case study of capital punishment

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Troy Davis execution: five egregious death penalty cases in the past year

The massive outpouring of anger over Troy Davis's death a year ago has not prevented other executions going ahead in the US amid considerable controversy. Here are five cases of death row prisoners who have been judicially killed over the past year, each representing a different flaw in the application of capital punishment in America today:

Manuel Valle

Executed: 28 September 2011, aged 61

Flaw: Cruelty of prolonged stay on death row

The case: Valle, a Cuban national who was convicted of murdering a police officer in 1978, spent 33 years on death row. During that time he was held largely in solitary confinement – conditions that it has been argued amount to cruel and unusual punishment that should be banned under the eighth amendment of the US constitution.

The US supreme court judge, Justice Breyer, voted for a stay of execution for Valle but was outnumbered by his colleagues. Breyer wrote a minority judgment in which he said: "I have little doubt about the cruelty of so long a period of incarceration under sentence of death."

Christopher Johnson

Executed: 20 October 2011, aged 38

Flaw: "Volunteer"

The case: Johnson was one of the few prisoners who are executed every year as "volunteers" – that is they choose to die and waive all rights to appeal or clemency. That may sound like their right to do so, but the problem is that academic studies have found that about 80% of the volunteers show signs of serious mental illness.

Johnson was no exception. His childhood was troubled with psychotic episodes and in prison he tried several times to kill himself. Yet his desire to be executed for having murdered in 2005 his six-month-old son was still taken by the justice system to be a sane expression of choice, and not as some experts decried a form of judicially approved suicide.

Edwin Turner

Executed: 8 February 2012, aged 38

Flaw: Mental illness

The case: You could tell that Turner had a history of mental illness just by looking at him – his face was terribly disfigured from a rifle bullet after he tried to shoot himself aged 18. His family also had a history of suicide attempts and hospitalisations for mental illness that ran through both his parents and his grandmother and great-grandmother.

There is no law in the US preventing executions for those who are mentally ill. Unless it can be proved they were insane at the moment they committed the crime, they are not exempt from the gurney.

Despite clear evidence that Turner was ill, he was put to death for fatally shooting a clerk in 1995 during a robbery.

Marvin Wilson

Executed: 7 August 2012, aged 54

Flaw: Mental "retardation"

The case: Wilson was diagnosed as having learning difficulties – a condition still referred to by the US courts as "retardation". He was recorded with an IQ score of 61, putting him in the lowest percentile of the population.

The US supreme court banned executions for people with learning difficulties in 2002. None the less, Wilson was still put to death for the 1992 murder of a police drug informant because his state, Texas, applies its own definition of "retardation" based on the character of Lennie Small in John Steinbeck's 1937 novel Of Mice and Men.

Daniel Cook

Execution: 8 August 2012, aged 51

Flaw: Childhood abuse

The case: Cook was executed for the horrendous strangulation murders of two men, one aged 16, in 1987. Though there was no doubt about the heinousness of his crimes, his lawyers argued that Cook suffered such appalling abuse as a child that he should have been shown clemency in commuting his sentence to life in prison.

He was abused from infancy into his teenage years, including rape by his mother, step-father, foster parents, grandparents and the manager of a group home where he was resident. Expert witnesses testified at his appeal that he suffered post-traumatic stress disorder as a result of the abuse, leaving him prone to wild mood swings that could have been a factor behind the murders he committed.

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Summaries of Key Supreme Court Cases Related to the Death Penalty

Witherspoon v. Illinois , 391 U.S. 510 (1968): Jurors must be willing to impose the death penalty in order to sit on a capital jury.

Furman v. Georgia , 408 U.S. 238 (1972): The application of the death penalty is unconstitutional.

Woodson v. North Carolina , 428 U.S. 280 (1976): Mandatory death sentences violate the Eighth and Fourteenth Amendments.

Coker v. Georgia , 433 U.S. 584 (1977): Death sentences for the rape of an adult woman violate the Eighth Amendment.

Lockett v. Ohio , 438 U.S. 586 (1978): Death penalty statutes must allow consideration of mitigating evidence in addition to the circumstances of the offense in determining whether a defendant should be sentenced to death.

Enmund v. Florida , 458 U.S. 782 (1982): Death sentences for individuals who did not intend to kill the victim violate the Eighth Amendment.

Ford v. Wainwright , 477 U.S. 399 (1986): The Eighth Amendment prohibits the execution of a person who is insane and not aware of his execution or the reasons for it.

Batson v. Kentucky , 476 U.S. 79 (1986): It is unconstitutional to exclude potential jurors solely on the basis of race.

McCleskey v. Kemp , 481 U.S. 279 (1987): Statistical studies that show evidence of racial disparities in capital proceedings do not prove that an individual's death sentence is unconstitutional under the Eighth and Fourteenth Amendments.

Thompson v. Oklahoma , 487 U.S. 815 (1988): The execution of a person under the age of 16 at the time of the offense is a violation of the Eighth Amendment.

Penry v. Lynaugh , 492 U.S. 302 (1989): It is not unconstitutional to execute a person with "mental retardation", however the Texas statute insufficiently allows jurors to consider "mental retardation" as a mitigating factor.

Stanford v. Kentucky , 492 U.S. 361 (1989): The Constitution does not prohibit the execution of individuals who were 16 or 17 at the time of the offense.

Herrera v. Collins , 506 U.S. 390 (1993): A defendant's claim of actual innocence does not entitle him to federal habeas relief.

Atkins v. Virginia , 536 U.S. 304 (2002): The execution of a person with "mental retardation" violates the Eighth Amendment.

Wiggins v. Smith , 539 U.S. 510 (2003): The Sixth Amendment requires defense counsel to conduct mitigation investigations in capital cases.

Roper v. Simmons , 543 U.S. 551 (2005): The Constitution prohibits the execution of individuals who were under 18 at the time of the offense.

Baze v. Rees , 553 U.S. 35 (2008) : The Supreme Court ruled that Kentucky's three-drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment.

Kennedy v. Louisiana , 554 U.S. 407 (2008) : The U.S. Supreme Court struck down as unconstitutional a Louisiana statute that allowed the death penalty for the rape of a child where the victim did not die.

The Case That Made Texas the Death Penalty Capital

In an excerpt from his new book, ‘let the lord sort them,’ marshall project staff writer maurice chammah explains where a 1970s legal team fighting the death penalty went wrong..

