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Article Excerpt
[This article explores the controversial topic of capital punishment, with a particular focus on its longstanding application in the United States. The use of the death penalty in the US has been the subject of much criticism both domestically and internationally. The numerous concerns addressed in this article relate to the morality of the punishment, its effectiveness, the uneven application of the penalty, and procedural problems. The US Supreme Court has confirmed the constitutionality of capital punishment while striking down particular uses of the death penalty. The US is not, however, alone in executing convicted defendants. Capital punishment is still being used by other jurisdictions, some with more prevalent use than the US, such as the People's Republic of China and Singapore. However; as more nations abolish the death penalty, the question remains, why is capital punishment so widespread in the world?]
CONTENTS I Introduction II Judicial Rulings on the Death Penalty III Legislative Response IV The Current Situation V Attitudes towards Capital Punishment VI Concerns about Capital Punishment A The Moral Argument B Guilt or Innocence? C Procedural Fairness 1 Assistance of Counsel 2 The Involvement of Juries D Bias in the Process 1 Race and the Death Penalty 2 Geography and the Death Penalty VII Limitations on the Use of Capital Punishment in the United States A Only Homicides B The Mentally Retarded C Juveniles VIII The International Experience A International Agreements B Individual Nations 1 People's Republic of China 2 Australia 3 Singapore 4 Japan IX Why Does Capital Punishment Continue?
I INTRODUCTION
The death penalty has been a well-established, though highly controversial, practice in the United States for almost 400 years. The first execution of a criminal in the American colonies occurred in Virginia in 1622. (1) During most of the 20th century, the vast majority of states in the country permitted execution of convicted criminals. (2)
The practice dates back to early English common law, where virtually any person convicted of a felony offence faced a mandatory death sentence, (3) but the practice has always been much more widespread in the US than in the United Kingdom, which abandoned capital punishment in 1973. (4) For much of US history, capital punishment was extended beyond the crime of murder to include, among other offences, arson, burglary, armed robbery, rape, kidnapping, and possession of certain firearms in connection with crimes of violence. (5) The history of capital punishment in the US is centred almost entirely on state criminal justice systems, as opposed to the federal system. This is because virtually all major violent crimes which would give rise to a sentence of death occur within the states and not within the federal system. (6) An examination of the experience of the death penalty in the US is effectively one of male offenders, as female offenders account for a very small number of those who have been eligible for a capital punishment sentence. (7) Such an examination would also look to the various techniques involving the termination of an offender's life--from electrocution (started by New York in 1888) to hanging (the traditional form in most states in early US history), and from public shooting to the adoption of lethal gas and poisonous injections (beginning in 1924 when Nevada became the first state to use gas as an execution method). (8)
This article considers the US system of capital punishment. By also observing similar sentencing systems found elsewhere around the world, I ultimately hope to shed some light on the question of why the US and so many other nations retain the death penalty.
II JUDICIAL RULINGS ON THE DEATH PENALTY
In a five-year period in the mid-1970s, the US Supreme Court for the first time actively involved itself in determining the constitutionality of death penalty statutes. Prior to that time, the justices were (somewhat surprisingly) relatively silent on the basic questions. (9) In 1972, however, in Furman v Georgia ('Furman'), the Court held that the Georgia death penalty statute was unconstitutional because it gave the jury complete discretion to determine upon conviction of murder whether death or life imprisonment was appropriate. (10) A majority of the Court found that the death penalty there was applied in a 'freakish and wanton' manner because the jury's discretion was completely unbridled. (11) The Court, however, had a very difficult time agreeing on why that broad discretion rendered the statute unconstitutional. Indeed, while the decision itself is but one paragraph, a per curiam opinion, there were nine separate opinions (five concurring and four dissenting). With over 240 pages in print, the decision was, at least at that time, the longest ever rendered in the history of the US Supreme Court. (12)
The Furman case engendered much litigation with some state legislatures attempting to avoid the evil of 'unbridled discretion' for the jury by making a death sentence mandatory upon conviction of murder with particular aggravating circumstances. Such statutes, however, were soon struck down. The US Supreme Court in Woodson v North Carolina (13) was concerned that jurors were not allowed to consider the specific characteristics of the offender or the circumstances of the crime. (14) It also stated that:
It is now well established that the Eighth Amendment draws much of its meaning from 'the evolving standards of decency that mark the progress of a maturing society.' ... [O]ne of the most significant developments in our society's treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina's mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish 'be exercised within the limits of civilized standards.' (15)
