CAPITAL PUNISHMENT

CAPITAL PUNISHMENT

The lawful infliction of death as a punishment; the death penalty.

Capital punishment continues to be used in
the United States despite controversy over its
merits and over its effectiveness as a deterrent to
serious crime. A sentence of death may be car-
ried out by one of five lawful means: electrocu-
tion, hanging, lethal injection, gas chamber, and
firing squad. As of 2003, 38 states employed cap-
ital punishment as a sentence; 12 statesâ – Alaska,
Hawaii, Iowa, Maine, Massachusetts, Michigan,
Minnesota, North Dakota, Rhode Island, Ver-
mont, West Virginia, and Wisconsin – and the
District of Columbia did not.
The first known infliction of the death
penalty in the American colonies occurred in
Jamestown Colony in 1608. During the period
of the Revolutionary War, capital punishment
apparently was widely accepted – 162 docu-
mented executions took place in the eighteenth
century. At the end of the war, 11 colonies wrote
new constitutions, and, although nine of them
did not allow CRUEL AND UNUSUAL PUNISH-
MENT, all authorized capital punishment. In
1790, the First Congress enacted legislation that
implemented capital punishment for the crimes
of ROBBERY, rape,murder, and forgery of public
SECURITIES. The nineteenth century saw a dra-
matic increase in the use of capital punishment
with 1,391 documented executions. The death
penalty continued as an acceptable practice in
the United States for some time.
In 1967, a national MORATORIUM was placed
on capital punishment while the U.S. Supreme
Court considered its constitutionality. In 1972, it
appeared that the Court had put an end to the
death penalty in the case of FURMAN V. GEORGIA,
408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed 2d 346,
declaring certain capital punishment laws to be
unconstitutionally cruel and unusual because
juries were applying them arbitrarily and capri-
ciously. It seemed as if Furman would mark the
passing into history of capital punishment in the
United States.
By 1976, Georgia, Florida, and Texas had
drafted new death penalty laws, however, and
the U.S. Supreme Court upheld them. Of the
nine justices, only two, WILLIAM J. BRENNAN JR.
and THURGOOD MARSHALL, persisted in the
belief that capital punishment is unconstitu-
tional per se. Capital punishment had survived,
and so had the controversies surrounding it.
Although the U.S. Supreme Court has held that the Constitution permits the use of capital punishment, decisions on this issue have divided
the Court and have done little to convince opponents
of the death penalty that it is fair. Critics
have argued that the death penalty is a form of
cruel and unusual punishment, that it is applied
in a racially discriminatory manner, that it lacks
a deterrent effect, and that it is wrong.
Cruel and Unusual Punishment
The EIGHTH AMENDMENT of the U.S. Constitution
prohibits the government from inflicting
“cruel and unusual punishments.” The
controversy over the constitutionality of the
death penalty lies in the AMBIGUITY of the
phrase “cruel and unusual.” The first meeting of
Congress addressed the phrase for only a few
minutes. Congressman WILLIAM SMITH of
South Carolina foreshadowed the controversy to
come when he stated that the wording of the
Eighth Amendment was “too indefinite.”
Whereas some argue that the phrase “cruel
and unusual” refers to the type of punishment
inflicted (such punishments as the severing of
limbs, for example, would almost certainly be
considered cruel and unusual), others feel that
the phrase refers to the degree and duration of
the punishment. The U.S. Supreme Court has
rejected both interpretations, leaving the death
penalty a legal means of punishing certain criminals.
The FIFTH AMENDMENT seems to supply a
clearer basis for assuming the constitutionality
of the death penalty. This amendment states that
no one shall be “deprived of life, liberty, or property,
without due process of law.” From this language, one can conclude that with DUE PROCESS
OF LAW, capital punishment may be imposed.
In Furman, the justices who found the death
penalty to be unconstitutional pointed to the
language of the Eighth Amendment as the basis
of their decision. Chief Justice WARREN E.
BURGER, who filed a dissenting opinion, relied
heavily upon the language of the Fifth Amendment
to support his argument that the death
penalty was constitutional.
Evolving Standards of Decency
However, administration of capital punishment
is not necessarily constitutional under all
circumstances, against all classes of defendants,
or for all types of crimes. The U.S. Supreme
Court has recognized that what may have been
constitutionally permissible when the Eighth
Amendment was ratified in 1791 might be cruel
and unusual now, if application of the death
penalty in particular cases offends the “evolving
standards of decency” test. Under this test,
courts will examine prevailing opinions among
state legislatures, sentencing juries, judges,
scholars, the American public, and the international
community to determine whether a particular
application of the death penalty is cruel
and unusual. For example, in Penry v. Lynaugh,
492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256
(1989), the Court examined many of these factors
and determined that there was no clear consensus
against executing mentally retarded
defendants who had been convicted of murder.
However, just 13 years later, the Court found
that “standards of decency” had evolved to a point where mentally retarded defendants could
no longer be made subject to capital punishment
without violating the Cruel and Unusual
Punishment Clause of the Eighth Amendment.
ATKINS V. VIRGINIA, 536 U.S. 304, 122 S. Ct.
2242, 153 L. Ed. 2d 335 (U.S. 2002). The Court
emphasized the fact that since Penry 18 states
had passed legislation excluding the mentally
retarded from the class of defendants who are
eligible for capital punishment. Applying the
same type of analysis in Stanford v. Kentucky,
492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306
(1989), the Court found that there was no
national consensus prohibiting the execution of
juvenile offenders over age 15. But the Court did
find sufficient proof of consensus against making
rape defendants as a class that was eligible
for capital punishment, stressing that only one
jurisdiction in the country at the time of its
decision allowed capital punishment for the
rape of an adult woman. Coker v. Georgia, 433
U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (2002).
Death by electrocution has been challenged
several times as being inconsistent with “evolving
standards of decency”. In a series of Florida
cases, the U.S. Supreme Court denied certiorari
in appeals where the petitioner offered proof
that during the execution the electric chair was
engulfed by flames and that smoke had
emanated from the inmate’s head. But the
Florida Supreme Court ruled that death by electrocution
does not violate the Eighth Amendment’s
prohibition of cruel and unusual, citing
evidence that execution by electrocution renders
an inmate instantaneously unconscious, thereby
making it impossible to feel pain when the electrical
current is properly maintained. Provenzano
v. Moore, 744 So. 2d 413 (Fla. 1999), cert
denied, 528 U.S. 1182, 120 S. Ct. 1222, 145 L. Ed.
2d 1122 (2000).
Capital Punishment for
DWI-Related Offenses
Many observers expected the “evolving standards