The town of Cuero, halfway between San Antonio and the Gulf Coast, was small enough that a child’s disappearance would be noticed quickly. In August 1973, a little after dusk, the grandmother of 10-year-old Wendy Adams arrived to pick her up at the pool in the town park. Her clothes were still in a locker. “The child was obedient,” her grandmother later recalled, “and I knew that if she had changed her plans she would have called me.” She alerted the woman behind the park concession stand, who happened to also be the wife of the local police chief. A search began.

Witnesses had seen Adams in the back of a dark blue pickup truck, speeding down the road, screaming for help as her long, blonde hair billowed in the wind. A group of adolescent girls said a 22-year-old cotton mill worker named Jerry Jurek had tried to chase them down in the same truck earlier that day. Late that night, the police picked up Jurek at his parents’ house, and brought him, shoeless and shirtless, to the local jail. Among the arresting officers was Ronnie Adams, the father of the missing girl.

Jurek initially denied involvement, but eventually confessed. He said he’d been drinking and invited Adams to go “riding around” with him. She climbed into his truck and he drove to a bridge just outside of town. “Wendy told me that I shouldn't be drinking, and that I was just like my brother who drinks a lot,” he said in a written confession. “I got mad at her and jerked her off the truck and grabbed Wendy around her throat and choked her to death; she tried to talk to me to get me to stop but I wouldn't listen.” Sheriff’s deputies found her body floating face down in the river below the bridge.

Prosecutors remained suspicious about whether Jurek was telling them the whole truth, and they continued to press him. He gave a second confession. “I did not tell the truth about the conversation I had with Wendy at the river…and I now herein wish to correct that statement,” reads his second confession, using oddly formal language. “I asked her if she had ever had sex before and she said yes. I asked her if she wanted to have sex with me but she said no and started screaming and yelled ‘help’ and ‘please don't kill me.’ So I started choking her.” Jurek was charged with “murder in the course of kidnapping and attempted rape.” Prosecutors decided to seek the death penalty.

This all might have amounted to a straightforward small-town murder case, one of thousands every year resolved through a plea deal or a short trial, and Jurek might have faded into the rising wave of mass incarceration. But one year earlier, the Supreme Court had struck down every death penalty law in the country. State legislators across the U.S. raced to write new laws, and by May 1973, Texas had one on the books. As one of the first death sentences under the new law, Jurek’s case would become a test case, playing a key role in both the nationwide rise of the death penalty and Texas’s place at the center. Since 1972, Texas has carried out more than 500 of the country’s roughly 1,500 executions. The case of Jerry Jurek—and the many what-might-have-beens along his path through the legal system—helps explain why.

Shortly before his trial, Jurek was appointed two attorneys: George Middaugh, a part-time lawyer who also ran a lumber mill, and Emmett Summers III, who had finished law school three months before the murder. Summers had grown up with Jurek’s older brother and knew the Adams family, too. The more experienced attorneys in town didn’t want to be associated with such a horrible crime, he recalled years later, but “a young guy like me could get away with it.” Middaugh “was certainly not a criminal law expert,” Summers continued, “but it was not like anyone else was beating down the door to do it.” (Middaugh died in 2011.)

At Jurek’s five-day trial, his lawyers repeatedly cast suspicion on the two confessions, the first of which had been made after Jurek had spent a night, as Summers recalled, “virtually naked in this cold jail cell.” Jurek had scored 66 on the verbal portion of an IQ test, indicating an intellectual disability. And yet his first confession had him putting strangely mature words in the mouth of a 10-year-old, and his second confession used phrases like “herein” and “my prior statement.” The pathologist who examined Adams’ body found evidence of strangulation, but not of rape.

As Middaugh saw it, his client had no obvious motive to give a second confession, but the prosecutors did have a motive to get one. Shortly before the crime, he told the jury, the Texas legislature had decided that someone could only get the death penalty if they committed a second crime along with the murder, like rape or kidnapping. (It also allowed death if the victim was younger than 6, but Adams was 10.) The second confession implied rape and also removed the mention of Adams climbing into the truck by choice.

Middaugh suggested that the prosecutors had come to a realization. “Oh my god,” he said in court, mimicking their thought process. “The law’s been changed and we don’t have this boy accused of kidnapping anybody or raping anybody and we can’t get the death penalty.”

Middaugh’s suspicions didn’t sway the jury, which found Jurek guilty of murder “in the course of committing or attempting to commit kidnapping and/or forcible rape.” They didn’t need to specify.

The trial then moved into its second phase. The Texas Legislature had written that if jurors were going to sentence someone to death, they needed to decide “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” In other words, the jury had to predict the future.

The longtime district attorney of DeWitt County, Wiley Cheatham, brought to the stand a series of community members who said Jurek had a “bad” reputation. He’d been accused in the past, though not convicted, of sexually assaulting several other children. A psychiatrist who had met with Jurek described him as “sociopathic, exhibiting a number of antisocial traits.” Jurek’s father testified that his son had worked—pumping gas, and on oil and construction crews—and gave most of his paycheck to support the family. Neither side presented an especially rich picture, and the jury sided with the prosecution.

Jurek went to death row. Soon after, Middaugh was disbarred over an unrelated ethics issue. So it fell to Emmett Summers—still less than a year out of law school—to prepare Jurek’s appeal. He knew he could not responsibly do this alone, so he looked for help, and he learned that the Legal Defense Fund (LDF), which had grown out of the National Association for the Advancement of Colored People,* was offering assistance to any lawyer with a death row client, regardless of that client’s race. The LDF was eager to swoop in, knowing that the Jurek case might be crucial to the fate of the Texas law, shaping the course of hundreds of future cases. Although Summers continued to be bothered by Jurek’s confessions, the Texas law as a whole, rather than the details of Jurek’s case in particular, became the focal point of his defense, folded into the LDF’s larger, national strategy.

The architect of the LDF’s effort against the death penalty was Anthony Amsterdam. Although not as well-known today as other LDF legends like Thurgood Marshall and Constance Baker Motley, this Jewish law professor was, in his heyday, considered a genius and a workaholic, the sort of person who dictated legal briefs from memory, cited case law by page number, and made his colleagues wonder whether he ever slept. It was Amsterdam who, in 1972, had stood before the Supreme Court and convinced the justices to strike down the entire country’s death penalty laws. (He declined an interview with me, but gave one to Evan Mandery for the 2013 book “A Wild Justice: The Death and Resurrection of Capital Punishment in America” ). He had a particular skill in pulling listeners through dense legal arguments and then rhetorically slamming the brakes. “The figures are perfectly plain,” he said at one such point in the oral argument. “Georgia executes Black people.” Influenced by his arguments, several justices wrote that the death penalty had become cruel and unusual because it was handed down in an arbitrary way, akin to being “struck by lightning.”