In Gregg v Georgia, (16) a case of profound significance, the Court was asked to rule on the broad question of whether a death sentence is a violation of the United States Constitution. The Court determined that a death penalty would not violate the United States Constitution if a jury had been given adequate guidance as to the exercise of its discretion (including having sufficient regard to particular aggravating and mitigating circumstances such as the nature of the crime and the character of the offender). (17) While the Court was once again split on the rationale, its conclusion was clear. In the lead opinion, Stewart J wrote:
The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule imposed a mandatory death sentence on all convicted murderers. And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. (18)
Following this cluster of decisions, capital punishment litigation before the US Supreme Court slowed. Still, over the next 30 years, the Court has had numerous occasions to refine the jurisprudence in the area and to distinguish the salient legal issues. The United States Constitution imposes several important limitations with regard to the use of the death penalty. (19) There have been a tremendous number of cases exploring the particular procedural points that must be followed in capital cases. (20) Ultimately, the Court has expressed support for statutes which allow for the execution of offenders so long as the statutes are limited to those offenders who commit 'a narrow category of the most serious crimes' (21) and 'whose extreme culpability makes them "the most deserving of execution."' (22) In short, the US Supreme Court viewed its role as making sure that the process was fair and that the death penalty was reserved only for 'the worst of the worst.' (23)
III LEGISLATIVE RESPONSE
While the decisions of the Supreme Court may not have been unambiguous in the minds of readers, the legislative response to the declaration that death penalty statutes are not per se unconstitutional was crystal clear and dramatic. In the four years following the 1972 Furman decision, 35 states (as well as the federal government) had either reinstated or adopted death penalty statutes. (24) This legislative response was reflected in actual death sentences imposed: in the mid-1970s, just fewer than 300 sentences were ordered per year--some of the highest figures ever recorded. (25)
Most of the state and federal laws regarding the death penalty followed the lead of the US Supreme Court in attempting to limit, but not eliminate, the discretion of a jury by clearly listing the types of killings which would give rise to a capital prosecution. A typical example is the statutory scheme in the State of Indiana. There, the death penalty is available for murder only if the prosecution can prove the existence of at least one of the 'aggravating circumstances' imposed by the state legislature. If the defendant is convicted of murder at trial, a second procedure follows to determine the penalty. The jury hears evidence regarding the aggravating circumstances, as well as any mitigating circumstances which can be offered by the defence. Under the Indiana statute, the aggravating circumstances include the following:
* the victim was killed during the commission of a serious violent crime such as a criminal gang activity, kidnapping or rape;
* the victim was a law enforcement officer;
* the defendant had been convicted of another murder;
* the victim had been mutilated; and/or
* the victim was a young child. (26)
The jurors then return a special verdict stating whether or not they unanimously find the existence of such an aggravating circumstance beyond reasonable doubt so as to allow for the death penalty. If the death penalty is imposed, the defendant can appeal directly to the state supreme court, can seek post-conviction relief within the state, and can ultimately end up in the federal courts on a habeas corpus review limited to federal constitutional and statutory issues. The final resort for the defendant would be a request for clemency from the state Governor. (27)
IV THE CURRENT SITUATION
Over the last few decades, criminal sentencing in the US has become harsh. (28) After a long period of relatively stable use of incarceration for those convicted of a crime, the past 30 years has seen a 'get-tough' approach which has led to remarkable increases in incarceration rates. (29) Indeed, despite the population not having grown tremendously in the US, (30) incarceration has increased at least sixfold. (31)
Three observations can be made about this change in rates of incarceration. First, the increase in incarceration has occurred simultaneously with a substantial decrease in violent crime rates in the US. (32) Secondly, the approach adopted by the US is contrary to that of most other industrialised nations: Americans are incarcerated at a rate of over 700 inmates per 100 000 of population, which is more than five times the rate found in England and Wales, more than six times that of Canada and Australia, and seven times higher than most countries in western Europe: (33)
Incarceration rate (number of people in prison per 100 000 population) Country Japan 53 Switzerland 68 Sweden 73 France 85 Germany 91 Netherlands 93 Italy 100 Australia 112 Canada 116 Spain 125 England and Wales 139 South Africa 400 Russia 628 United States 702 Note: Table made from bar graph.
Thirdly, and perhaps most surprisingly, the use of the death penalty in the US has not followed the upward trend of incarceration rates. The annual number of executions in the US is still far below that of the People's Republic of China ('PRC'), the world leader in that regard. (34) Moreover, while most states retain the death penalty, (35) the actual number of individuals sentenced to receive the death penalty--and those who have been executed--has fallen substantially to its lowest level in decades.