of decency” test to be invoked by a North
Carolina defendant when prosecutors sought to
impose the death penalty for crimes he committed
during a 1996 drunk-driving incident that
left two college students dead. Thomas Richard
Jones was charged and convicted on one count
of driving while impaired, one count of assault
with a deadly weapon, three counts of assault
with a deadly weapon inflicting serious injury,
and two counts of first-degree murder under the
FELONY-MURDER RULE. During the penalty
phase, the jury rejected the prosecution’s arguments
for capital punishment, instead sentencing
Jones to life in prison.
When Jones appealed his conviction, the
North Carolina Supreme Court did not review
his sentence under an Eighth Amendment
analysis. Rather, the state’s high court ruled that
any sentence that Jones might have received for
first-degree murder would not have been justified,
because a first-degree murder charge can
only be supported by proof that the defendant
possessed a “specific intent” to commit the
crime. At a minimum, the court said, proof of
SPECIFIC INTENT requires evidence that the
defendant had “an actual intent to undertake the
conduct resulting in death; thus, even if the
killing itself was not intended, the actual intent
to torture, poison, starve, or imprison the victim
must be present . . . for the killing to qualify as
first-degree murder.” The North Carolina
Supreme Court rejected the state’s argument
that specific intent could be “implied” from the
defendant’s reckless conduct. State v. Jones, 538
S.E. 2d 917 (N.C. 2000). No state court since
State v. Jones has successfully prosecuted a defendant
for first-degree murder arising out of a
drunk-driving-related offense.
Racial Bias
In 1983, Professor David C. Baldus, of the
University of Iowa College of Law, published a
study on the capital punishment system in the
state of Georgia. The figures he assembled
showed that between 1973 and 1979, killers
whose victims were white were 11 times more
likely to be sentenced to death than were killers
whose victims were black.
Baldus’s study was used by death row inmate
Warren McClesky in an appeal that came before
the U.S. Supreme Court (McClesky v. Kemp, 481
U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262).
Although the Court accepted the validity of the
study, it found the statistics “insufficient to
demonstrate unconstitutional discrimination”
or “to show irrationality, arbitrariness, and
capriciousness.”
Other studies have yielded equally staggering
numbers regarding the statistical differences
between the system’s treatment of blacks and
whites. For example, between 1976 and 1995, a
total of 245 convicts were executed; 84 percent
of their victims were white, although fewer than
50 percent of all murder victims are white. Many critics argue that statistics demonstrating racial
bias in the administration of capital punishment
prove that the death penalty, even if constitutional
in concept, is unconstitutional as applied
in the United States—violating at least the
EQUAL PROTECTION CLAUSE of the FOURTEENTH
AMENDMENT.
Justice LEWIS F. POWELL JR., who voted with
the majority in McClesky to deny a racial-bias
challenge to the capital punishment system, later
informed a biographer that he since had come to
regret his vote.
Consideration of Mitigating Factors
In general, the jury may not be precluded
from considering, and may not refuse to consider,
any relevant mitigating evidence in determining
whether capital punishment is the
appropriate sentence for a particular defendant.
However, the Eighth Amendment does not
require courts to instruct a jury during the
penalty phase that it has both an obligation and
the authority to consider the mitigating factors
deemed relevant by state law. Buchanan v.
Angelone, 522 U.S. 269, 118 S. Ct. 757, 139 L. Ed.
2d 702 (1998). Instead, it is sufficient for a court
to instruct the jury that it must impose a life
sentence if, after considering “all the evidence,”
the jury does not believe that capital punishment
is justified.
Once convicted and sentenced to death,
death row inmates may again cite mitigating factors
in making an appeal for leniency or
clemency from the state’s PAROLE board or
another EXECUTIVE BRANCH department. Such
appeals often cite mitigating factors that existed
either before, after, or at the time the crime was
committed. However, parole boards and related
executive branch departments are under no
obligation to give mitigating evidence any
weight, and may typically reject a death row
inmate’s request for clemency without providing
any reason for doing so.
For example, the Texas Parole Board was
flooded with requests to grant clemency to Karla
Faye Tucker, a death row inmate who had been
convicted of brutally killing two people with a
pickax during a 1983 robbery. Despite evidence
that Tucker was 23 years old and high on drugs
at the time of the crime, that she had been
addicted to drugs since she was eight years old,
and that she had been a prostitute since age 14,
the sentencing jury found more compelling
other evidence showing that Tucker had a history
of violent behavior, that she had received
sexual gratification every time she struck one of
the victims with the pickax, that she had talked
of killing two others to prevent them from
telling police about the murders, and that she
had planned future crime sprees to raid drug
labs, kill the people who worked there, and steal
their property.
During her 14 years on death row, however,
Faye underwent a religious conversion to Christianity
that many people believed was sincere. In
fact, religious leaders from around the world,
including Pope John Paul II, made personal
appeals to have Tucker’s sentence commuted to
life in prison. The European Parliament and the
UNITED NATIONS also publicly sought clemency
for Tucker. The Karla Faye Tucker who was on
death row, they all said, was not the same person
who had committed the gruesome murders
more than a decade earlier.
The Texas BOARD OF PARDONS & Paroles
refused to stay the execution, finding that neither
Tucker’s gender nor her religious conversion
were sufficient grounds to commute her
sentence. “Mercy was already considered by the
jurors when they sentenced her to die,” the
chairman of the pardons and parole board said.
Then-Texas Governor GEORGE W. BUSH also
rejected Tucker’s requests for clemency. Tucker
challenged the adequacy of the Texas executiveclemency
procedures, but the Texas Court of
Criminal Appeals concluded that “[a]n inmate
has no constitutional or inherent right to commutation
of her sentence.” Ex parte Tucker, 973
S.W. 2d 950 (Tex. Crim. App. 1998). Clemency,
the court wrote, is a matter that rests solely
within the “unfettered discretion” of the executive
branch of the state government. On February
3, 1998, Tucker became the first woman to
be executed in Texas since the Civil War.
Deterrent Effect
Since the turn of the twentieth century,
many studies have been conducted on the deterrent
effect of capital punishment. More often
than not, the results have proved inconclusive;
no hard evidence exists to verify the theory that
the threat of such a harsh punishment will sway
criminals from their actions. In fact, some statistics
indicate that the opposite is true; in some
instances, states that employ capital punishment
have a higher incidence of HOMICIDE than
neighboring states that do not employ the death
penalty.