Anthony Amsterdam, center, a Stanford University law professor, led a team of lawyers in 1972 to convince the Supreme Court that the death penalty in America should be abolished.

But as the new laws came into effect and the test cases worked their way through the system, Amsterdam led a team of lawyers who divided up the states, planning how to convince the court that all these new laws violated the Constitution as well—and, by extension, that the death penalty in America should be abolished forever.

The Texas law went to Peggy Davis. She had little in common with Jurek, an impoverished, White, intellectually disabled cotton mill worker who’d spent his whole life in rural Texas. Davis came from a middle-class Black family and had become an academic star: In addition to law, she’d studied philosophy and psychoanalysis and even jazz singing before joining the LDF. She was excited to work with Amsterdam, who was one of her personal heroes, and she got to work studying the Texas law, which was a bit of an anomaly.

Most of the new death penalty laws produced by the states fell into two broad categories. Some states set aside a handful of specific crimes—murder of a police officer, for example—and made the death penalty automatic. Other states held a sort of second trial over punishment, in which the jury would hear lawyers present cases for and against death, and consider specific “aggravating” factors (the defendant killed for money, killed lots of people, etc.) and “mitigating” factors (the defendant had no history of violence, suffered from mental illness, etc.).

The Texas law was a hybrid: There was a second trial, but the jury only had to answer three questions: Was the murder deliberate? Was it unprovoked? And might the defendant be a “continuing threat to society”? In most murder cases, the first two questions were already assumed to be yes based on the guilty verdict, so it was the third question, known as the “future dangerousness” question, that mattered most.

Peggy Davis was in charge of researching Texas law in the Legal Defense Fund's efforts against the death penalty in the Supreme Court in 1976.

Because she’d studied psychology, Davis knew there was a whole area of academic literature on predicting who would commit crimes, and she felt it could not be done responsibly. Although Jurek was White, Davis suspected the emphasis on dangerousness would be used to tag Black defendants as especially deserving of death, since they were often perceived, consciously or not, to be more dangerous.

Another problem with the Texas law was that it gave the jury little opportunity to consider evidence that might sway them towards mercy and away from a death sentence—evidence like Jurek’s intellectual disability, or his work ethic, or his love for his family members. But in Texas, because the jury only had to answer three limited questions, they were unable to truly take account of such evidence.

In early 1976, the Supreme Court agreed to hear five cases from five states as a way of ruling on the entire range of death penalty laws that had been passed around the country. Many of the justices’ own clerks were convinced Anthony Amsterdam would lose: surely the court would uphold at least one of the new laws. But there was plenty of room for a partial victory; the court might keep one kind of law while striking down others.

Amsterdam and his team had a difficult strategic choice to make. They could focus on attacking the harsher laws from North Carolina and Louisiana that doled out automatic death penalties and say they restricted the juries’ ability to consider mitigating evidence. The problem with this strategy was that it might nudge the justices to see the laws out of Florida and Georgia, which did allow jurors to weigh evidence more broadly, as acceptable. Amsterdam would in effect be helping to send prisoners in those two states to their executions.

On the other hand, Amsterdam could push the court to strike down all the laws. If he was successful, the death penalty might disappear from the U.S. for good. This was risky: if the court rejected his reasoning, they might uphold all of the new state laws.

Part of the problem was that Amsterdam and the LDF were representing people on death row across numerous states. In order to fight for all of them at the same time, he had to take an all-or-nothing approach. Jerry Jurek was in a way at the center of this legal and intellectual conundrum. If Jurek had his own lawyer, who was looking only to save just his life, the best argument may well have been that the Texas law was too harsh, that the jury who sentenced Jurek had therefore never been given a robust opportunity to weigh whether, given his mental limitations, he perhaps deserved mercy. Might this mean that one lawyer shouldn’t be representing five defendants with five different sets of interests and potential legal strategies? There is no evidence that Amsterdam and his colleagues ever considered this question as they took the more sweeping approach.

Jurek, living in a prison cell 1,600 miles away from the LDF office, could hardly have known he was at the center of this question. Davis, though she was responsible for his case at the LDF, was unable to visit him. “There were conversations about whether you attack the death penalty overall, or whether you attack just the case and do what’s best for Jerry,” Summers, his local lawyer, recalled. Given his mental limitations, “Jerry would not have been able to participate in the conversation.”

As Amsterdam set his strategy for the argument, he relied on Davis and one of her colleagues. They rehearsed arguments, Amsterdam smoking a cigar and working out how to make himself appear reasonable to the justices. Still, Amsterdam did not let the younger lawyers seriously challenge his plans. Not that they would have. “I didn’t feel like I could disagree with Tony,” Davis later said. “He was a phenomenon.”

On the day oral arguments began, in March 1976, dark rain clouds veiled the Supreme Court building. Jerry Lane Jurek v. Texas was argued first, but Amsterdam’s opening was not about Jurek or Texas: he made sweeping arguments about all of the death penalty laws across the country. (A full recording is online .) One justice asked Amsterdam if he thought the death penalty to be cruel and unusual “no matter how serious the offense and no matter how completely a fair trial he may have been given.” Amsterdam said yes. Throughout the argument, the justices continued to give Amsterdam opportunities to compromise—to say some state laws were better than others, or to say that the death penalty could perhaps be preserved for the occasional airplane hijacking or presidential assassination. But he wouldn’t bite.

Instead, Amsterdam argued that every single one of the new laws involved too much human decision-making—prosecutors deciding who to charge, jurors deciding who to sentence, governors deciding whose sentences to commute—and that as a result executions would remain arbitrary.

As an example, he brought up the future dangerousness question in Texas. “The thing that is most devastating is that you can’t even challenge the jury’s finding because the question to which it responds is so meaningless,” Amsterdam said, noting that Jurek had been sentenced to die on the testimony of a few community members who just didn’t seem to like him.

We Are Witnesses

Justice Lewis Powell Jr. wrote down that he found Amsterdam’s views on the Texas law “fairly persuasive.” But as the argument continued and Amsterdam continued to talk abstractly about all the laws, Powell added to his notes, Amsterdam is “not interested in the fairness of procedure in a particular case.”

