium on executions, and after ten years, in 1977, Gary Gilmore became the first to be executed, in Utah, by firing squad.

1977 began the modern era of the death penalty. Cases continued to flood the United States Supreme Court, limiting the reaches of the death penalty and creating the mainframe with which the American justice system works today. In Coker v Georgia, it was ruled the death penalty was unconstitutional for a man convicted of rape when the woman was not killed; Ford v Wainwright in 1986 ruled the execution of the mentally insane to be unconstitutional; in 2002 Atkins v Virginia set the standard for the constitutionality of executing those with mental retardation. Limitations on capital punishment and juveniles went through several cases; in 1988 Thompson v Oklahoma stated it was unconstitutional to execute juveniles under the age of 15, but did allow for the executions of juveniles 16 and above. However, in 2005, with the case of Roper v Simmons, it was declared unconstitutional to execute any person under the age of 18 at the time of their crime.

The Elephant in the Room, The Falsely Convicted

No discussion of the death penalty can go forward without addressing the most pressing issue in the debate- that of those who were falsely convicted, and those who were executed and later found to have been innocent.

The Innocence Project is an organization dedicated to helping death row inmates who have DNA evidence existent in their cases have that evidence tested so that they may be exonerated. To date, 143 death row inmates have been exonerated with the help of the organization. When all crimes are factored in, 1,284 people have been exonerated after being wrongly convicted.

What capital punishment proponents overlook is the fact that once a defendant is convicted, it is exceptionally difficult to exonerate them. This is especially true because there are many prosecutors who insist on a person’s guilt even with exculpatory evidence. Despite being presented not only with DNA evidence exonerating that defendant, evidence of misconduct on the part of law enforcement, or the retraction of witnesses, some prosecutors insist they have the right person and refuse to cooperate with appeals. In a November 25, 2011 New York Times article, “The Prosecution’s Case Against DNA”, an Illinois prosecutor named Mike Mermel is quoted as saying post-trial evidence is “irrelevant”. When asked about a case involving the rape and murder of an 11 year old girl who supposed murderer has been in prison but DNA evidence recently revealed he was not the perpetrator, Mermel suggested that the semen found in the girl that did not belong to the alleged killer could be explained by the girl having consensual sex, then right after was raped and murdered by the person he convicted of the crime. He ignored the fact that there was no evidence there were two people having intercourse with the girl. (Illinois has since abolished the death penalty)

If prosecutors and law enforcement agencies only have the agenda of closing cases due to politics and societal pressure, DNA exoneration is an uphill battle. So, too, is evidence gathered in whatever means possible, including coerced confessions, wrongful eyewitness testimony, and corrupt law enforcement practices. Indeed, some states are so rigid in their stance that even with the flimsiest of evidence, and in the face of post-trial exculpatory evidence, that they will continue with executions despite this.

Where We Are Right Now

The Death Penalty Information Center (http://www.deathpenaltyinfo.org/) released its 2013 Year End Report on the current state of capital punishment statistics. What it shows is, I believe, a reflection on how technology is changing the way the system operates. Despite Texas' and Rick Perry's truly commendable approach to doggedly adhering to the state's right to execute, overall executions are down 10% and death penalties are at almost an historic low. Also, public approval for the death penalty is at a 40 year low. These are impressive numbers, depending on your stance. Although maybe less so-or more, again depending-when you consider that 63% of those who were executed were executed in just two states (Texas at 56% and Florida at 7%).

One of the reasons for this decline is the controversy surrounding the drugs used for lethal injections. Lethal injection has been decided as the most humane form of execution, and it's hard to argue the point when considering some of the historic alternatives. Before recently, lethal injection was done by way of administering three drugs: Typically, three drugs are used in lethal injection: sodium thiopental, pancuronium bromide, and potassium chloride. The first is used to render the subject unconscious, the second is a paralytic agent, and the third is used to stop the heart. This combination kills the subject almost immediately and without pain. Recently, however, due to the increasing unwillingness of overseas pharmacies to supply America with these drugs, many states have halted executions because they have not been able to settle on a satisfactory protocol for lethal injections. A few states have gone the route of a one or two drug protocol, typically an overdose of an opiate based painkiller, which forgoes the sodium pentothal and paralytic. Opposers of the death penalty posit that such methods can cause undue pain and suffering to the executed.

Another indicator of a shifting view on the death penalty is the fact that six states in six years have repealed the practice. When New Jersey abolished its death penalty, it was the first to do so in forty years. Since then, New York, New Mexico, Illinois, Connecticut, and Maryland have followed suit, citing differing reasons for their decision. Among those reasons are cost ineffectiveness, a faulty justice system and the unwillingness to execute the possibly innocent, and the recognition of a rampant racial bias.

The actual facts involving the current state of the death penalty are staggering: 85% of the counties in the US have not had a single case resulting in an execution in over 45 years. 2% of counties in the entire country are responsible for 100% of the executions performed. This overwhelmingly suggests that despite the fact that 32 states still have the statute on their books, very few actually utilize the law.

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    • Galadriel Therese profile image
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      Galadriel Thoman 3 years ago from Voorhees, New Jersey

      Thanks so much!

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      lesliebyars 3 years ago

      I enjoyed reading your hub. I voted up and interesting