The U.S. Supreme Court justices in the Furman
case, both concurring and dissenting, often
referred to studies that showed no conclusive
correspondence between capital punishment
and the frequency with which capital crimes
were committed. A later accounting revealed
that during the moratorium on capital punishment,
from 1967 to 1976, the national homicide
rate nearly doubled. Since then, depending on
the study conducted, evidence has been presented
to show that capital punishment has no
deterrent effect; that the implementation of the
death penalty is directly related to a decrease in
capital crime; and that the implementation of
the death penalty is directly related to an
increase in capital crime.
Although some opponents of the death
penalty are quick to argue that capital punishment
has no deterrent effect, many supporters
feel that the purpose of capital punishment is
retribution, not deterrence. Many individuals,
especially those with close ties to the victims, are
more often concerned that the particular convicted
criminal pay for the crime than that other
persons be deterred through punishment of the
perpetrator.
Morality and Emotion
Emotions might have played a part in the
Furman decision. Burger, in his dissent, warned
that the Court’s “constitutional inquiry . . . must
be divorced from personal feelings as to the
morality and efficacy of the death penalty.” Justice
HARRY A. BLACKMUN, who joined Burger in
his dissent, later renounced his belief in the
death penalty for reasons that another justice
saw as partly personal.
In 1994, in Callins v. Collins, 510 U.S. 1141,
114 S. Ct. 1127, 127 L. Ed. 2d 435, Blackmun
wrote a dissenting opinion in which he condemned
the practice of capital punishment in
the United States. He argued that “no combination
of procedural rules or substantive regulations
ever [could] save the death penalty from its
inherent constitutional deficiencies”—“arbitrariness,
discrimination, caprice, and mistake.”
Justice ANTONIN SCALIA criticized Blackmun’s
position, writing that Blackmun had based his
dissent on intellectual, moral, and personal reasons,
rather than on the authority of the Constitution.