Another justice pointed out that human decision-making existed throughout the criminal justice system, not just in death penalty cases. Amsterdam responded, “Our argument is essentially that death is different.” He continued, “Death is final, death is irremediable. ... It goes beyond this world. It is a legislative decision to do something and we know not what we do.”

After he finished, he was followed by John Hill, the attorney general of Texas, who pounded Amsterdam as an extremist who was trying to foist his personal opposition to capital punishment on the American people. He pointed out that among 60 reported cases from Texas, the jury had found that 12 defendants would not be a future danger and spared their lives.

After Hill came Robert Bork, the conservative legal scholar. Years later, during his own confirmation hearings for a spot on the Supreme Court, his views would be tagged as too extreme, but for now he was simply representing a majority of Americans—66 percent according to an April 1976 poll—who supported executions. He jumped on the weakest part of Amsterdam’s argument: By saying that human decisions were a problem, he explained, Amsterdam was actually implying the solution would be a law that totally removes human decisions, that is “so rigid and automatic and insensitive that it would be morally reprehensible.”

Then Bork made his most sweeping argument, that the death penalty was a sign of a healthy democracy at work: “These five cases are about democratic government, the right of various legislatures of the United States, to choose or reject—according to their own moral sense and that of their people—the death penalty.”

Amsterdam returned for a final argument. Justice Powell asked him to pick between the five laws: Which would be the most fair in handing out the death penalty?

“None of them is close enough so that I can give a meaningful answer,” Amsterdam said.

More than 30 years later, speaking with the historian Evan Mandery, Amsterdam noted that at this moment he might have chosen to change course completely, and trying to turn the justices against one law in particular, the law that pretended to give juries a choice but restricted that choice so much that it was practically mandatory—the one from Texas.

“Now I know what it’s like to hear Jesus Christ,” William Brennan fumed to his clerks once he returned to his chambers. Brennan was one of the court’s most liberal justices, and he hated the death penalty, but he was angry at Amsterdam for giving up so many opportunities to appear pragmatic. Still, when the justices gathered two days later, Brennan told his colleagues he’d vote to strike down all five laws and keep the death penalty from returning. Thurgood Marshall agreed. At the other extreme were four justices whose support for the death penalty was firm and who wanted to uphold all the laws: Chief Justice Burger, along with Justices Byron White, Harry Blackmun and William Rehnquist.

Associate Justices William Rehnquist and Lewis Powell, shown here shortly after they joined the court in 1972, were tasked several years later with deciding whether new state death penalty laws violated the Constitution.

That left three whose votes were still in question: Lewis Powell, who had challenged Amsterdam during the arguments, along with John Paul Stevens and Potter Stewart. They were all willing to accept the Georgia and Florida laws, but were troubled by the “mandatory” laws in North Carolina and Louisiana. They saw how Texas, with its three questions and talk of future dangerousness, fell awkwardly between the two approaches, and Stevens and Stewart expressed ambivalence about it. Still, the Texas law appeared to command a majority, as did all of the laws except the one in North Carolina.

But all was not settled; Powell was having second thoughts. One of his law clerks had been arguing it was necessary to preserve an element of mercy in the system and believed that both the Louisiana and Texas laws, like the one in North Carolina, restricted that mercy too much. She thought the Texas law was effectively a “mandatory” death penalty.

Powell reached out to Stevens and Stewart. They met for lunch, and their conversation, held at a popular D.C. restaurant called The Monocle, is lost to history . But the issues they must have discussed remain unresolved to this day. The justices seemed to want to let juries make individual decisions about each defendant, while also ensuring their decisions, in aggregate, were not arbitrary. Most Americans are familiar with the idea that ‘the punishment must fit the crime,’ suggesting that two different people who commit the same crime must suffer the same consequences. Many Americans also believe in mercy, that judges and juries should be able to show leniency based on what they learn about the individual person before them. But how should we respond when their decisions fall along lines of race and gender and class that trouble us? In Mandery’s elegant formulation, “a person cannot be both unique and equal.”

The justices emerged with a plan: all three would oppose the Louisiana law and uphold the Texas one. On a Friday morning in July, the court announced that the death penalty would return, upholding the laws in Florida, Georgia, and Texas, and striking down those in Louisiana and North Carolina.

The overall message was that juries should be allowed to choose whether a specific person should receive the death penalty, considering the particulars of the crime (Did the defendant seem especially cruel while committing it? Did he show remorse right away?) and of the defendant (What was his childhood like? Had he struggled with poverty or addiction or mental illness?). Defendants should be treated, in Stewart’s words, as “uniquely individual human beings.” In an early draft of the decision striking down the mandatory law in North Carolina, Stewart wrote that jurors should be able to consider “the frailty of human actors,” but he cut the phrase and replaced it with something a bit more poetic and sweeping: “the diverse frailties of humankind.”

The three justices believed the questions devised by the Texas legislature would allow the jury to weigh these factors. Ironically, it was Rehnquist, a conservative who approved of all the laws, who disagreed. He thought his colleagues were fooling themselves by believing the Texas law would really give juries the opportunity to juries to consider the “diverse frailties of humankind.” The Texas law, he thought, was going to turn out to be just as unwavering as the ‘mandatory’ laws his colleagues had voted to strike down.

In many ways, Rehnquist was proven right by history. Although Florida and Georgia’s laws also proved to have flaws, and the death penalty systems in those states were later challenged for arbitrariness and racial disparities, it was Texas that built the country’s dominant conveyor belt to death row. Texas prosecutors grew adept at using the future dangerousness question to scare jurors into handing out death sentences. They enlisted forensic psychiatrists—one with the nickname “ Dr. Death ”—to make scientifically bogus predictions that defendants would kill again if not sentenced to death.

In 1989, the Supreme Court finally ruled that the state’s law needed to be rewritten, and it was tweaked to allow juries to more fully consider mitigation evidence. But scholars have argued that the continuing emphasis on future dangerousness tends to push jurors away towards picking the death penalty. In 2013, the American Bar Association declared jurors could interpret the concept of future dangerousness “so broadly that a death sentence would be deemed warranted in virtually every capital murder case.” And LDF attorney Peggy Davis’ prediction about race bore out too: By 2000, seven cases had emerged in which an expert witness explicitly predicted that defendants would be dangerous because of their race.