Since 1976, when the death penalty was reinstated by the US Supreme Court, (36) there have been just over 1000 executions in the US. (37) However, this number is not distributed equally throughout the country. Half of the total comes from just three states--Texas, Oklahoma and Virginia--with Texas itself accounting for more than a third of the total with just over 400 individuals executed. (38) What is striking about the state numbers is that while Texas is one of the larger states in terms of population, Virginia and Oklahoma are not. Together, the three states only represent about 11 per cent of the US population. (39)
In the US there are currently over 3300 inmates on death row, a figure which comes close to the all-time high of 3500 registered in 2000. Of course, these numbers may be deceiving since they include people who have been sentenced to death but whose appeals and legal petitions may have been pending for many years. (40) The number of executions per year has varied greatly throughout US history, but has dropped considerably in recent years. During the 1930s and 1940s, well over 100 individuals were executed each year. (41) In peak years since 1976, just over 300 people were sentenced to death each year. (42) In 2004, 59 individuals were executed; 60 were executed in 2005; and 53 were executed in 2006. (43) In 2007, there were 42 executions. (44) In recent years, the year in which the most individuals were executed was 1999, with 98 death sentences carried out. That number has been steadily declining since. (45) Whereas 317 people were sentenced to death in 1996 (representing something of a high water mark), in recent years, death sentences per year have only been about a third of that 1996 figure. (46)
V ATTITUDES TOWARDS CAPITAL PUNISHMENT
Intuitively, support for the death penalty, both in the US and elsewhere, is based upon a notion that it functions as a mode of deterrence. (47) The debate over deterrence has been vigorous throughout the world. While some in the criminal justice field support such an argument, (48) most criminal justice professionals disagree. Indeed, in polls of both police chiefs and criminologists, few thought that the death penalty was effective in reducing violent crime. (49) Furthermore, the public clearly does not base its support of the death penalty on deterrence. In the most recent poll on point, 60 per cent of the US public stated that they did not believe the death penalty acts as a deterrent to the commission of crime. (50) Rather, as numerous able scholars have pointed out, support for the death penalty is more complex and multifaceted. (51)
Polling data in the US makes it clear that while support for the death penalty has dropped considerably in recent years, there remains a core and relatively stable level of such support. An all-time high level of support for the death penalty was recorded in a 1994 poll when 80 per cent of respondents indicated they were in favour of the death penalty for a person convicted of murder. (52) That number, in the most recent poll, has dropped to 65 per cent. (53) The number drops further still (to roughly 50 per cent) when citizens were given a choice between the death penalty and life imprisonment with no possibility of parole. (54) This drop in general public support is also reflected in a number of governmental steps taken which are consistent with such a view. A moratorium on the death penalty has been declared in Illinois, and both New York and Massachusetts have chosen not to re-enact their death penalty statutes. (55) On 17 December 2007, the State of New Jersey became the first state to abolish the death penalty through the legislative process. (56) It is also clear, however, that a core of the US public continues to support the death penalty owing to, as one astute commentator noted, 'an abiding belief that certain crimes, like those committed by Timothy McVeigh [the Oklahoma City bomber], deserve only the death penalty.' (57)
This support for the death penalty in the US should not come as a surprise. On this point, the US is hardly unique. Polls conducted throughout the world indicate that in many countries--even those without capital punishment systems--support for the death penalty is relatively high, sometimes even stronger than in the US. Japan, South Korea, the UK, Canada and Russia are good illustrations. In Japan, public support for capital punishment is above 80 per cent, (58) and in South Korea the figure is 65 per cent (59)--both countries have retained the death penalty. In both the UK (60) and Canada (61) (where capital punishment was abolished in the 1970s), half of those polled supported capital punishment. About two-thirds of the Russian public favour the death penalty., (62) which Russia retains but appears not to utilise. (63) There is strong support for capital punishment in a number of other nations too, such as South Africa (72 per cent), (64) Brazil (51 per cent), (65) Mexico (63 per cent), (66) the Dominican Republic (67 per cent) (67) and the Czech Republic (57 per cent). (68)
VI CONCERNS ABOUT CAPITAL PUNISHMENT
Historically, many concerns regarding the death penalty have been raised in the US and elsewhere. They range from broad ethical questions to quite specific practical issues. Several of the more significant objections are canvassed in this Part.
A The Moral Argument
Increasingly, the debate has shifted from the broad moral, spiritual and religious arguments regarding the death penalty towards other more particular points. Observers question whether the capital punishment system can make correct decisions, whether the procedures are fair, and whether it has a disproportionate impact on particular groups of people. Some view capital punishment in broader terms still, contending, for example, that the execution of dangerous criminals is highly moral and religiously based on the notion of 'an eye for an eye, a tooth for a tooth'. (69) Two such arguments were forcefully and succinctly put in letters to the editor of Newsweek published in response to a 2006 article opposing the death penalty by well-known columnist Anna Quindlen. The first, written by an American, bristles at Quindlen's argument:
Quindlen also uses the tired cliche that the United States is one of the few countries 'that kill people to make clear what a terrible thing killing people is.' Murder and capital punishment are completely different animals. True, both ultimately result in a person's losing his or her life, but one is a crime, and the other is the ultimate punishment for that crime. In putting a person to death, we are removing an individual from our society who has proved to be a dangerous person. (70)
The other letter, from a Canadian, talks about...
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