Other Issues

Other controversial aspects of capital punishment
disturb the public. Between 1976, when
the moratorium on capital punishment was
lifted, and 1995,
■ More than 50 mentally ill or mentally
impaired individuals were put to death
■ Nine juveniles were executed
■ The cost of executing a death row inmate
was three to six times as high as incarcerating
him or her for life without parole.
Despite the controversy, the constitutionality
of capital punishment has been upheld and
continues to be an acceptable practice in thirtyeight
states, where nearly 3,500 inmates waited
on death row throughout the United States by
the end of 2001.
FURTHER READINGS
Banner, Stuart. 2002. The Death Penalty: An American History.
Cambridge, Mass.: Harvard Univ. Press.
Bedau, Hugo Adam, and Paul G. Cassell, eds. 2004. Debating
the Death Penalty: Should America Have Capital Punishment?
New York: Oxford Univ. Press.
Bigel, Alan I. 1994. “Symposium on Capital Punishment—
Justices William J. Brennan, Jr., and Thurgood Marshall
on Capital Punishment: Its Constitutionality, Morality,
Deterrent Effect, and Interpretation by the Court.”
Notre Dame Journal of Law, Ethics, and Public Policy
(Thomas J.White Center on Law and Government).
Foley, Michael A. 2003. Arbitrary and Capricious: The
Supreme Court, the Constitution, and the Death Penalty.
Westport, Conn.: Praeger.
Rodriguez, Roxanne. 2001. The Modern Death Penalty: A
Legal Research Guide. Buffalo, N.Y.:W.S. Hein.
Von Drehle, David. 1995. Among the Lowest of the Dead: The
Culture of Death Row. New York: Times Books.

CROSS-REFERENCES
Witherspoon v. Illinois.

