Capital punishment refers to the intentional killing of a person by a state or federal body of government as a penalty against that person for a crime committed against society. The United States is included in a group of less than 90 countries worldwide that continue to execute persons for ordinary crimes (as opposed to crimes such as treason or genocide). Within the international community, the United States is admonished by many of its allies and challenged under international treaties for continuing to implement the death penalty. Whereas countries such as Australia, England, Canada, and Israel have abolished capital punishment, the United States is joined by nations primarily found in the Middle East, Northern Africa, and Asia, which currently retain the death penalty. Thus, while the rest of the Western industrialized world has largely abolished this punishment, capital punishment in the United States remains an accepted punishment for specific crimes of interpersonal violence, treason, and malevolent acts against the government. Currently, 38 states and the federal government allow the death penalty.
Public Opinion Trends
The first U.S. public opinion polls on the topic of the death penalty began in 1936 following the high-profile execution of the convicted killer of Charles Lindbergh’s baby. At that time, 61% of Americans favored the death penalty. This percentage continued to climb until the early 1950s, when support for capital punishment began to ebb. This decline culminated in 1966 when support levels reached an all-time low of 42%. Support gradually increased then decreased again slightly before Furman v. Georgia (1972), the landmark U.S. Supreme Court decision that created a national moratorium on executions. Post-Furman, support rose from 57% in late 1972 and peaked at a support rate of 80% in the mid-1990s. In recent years, death penalty support has decreased markedly, with 64% of Americans in a 2005 survey saying that they generally supported capital punishment.
These lower levels of support are due to growing public misgivings as reflected in jury verdicts, the actions of the courts and legislatures, and scientific opinion polls. Many Americans are concerned about new DNA testing that has exonerated condemned people, evidence of discrimination and inequality based on race or social status, and the continued possibility of executing innocent people unjustly sentenced to death. When given the choice of life without parole, public opinion for capital punishment drops dramatically. A May 2004 Gallup Poll found that approximately 50% of Americans supported the death penalty and 46% favored life without parole. Recent high-profile killers, such as Dennis Rader (BTK Serial Killer), Gary Ridgway (Green River Serial Killer), and Eric Rudolph (Olympic bomber in Atlanta), were given life sentences without parole. It is estimated that life sentences have doubled in the last 10 years, and legislation to provide “truth in sentencing” has been enacted in response to public demand. However, a majority of Americans continue to support the death penalty as the ultimate punishment for heinous acts against society, especially for cases of terrorism, child rape and murder, and serial killers.
Special Offender Populations And Capital Punishment
There have been several very important U.S. Supreme Court cases in recent years that have resulted in significant changes in the numbers and composition of death row inmates. First, and arguably receiving the most attention at home and abroad, in 2005 the Court held in Roper v. Simmons that the imposition of the death penalty on juveniles offended societal standards of decency. This controversial ruling immediately resulted in the commutation of more than 150 sentences of people on death row to life sentences because the crimes were committed when these people were under the age of 18. This decision was heralded by anti–death penalty groups and international human rights advocates who had condemned the United States for being one of the few countries to still execute juveniles. In contrast, some victims’ rights groups criticized the holding as unjust, since some of these offenders as youngsters had committed brutal acts of violence against their victims and were unremorseful. These groups cited the fact that juries had found guilt and imposed the death penalty based on legal statutes and aggravating factors, regardless of the offenders’ age.
Another major death penalty decision from the U.S. Supreme Court was handed down in 2002 and involved mentally retarded offenders. In Atkins v. Virginia, the Court held that mentally retarded offenders could not be executed for their crimes because they lacked the mental capacity to fully understand what they had done or why they were being executed. The court cited the great number of death-eligible states that had passed legislation to this effect as proof of societal consensus that such executions offended our evolving standards of decency. While this case was also viewed as a significant victory within the anti–death penalty movement, there are still great discrepancies across state jurisdictions as to what constitutes mental retardation. Thus, some scholars have argued that some murderers who are mentally disabled may still be executed as a result of the vagueness and inconsistency between jurisdictions.
In relation to the mentally ill, the Supreme Court has been explicit in stating that mentally incompetent murderers may not be held criminally liable for their crimes unless they can be restored to competency. In 1986, in Ford v. Wainwright, the Court held that there was no deterrent value in executing the mentally ill since the punishment would not deter a person lacking sound mind and body. Moreover, the Court held that the execution of a mentally ill person offended the collective conscience of society because the offender could not appreciate the reasons for the punishment or the finality of his or her own death. Thus, offenders must be held competent or brought back to mental competency prior to a death warrant being carried out.