Right after the court ruled, Amsterdam wrote up a request for the justices to reconsider their petitions. Such “petitions for rehearing” are seldom granted, but it was one more opportunity to argue that the Texas law was too harsh, and that Jurek had not been given a robust opportunity to present a case to spare his life. Davis pushed her boss to take this route. She had not slept well in the days after the decision. “Over and over again, during the last week I have thought: What kind of rehearing petition would I write if I represented only Jerry Lane Jurek?” she wrote to Amsterdam in a memo. “And every time I think about that I am troubled because I think that a much stronger attack on the Texas statute could be made.” She thought the Texas law was “unconscionably mandatory” and would not allow a jury to consider the “diverse frailties of humankind” mentioned by the court. Amsterdam did write in his petition that the Texas law was “Draconian” and “forbids the consideration of any but the narrowest factors of mitigation,” but he didn’t fully separate the Jurek case from the others.

Shortly after Justice John Paul Stevens retired, in 2010, he gave an interview and said that after 35 years on the court, there was only a single decision he regretted: Jurek v. Texas. “I think upon reflection, we should have held the Texas statute...to fit under the mandatory category and be unconstitutional,” he told his former colleague Sandra Day O’Connor. “In my judgment we made a mistake on that case.”

Scholars were rough on Amsterdam, calling his legal strategy “ a cautionary tale about cause lawyering ” and his attitude “ tone deaf to the changing tune of the country .” Executions resumed in 1977, ending a decade-long hiatus brought about by the legal battles.

But Davis did not need to worry: Jurek survived. Even after she left the LDF, in 1977, the organization kept fighting his case. A couple of years later, judges on the Fifth Circuit Court of Appeals ruled that his confessions could not have been truly voluntary, especially because Jurek’s “verbal intelligence is limited” and he was “less likely to be able to understand his right to remain silent.” His death sentence was thrown out, and the same year lethal injections began, in 1982, he pled guilty in exchange for a life sentence.

Though his name was attached to one of the most significant moments in the country’s legal history, Jerry Jurek began living out his quiet life in a Texas prison. As his hair turned gray and wispy, he continued to slick it back into the style of his youth. He worked in a prison kitchen—avoiding the dayroom because the televisions and loud fans and shouting prisoners stressed him out—talked to his cellmate, and wrote letters with doodles of cartoon dogs along the bottom of the page. He spoke with a clipped, wised-up drawl, though his mind had departed significantly from reality. “Mine is the one that got everyone off death row,” he recalled incorrectly, during a 2015 interview. He maintained that he was totally innocent of killing Wendy Adams, and was the victim of a conspiracy between his lawyers and multiple local authorities. He said there is a missing document that will prove it, if only someone will go find it in a town called “Eldorado.” “If everything goes right,” he said, “I might be out of here pretty soon.”

Every so often, Jurek would come up for parole, and Brandi Adams Garza, his victim’s little sister, would write a letter to the parole board describing the toll the murder took on her family; her father quit his job as a police officer, and her mother suffered a mental breakdown. “I think that the death penalty was appropriate to start with and, had it been followed through with,” Garza told the Victoria Advocate , “it would have eliminated a lot of stress on my dad, my family, myself, my brother.”

As the death penalty system ground into motion in the late 1970s, the LDF realized its work was only beginning. Every case would now be a smaller battle in a bigger war of attrition. Hundreds of men and women sentenced to death would need lawyers to attack those sentences one by one and stave off execution. Sometimes, their cases would end up back at the Supreme Court, which would be tasked with deciding not whether the death penalty as a whole was constitutional, but rather whether one element of a trial violated a defendant’s rights. The court would go on to rule in ways that both helped and hurt death row prisoners, but the overall effect would be to further entrench the punishment.

There would be a lot of relationships like the one between lawyer Davis and client Jurek. Often the racial dynamic would be flipped, with White lawyers and Black clients. The lawyers would develop arguments and study arcane legal precedents while their clients sat in death row cells for years and years, waiting for the day they might lose their cases and their lives. And what haunted Peggy Davis would haunt the many lawyers who would come after her. They would wonder, as she had wondered: What else could be done?

Adapted from “Let the Lord Sort Them: The Rise and Fall of the Death Penalty,” published by Crown on Jan. 26, 2021.

Rachel Siegel contributed reporting.

Excerpt has been updated to reflect that while the Legal Defense Fund is an outgrowth of the NAACP, it had become a separate organization by the time of the events.

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Maurice Chammah Twitter Email is a staff writer whose book, “ Let the Lord Sort Them: The Rise and Fall of the Death Penalty ”, won the 2019 J. Anthony Lukas Work-In-Progress Book Award. A former Fulbright and H.F. Guggenheim fellow, he has reported on a range of criminal justice subjects, including jail conditions, sheriffs, wrongful convictions, and art by incarcerated people.

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Capital punishment and death row inmates: A research roundup

Our newest research roundup examines capital punishment from multiple angles, including prisoner experiences, factors that affect sentencing and how effectively the death penalty deters crime.

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by Denise-Marie Ordway, The Journalist's Resource May 6, 2019

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Legislators in several states have filed bills aimed at abolishing capital punishment in recent months, as the number of men and women facing death sentences continues to drop nationally and conservative U.S. Supreme Court justices have expressed frustration over delays in carrying out executions .

Meanwhile, several prisoners are scheduled to die this month, including Donnie Edward Johnson , on death row in Tennessee for suffocating his wife in 1984, and serial killer Robert “Bobby” Joe Long , who murdered at least eight women in Florida in the early 1980s.

While more than half of U.S. states and the federal government allow capital punishment, most executions between 1976 and 2017 occurred in five states — Florida, Missouri, Oklahoma, Texas and Virginia, according to the federal Bureau of Justice Statistics.

Men receive the overwhelming majority of death sentences. But more than a dozen women have been executed since 1976, when the U.S. Supreme Court lifted a moratorium on capital punishment.

While most death row prisoners die by lethal injection, many states allow other methods such as electrocution, hanging and firing squad. All executions in 2017, the most recent year for which the federal government provides data, were by lethal injection. A 2018 report from the U.S. Department of Justice offers a broad overview of the nation’s various capital punishment policies as well as a state-by-state tally of death row inmates and executions.

States that authorize capital punishment often post online rosters of their death row inmates. The roster for the Florida Department of Corrections, for example, shows there were 342 people on death row there as of early May 2019. In Idaho, there were eight .

Below, we’ve summarized 14 academic studies about capital punishment to help journalists ground their coverage and better understand the issue. This sampling of peer-reviewed research looks at capital punishment from multiple angles, including inmate experiences on death row, factors that affect sentencing and shifts in public opinion about the death penalty. We’ve also included several studies on prisoners’ last words.