The Costs of Capital Punishment

In 1989, the state of Florida executed
42-year-old Ted Bundy. Bundy confessed
to 28 murders in four states. During
his nine years on death row, he
received three stays of execution. Before
he was put to death in the electric chair,
Bundy cost taxpayers more than $5 million.
In a country where some 70 percent
of the population favors the death
penalty, many people may feel that
Bundy got what he deserved. A further
question, however, is whether U.S. taxpayers
got their money’s worth. When a
single sentence of death can cost millions
of dollars to carry out, does it make economic
sense to retain the death
penalty?
At first glance, the costs
involved in the execution of an
inmate appear simple and
minuscule.As of 2003, the state
of Florida paid $150 to the executioner,
$20 for the last meal,
$150 for a new suit for the inmate’s burial,
and $525 for the undertaker’s services
and a coffin. In Florida, the cost of an
execution is less than $1,000.
The actual execution of an inmate is
quick and simple; the capital punishment
system is far more complex. To resolve
issues of unconstitutionality that the
Supreme Court found in FURMAN V.
GEORGIA, 408 U.S. 238, 92 S. Ct. 2726,
33 L. Ed. 2d 346 (1972), states found it
necessary to introduce a complex appeals
process that would guarantee the rights
of death row inmates. Capital trials are
much more expensive to carry out than
are their noncapital counterparts because
of the price at stake, the life of the
accused. Evidence gathering is also more
expensive: evidence must be collected not
only to determine the guilt or innocence
of the accused but also to support or contradict
a sentence of death. All sentences
of death face a mandatory review by the
state supreme court, at an
additional cost of at least
$70,000. If a case advances further
in the state or federal
appeals process, the costs are
likely to jump to $275,000 or
more for each appeal.
Appeals of a death sentence
guarantee great expense to the taxpayer,
as the state pays both to defend and
to prosecute death row inmates. Public
defenders in such appeals openly admit
that their goal is delay, and prosecutors
and state attorneys slow the process by
fighting access to public records and
allowing death row defendants to sweat
out their cases until the last minute.
Abolitionists believe that the existing
system cannot be repaired and must be
abandoned. The alternative sentence, life
imprisonment without PAROLE, achieves
the same result as capital punishment,
they argue. Like the death penalty, a life
sentence permanently removes the convict
from the community against which
he or she committed crimes. And it is far
less expensive.
According to a 1990 study, the total
cost to build a maximum-security prison
cell is $63,000, which breaks down to
approximately $5,000 a year in principal
and interest. The annual cost to maintain
an inmate in this cell is approximately
$20,000 a year. Together, these costs mean
an annual expenditure of $25,000 to
incarcerate an inmate. Based on a sentence
term of 40 to 45 years, one inmate
would cost the taxpayer only slightly
more than $1 million—less than a third
of what it would take to pay for the
process that culminates in execution. A
twenty-five-year-old woman convicted of
first-degree murder would need to serve
a life term to the age of 145 before the
costs of incarcerating her would surpass
those of executing her.
Other studies have reached similar
conclusions. According to a study by the
Indiana Criminal Law Study Commission
released in 2002, executions cost the
state 38 percent more than the costs of
keeping an inmate incarcerated for life.
Similarly, a 1993 study at Duke University
showed that between 1976 and 1992, the
state of North Carolina spent in excess of
$1 billion on executions or $2.16 million
per execution. Moreover, in January
2003, the California governor approved
the construction of a $220 million stateof-
the-art death row.
Not only are the costs of execution
excessive but so too are the time delays. It
is not unusual for an individual to wait
on death row for more than ten years. In
the 1995 case Lackey v. Texas, 514 U.S.
1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304,
Clarence Allen Lackey, who had been on
death row for seventeen years, claimed
that such a duration constituted CRUEL
AND UNUSUAL PUNISHMENT. Although
his motion was denied, Justices JOHN
PAUL STEVENS and STEPHEN BREYER
admitted that the concern was not without
warrant.
Opponents of capital punishment
point out that abandoning the death
penalty would make available many millions
of dollars as well as thousands of
hours that the courts could allocate to
other aspects of the criminal justice system.
The amount of money necessary to
execute a single inmate might be used to
put several criminals behind bars for the
remainder of their lives.
Supporters of capital punishment
agree with detractors on one issue: the
death row appeals process is far too complex
and expensive. However, while
opponents of the death penalty use this
as a reason to reform sentencing, supporters
use it as a reason to reform the
system of appeals. Supporters argue that
thorough reform of the appeals process
would free up as much money as abolishing
the death penalty; expenses could be
cut while capital punishment is retained.
Immediately following the execution
of Bundy, Chief Justice WILLIAM H.
REHNQUIST called for changes in the
procedure for appealing death sentences.
Noting that the Supreme Court had
turned down three emergency appeals by
Bundy in the hours just prior to his execution,
the chief justice said, “Surely it
would be a bold person to say that this
system could not be improved.”
In a 1995 interview, President BILL
CLINTON, a staunch supporter of capital
punishment, called the appeals process
ridiculous and in need of reform. Clinton,
like other supporters of the death
penalty, saw appeals reform as paramount
if capital punishment is to be efficiently
and effectively carried out.
Supporters also argue that too many
rights are provided to death row inmates.
The appeals process is too kind to convicts,
they argue, and ignores the pain
that persists in the aftermath of the criminals’
actions. Family members of victims
of capital crimes are expected to wait
years, while perpetrators abuse the system
to forestall execution of the sentence
imposed.
In addition to the president, the
nation’s highest court sides with those
who support capital punishment. Under
the leadership of Chief Justice Rehnquist,
the Supreme Court has moved to limit
the number of appeals a death row
inmate may file, arguing that endless
appeals serve only to undermine the ability
of the state to carry out its constitutionally
sanctioned punishment.

FURTHER READINGS
Gold, Russell. 2002. “Counties Struggle with
High Cost of Prosecuting Death-Penalty
Cases; Result is Often Higher Taxes, Less
Spending on Services; ‘Like Lightning
Striking.’” The Wall Street Journal (January
9).
“Judge Changes Mind on Murder Case Costs.”
2002. The New York Times (August 25).
Streib, Victor L. 2003. Death Penalty in a Nutshell.
St. Paul, Minn.: Thomson/West.

CROSS-REFERENCES
Cruel and Unusual Punishment; Due Process.