Recent Trends In The Death Penalty
The death row population increased dramatically after 1976 when the Supreme Court, in Gregg v. Georgia, lifted the de jure moratorium on the death penalty. The population increased steadily between 1976 and 2001, with a peak average of 300 death sentences mandated annually in the late 1990s. Since 2001, the death row population has decreased each year. Part of this decline can be explained by the moratorium on executions in Illinois instituted by former governor George Ryan (167 cases), the ban on the execution of mentally retarded offenders per Atkins v. Virginia in 2002, and the commutation of sentences of offenders who committed capital crimes as juveniles per Roper v. Simmons in 2005 (71 cases).
In 1999, over 3,600 offenders were in prisons across the United States awaiting a death sentence, and 98 people were executed. By 2004, the death row population had decreased to 3,471 offenders and only 59 death warrants were carried out. When compared to 1999, executions in 2004 were down 40% and new death sentences averaged less than 50%, with fewer than 130 offenders sentenced to death that year. At the end of 2005, an estimated 3,381 offenders remained housed on death rows across the United States, and approximately 125 new death sentences were imposed.
Since the reinstatement of the death penalty in 1976, the vast majority of executions have been carried out in Southern states, with 85% of all death sentences carried out in this region of the country. Beginning in 1976 and by mid-2006, Texas had the most executions with 364, followed by Virginia with 95, and then Florida with 60. California has the largest death row population, with 649 people, followed by Texas and Florida, with 409 and 388, respectively. In keeping with prior trends, of the 60 people executed in 2005, 73% had killed White victims. In contrast, no Whites were executed in the United States in 2005 for the murder of a Black person. Critics of the death penalty have pointed to the racial disparity in such statistics as a major problem in the implementation of the death penalty and have called for a moratorium until the issue of discrimination within the criminal justice system can be further addressed.
The Future Of Capital Punishment
On December 2, 2005, Kenneth Boyd was executed by the state of North Carolina for the 1988 murder of his estranged wife and his father-in-law as his two sons watched. This death sentence marked the 1000th execution since the reinstatement of capital punishment in 1976. While the death penalty remains strongly favored by many Americans, especially for high-profile crimes against children or for mass killings, there is a momentum nationally that is reducing the number of death sentences and increasing skepticism about capital punishment.
The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University attempts to free wrongfully convicted offenders based on post conviction DNA evidence and testing. By the close of 2005, 122 inmates had been released from death row after forensic evidence and advanced testing exonerated them. These cases have helped fuel the debate in the United States about whether the death penalty should continue to be implemented. When these concerns are combined with the astronomical costs for capital trials, calls from religious organizations to abolish the death penalty, and reports of a “brutalization effect” after state-mandated executions (whereby murder rates increase after a death sentence is carried out), some academics and political commentators have argued that capital punishment may one day become extinct within the American criminal justice system. Yet the abolition of this punishment in still quite uncertain in the wake of the terrorist attacks of September 11, 2001, and of high-profile cases such as child abductions and rapes by sexual predators that evoke a definitively punitive response from the public. Clearly, the death penalty will continue to be a controversial and polarizing topic across political, religious, and criminological circles in our society for years to come.
- Acker, J. R., Bohm, R. M., & Lanier, C. S. (2003). America’s experiment with capital punishment: Reflections on the past, present, and future of the ultimate penal sanction. Durham, NC: Carolina Academic Press.
- Atkins v. Virginia (2002). 536 U.S. 304.
- Bohm, R. M. (1999). Deathquest: An introduction to the theory and practice of capital punishment in the United States. Cincinnati, OH: Anderson.
- Coyne, R., & Entzeroth, L. (2001). Capital punishment and the judicial process. Durham, NC: Carolina Academic Press.
- Death Penalty Information Center. (2005). The death penalty in 2005: Year end report. Retrieved March 31, 2006, from http://www.deathpenaltyinfo.org/YearEnd05.pdf
- Del Carmen, R. V., Vollum, S., Cheeseman, K., Frantzen, D., & San Miguel, C. (2005). The death penalty: Constitutional issues, commentaries, and case briefs. Cincinnati, OH: LexisNexis.
- Ford v. Wainwright (1986). 477 U.S. 399. Furman v. Georgia (1972). 408 U.S. 238. Gregg v. Georgia (1976). 428 U.S. 153.
- Mandery, E. J. (2005). Capital punishment: A balanced examination. Boston: Jones & Bartlett.
- Roper v. Simmons (2005). 543 U.S. 541.
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