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Impact of the news media

Disentangling Victim Gender and Capital Punishment: The Role of Media Phillips, Scott; Haas, Laura Potter; Coverdill, James E. Feminist Criminology , 2012.

This study of capital punishment cases in Texas suggests that the Houston Chronicle ’s news coverage of murder cases influenced prosecutors’ decisions about whether or not to seek the death penalty.

The researchers analyzed the criminal cases of 504 defendants indicted for capital murder in Harris County, Texas between 1992 and 1999. They discovered that 139 of the victims were female, 31 of whom were subject to “sexual degradation,” meaning they were either raped or raped and also “disrobed.” They also examined the newspaper’s coverage of these cases.

The researchers find that “sexual degradation shapes media coverage.” Cases that did not involve sexual degradation prompted 2.8 news articles each, on average, prior to the defendant’s indictment. If a victim was raped but not disrobed, the case generated an average of 4.4 articles. If the victim was raped and disrobed, the newspaper published an average of 14.7 articles about each case.

The analysis, according to the authors, shows that the district attorney “sought death in 9 of the 19 sexual degradation cases that generated 0 to 3 newspaper articles, compared to 11 of the 12 sexual degradation cases that generated 4 or more newspaper articles. Thus, sexual degradation alone — in the absence of intense media coverage — does not necessarily move the DA [district attorney] to seek death. But sexual degradation cases that catch the eye of the media also catch the eye of the DA. The data strongly suggest that the DA is aware of, and responsive to, media coverage of pending capital murder cases.”

Factors affecting sentencing

How Defendants’ Legal Status and Ethnicity and Participants’ Political Orientation Relate to Death Penalty Sentencing Decisions Alvarez, Mauricio J.; Miller, Monica K. Translational Issues in Psychological Science , 2017.

For this study, researchers sought to determine whether U.S. adults would punish a criminal defendant differently based on characteristics such as the defendant’s race, ethnicity and immigration status. The researchers recruited 300 U.S. citizens to read a 2,500-word summary of a mock murder trial and then asked them to decide whether to sentence the mock defendant, already found guilty of murder, to death or life in prison. Each participant also answered questions aimed at measuring their political orientation and other factors that might influence their decision-making, including their level of anti-immigrant bias.

Overall, survey participants gave harsher sentences to immigrant defendants than they did to defendants described as being born in the U.S. But sentencing decisions were influenced by participants’ political orientation. “More liberal and middle of the road participants viewed documented immigrant defendants as more deserving of the death penalty, compared to U.S. born defendants,” the authors write. On the other hand, more conservative participants “viewed documented immigrant defendants as being similarly deserving of the death penalty compared to U.S. born defendants.”

The researchers note that when they compared documented immigrant mock defendants with those who were naturalized citizens, “more liberal participants viewed documented immigrant defendants as more deserving of the death penalty than naturalized citizen defendants, while middle of the road and more conservative participants viewed both defendants as being similarly deserving of the death penalty.”

Possibility of Death Sentence Has Divergent Effect on Verdicts for Black and White Defendants Glaser, Jack; Martin, Karin D.; Kahn, Kimberly B. Law and Human Behavior , 2015.

Researchers conducted a national, web-based survey of a random sample of 276 U.S. adults to determine whether respondents would choose harsher sentences for black or white defendants on trial for murder. Respondents were asked to read a 1,185-word, four-page trial summary outlining the facts of a mock murder case, which was based on transcripts from actual murder trials in California. Survey participants — half were women and the vast majority were white — had to choose to convict or acquit the defendant.

Participants were given a version of the trial summary, which differed in two ways. In some versions, the defendant faced a death sentence while in others, he faced life in prison without the possibility of parole. Defendants were given “first names stereotypically associated with Blacks (Darnel, Lamar, Terrell) or Whites (Andrew, Frank, Peter).”

The main takeaways: Participants chose to convict nearly 73.9% of defendants whose names were associated with black men and 60.9% of defendants with names associated with white men. When study participants read the version of the case featuring a defendant facing a death sentence, they chose to convict 80% of defendants with black-sounding names and 56.5% of defendants with white-sounding names.

The authors write that their findings “indicate that, not only are potential jurors influenced by punishment severity, but defendant race alters how they are swayed — with deleterious outcomes for Black defendants. The demonstration that sentence severity, specifically, the possibility of a death sentence, has a qualitatively different effect on verdicts for ostensibly Black and White defendants is novel.”

Predictors of Death Sentencing for Minority, Equal, and Majority Female Juries in Capital Murder Trials Richards, Tara N.; et al. Women & Criminal Justice , 2016.

This study looks at the link between jury decisions in capital offense cases and the sex composition of juries in North Carolina between 1977 and 2009. It finds that juries with an equal number of male and female members “were associated with a 65% increase in the odds of recommending the death penalty.” When juries had seven or more female members, the odds of recommending a death sentence fell by 32%. The researchers did not find a statistically significant relationship between male-majority juries and sentencing decisions.

No Sympathy for the Devil: Attributing Psychopathic Traits to Capital Murderers Also Predicts Support for Executing Them Edens, John F.; et al. Personality Disorders: Theory, Research, and Treatment , 2013.

The personality traits that defendants exhibit during capital murder trials influence whether or not laypeople think they deserve the death penalty, this study suggests. “A defendant’s perceived lack of remorse in particular was influential, although perceptions of grandiose self-worth and a manipulative interpersonal style also contributed incrementally to support for a death sentence,” the authors write.

Researchers examined data from three studies — two published and one unpublished — to determine whether defendants’ personality traits affect attitudes about capital punishment. In all three studies, students recruited from a university in the southern U.S. were asked to choose a criminal sentence for a mock defendant after reading a summary of a mock murder trial. The higher the students rated the defendant on a “global psychopathy” scale, the more likely they were to choose a death sentence.

The researchers write that the results “inform how perceptions of socially undesirable personality traits relate to attitudes about the sanctioning of criminals, particularly murderers facing a possible death sentence. Our findings converge with other research … suggesting that perceived lack of remorse carries considerable weight in terms of influencing legal decision-makers.”

Public support for capital punishment

Racial-Ethnic Intolerance and Support for Capital Punishment: A Cross-National Comparison Unnever, James D.; Cullen, Francis T. Criminology , 2010.

This study finds that citizens of several European countries, including France, Great Britain and Spain, were more likely to support capital punishment if they were intolerant of racial and ethnic minorities.

The researchers analyzed a variety of surveys conducted in European nations between 1992 and 2006.

The main takeaway: “In France, Belgium, the Netherlands, East and West Germany, Italy, Luxembourg,  Denmark, Great Britain, Greece, Spain, Finland, Sweden, Austria, and Canada, individuals  who were racially and ethnically intolerant — expressing animus toward immigrants — were significantly  and substantively more likely to support the death penalty. In two countries, Portugal and Ireland, racial-ethnic intolerance did not positively predict support for either the death penalty or more general punitive attitudes,” the authors write.

The researchers also find that European youth with anti-immigrant attitudes were more likely to support capital punishment.

To Execute or Not to Execute? Examining Public Support for Capital Punishment of Sex Offenders Mancini, Christina; Mears, Daniel P. Journal of Criminal Just ice, 2010.

In this study, researchers examine whether the public agreed with a move by states in the 1990s to extend the death penalty to convicted sex offenders.

The researchers find, based on an analysis of a 1991 national telephone poll of 1,101 people, that the public’s views on punishing sex crimes with the death penalty depended on whether the victim was an adult or child. According to the opinion poll, conducted by the Minneapolis Star Tribune , 27% of Americans supported capital punishment for offenders who raped an adult while 51% favored it for offenders who sexually abused a child.

The researchers also find that people who believe sex offenders are prone to recidivism and that the criminal justice system does not do enough to address sex crime were more likely to support the death penalty for sex offenders.

“Vicarious experiences with sexual victimization — that is, knowing someone who was victimized — was associated with decreased support for executing such offenders,” the authors write.

As a crime deterrent

What Do Panel Studies Tell Us About a Deterrent Effect of Capital Punishment? A Critique of the Literature Chalfin, Aaron; Haviland, Amelia M.; Raphael, Steven. Journal of Quantitative Criminology , 2013.

Researchers analyzed multiple published studies to try to gauge how effectively capital punishment deters homicide. What they learned: the academic literature is inconclusive.

“First, we believe that the empirical research in these papers is under-theorized and difficult to interpret,” the authors write. “Second, many of the papers purporting to find strong effects of the death penalty on state-level murder rates suffer from basic methodological problems.”

The authors also note the difficulty of studying the effects of the death penalty, considering states generally execute only a few people per year.

Assumptions Matter: Model Uncertainty and the Deterrent Effect of Capital Punishment Durlauf, Steven N.: Fu, Chao; Navarro, Salvador. American Economic Review , 2012.

In this article, researchers look at some of the reasons why it’s still unclear whether capital punishment policies deter homicide. They examine how previous researchers’ assumptions about homicide influenced estimates for the number of lives saved when a convicted murderer is executed.

The authors’ explanation is technical and focuses on statistical modeling. “Depending on the model, one can claim that an additional criminal executed induces 63 additional murders or that it saves 21 lives,” the authors write. “This demonstrates the ease with which a researcher can, through choice of modeling assumptions, produce evidence that each execution either costs many lives or saves many lives.”

Inmate experiences on death row

Suicide on Death Row Tartaro, Christine; Lester, David. Journal of Forensic Sciences , 2016.

While death row inmates in the U.S. are supposed to be closely supervised, they are more likely to commit suicide than male prisoners who aren’t serving death sentences. They also are more likely to commit suicide than males over age 15 who are not incarcerated, according to this study.

From 1977 to 2010, there were an average of 2.74 suicides a year on death row. The average suicide rate was 129.70 deaths per 100,000 death row inmates. For state prison inmates not facing execution, the suicide rate was 17.41 deaths per 100,000 inmates, on average. And for males over age 15, it was 24.62 deaths per 100,000 people.

The researchers note that suicide rates for death row inmates and males in the general prison population have fallen gradually since the late 1970s. They also note that the suicide rate among death row inmates is lower during years when a greater number of death row inmates are executed.

Wasted Resources and Gratuitous Suffering: The Failure of a Security Rationale for Death Row Cunningham, Mark D.; Reidy, Thomas J.; Sorensen, Jon R. Psychology, Public Policy, and Law , 2016.

This study focuses on the behavior of death row inmates who were “mainstreamed” into the general prison population at a high-security prison in Missouri between 1991 and 2015. Elsewhere in the U.S., prisoners with death sentences tend to be segregated from other prisoners and placed in “supermaximum confinement” at a high cost to taxpayers.

The key takeaways: Over the 25-year period, not only were death row inmates as likely as or less likely than other prisoners to be involved in “assaultive misconduct,” but rates of violence among death row inmates were lower after they were mainstreamed than they had been when prisoners were segregated on death row.

“Because the CP [Capital Punishment] inmate has a limited life expectancy, he is arguably particularly motivated to make those remaining days as positive for himself as possible,” the authors write. “Rather than having ‘nothing to lose,’ the CP inmate may pragmatically recognize he has more at stake in each day and thus more to gain or lose by his conduct.”

A Review on Time Perception of Death Row Inmates’ Denials in Their Last Statements in the Context of Forensic Linguistics: The Sample of Texas Huntsville Unit Uysal, Basak. Journal of Death and Dying , 2018.

This study examines the last statements of 537 death row inmates executed in Texas between 1982 and 2016. A key takeaway: Seventy inmates used their final words to deny they committed the crimes with which they’d been convicted while 108 chose not to say or write anything at all. “The main topics reflected by the denier offenders are defense, love, wishing, and sadness, and the topics reflected less are atonement, forgiveness, and ending,” the author writes.

Those who gave last statements used 102 words, on average. Inmates who denied their crimes used an average of 138 words. The shortest statement is one sentence while the longest comprises 134 sentences. The most educated inmates “talk less and use fewer words.”

The Functional Use of Religion When Faced with Imminent Death: An Analysis of Death Row Inmates’ Last Statements Smith, Ryan A. The Sociological Quarterly , 2018.

This analysis of death row inmates’ final statements focuses on the use of religious words and phrases. This researcher also examined the last words of the 537 death row inmates sentenced to die in Texas between 1982 and 2016. Of the 429 inmates who gave oral last statements, more than 6 out of 10 expressed themselves using religious sentiments, which “challenge the stereotyped image of the hardened, unrepentant death row inmate,” the author writes.

The author states that the study “deepens our understanding of the manner in which death row inmates use religion to cope with imminent death.” But he also points out that some people may question the authenticity of their final words, which are “solicited under artificial circumstances because statements are made moments before execution when the inmate is strapped to a gurney in front of witnesses.”

Of note: Inmates’ final statements became more religious after 1996, when Texas began allowing victims’ families and close friends to witness executions and hear last statements.

Forgiveness, Spirituality and Love: Thematic Analysis of Last Statements from Death Row, Texas (2002–17) Foley, S.R.; Kelly, B.D. QJM: An International Journal of Medicine , 2018.

For this study, researchers examined the final statements of the 70 inmates executed in Texas between 2011 and 2017, 61 of whom gave oral last statements. All Hispanic inmates made last statements, compared with 92% of black inmates and 70.8% of white inmates. On average, prisoners had less than 10 years of education and their median age was 40.5 years.

The most common theme in statements was love followed by spirituality, the researchers find. Third most common was an apology to the victim’s family, which was included in 30% of statements. Meanwhile, 16% of prisoners apologized to their own families, 11% asked for forgiveness and 10% denied committing the offense for which they were executed. Nobody quoted poetry or literature, the researchers note.

Less than half as many inmates asked for forgiveness in their final statements as had done so in earlier years. Between 2002 and 2006, according to the study, 32% of prisoners asked for forgiveness before their execution. Between 2006 and 2011, 25% did.

Looking for more research on prison inmates? Check out our collection of government reports and academic papers that help paint a picture of the men, women and children who are in custody nationwide. We’ve also summarized research that looks at private prisons , which inmates get the most visitors and whether more educated adults receive shorter prison sentences .

About The Author

Denise-Marie Ordway

Sentenced to death, but innocent: These are stories of justice gone wrong.

Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them.

A version of this story appears in the March 2021 issue of National Geographic magazine.

A 63-year-old man named Kwame Ajamu lives walking distance from my house in a suburb of Cleveland, Ohio. Ajamu was sentenced to death in 1975 for the murder of Harold Franks, a money order salesman on Cleveland’s east side. Ajamu was 17 when he was convicted.

Ajamu, then named Ronnie Bridgeman, was found guilty primarily because of the testimony of a 13-year-old boy, who said he saw Bridgeman and another young male violently attack the salesman on a city street corner. Not a shred of evidence, forensic or physical, connected Bridgeman to the slaying. He had no prior criminal record. Another witness testified that Bridgeman was not on the street corner when Franks was killed. Yet mere months after his arrest, the high school junior was condemned to die.

It would be publicly revealed 39 years later that the boy who testified against him had immediately tried to recant his statement. But Cleveland homicide detectives told the boy they would arrest and charge his parents with perjury if he changed his story, according to his later court testimony. Ajamu was released on parole in 2003 after 27 years in prison, but the state of Ohio would not declare him innocent of the murder for nearly another 12 years, when the boy’s false statement and police misconduct were revealed in a related court hearing.

I interviewed Ajamu and others who represent vastly different backgrounds but share a similar, soul-crushing burden: They were sentenced to death after being convicted of crimes they didn’t commit.

(*Figures in all captions are rounded to the nearest year and don’t include time in jail pre-sentencing.)  

The daily paths they travel as former death-row inmates are every bit as daunting, terrifying, and confusing as the burden of innocence that once taunted them. The post-traumatic stress faced by a wrongly convicted person who has awaited execution by the government doesn’t dissipate simply because the state frees the inmate, apologizes, or even provides financial compensation—which often is not the case.

For Hungry Minds

The lesson is as charged as superbolt lightning: An innocent man or woman sentenced to die is the perfect witness against what many see as the inherent immorality and barbarity of continuing capital punishment.

It’s a particularly poignant lesson in a nation that executes people at a rate outpaced by few others—and where factors such as a defendant’s or victim’s race, low income, or inability to counter overly zealous police and prosecutors can put the accused at increased risk of a wrongful conviction that could lead to execution. Race is a particularly strong determinant: As of April 2020, Black people made up more than 41 percent of those on death row but only 13.4 percent of the U.S. population.

During the past three decades, groups such as the Innocence Project have shed light on how dangerously fallible the U.S. justice system can be, particularly in capital cases. DNA testing and scrutiny of actions by police, prosecutors, and public defenders have helped exonerate 182 people from death row since 1972, and as of December 2020 had led to more than 2,700 exonerations overall since 1989.

Each of the former death-row inmates I interviewed belongs to an organization called Witness to Innocence . Based in Philadelphia since 2005, WTI is a nonprofit led by exonerated death-row inmates. Its primary goal is to see the death penalty abolished in the U.S. by shifting public opinion on the morality of capital punishment.

During the past 15 years, WTI’s outreach targeting the U.S. Congress, state legislatures, policy advisers, and academics has been credited with helping to abolish the death penalty in several states, though it remains legal in 28 states, the federal government, and the U.S. military. In 2020, 17 people were executed in the U.S., 10 by the federal government. It was the first time more prisoners were executed by the federal government than by all of the states combined.

“I was abducted by the state of Ohio when I was 17 years old,” Ajamu began our conversation when we met on my backyard patio.

“I was a child when I was sent to prison to be killed,” Ajamu, now chairman of WTI’s board, told me. “I did not understand what was happening to me or how it could happen. At first I begged God for mercy, but soon it dawned on me that there would be no mercy coming.”

The day Ajamu arrived at the Southern Ohio Correctional Facility, a maximum-security prison in rural Ohio, he was escorted to a cellblock filled with condemned men. At the end of death row was a room that held Ohio’s electric chair. Before the guards put him in his cell, they made a point of walking him past that room.

“One of the guards really wanted me to see that chair,” Ajamu recalled. “I’ll never forget his words: ‘That’s gonna be your hot date.’ ”

From the time Ajamu was sentenced to die until 2005—when the U.S. Supreme Court ruled that executing juveniles violated the Constitution’s ban on cruel and unusual punishment—the nation executed 22 people who were convicted of a crime committed when they were under age 18, according to the Death Penalty Information Center (DPIC) .

The high court’s ruling countered a history of executing juveniles that began long before the United States was conceived. The first known case of a juvenile executed in the British colonies was in 1642 in the Plymouth Colony, where Thomas Granger, 17, was hanged. His alleged offense was sodomy with livestock.

In the earliest days of the nation, even younger children were subject to the harshest of all judicial penalties. Hannah Ocuish, 12, a Native American girl, was hanged in New London, Connecticut, in 1786 for murder. Two enslaved boys—a 12-year-old convicted of murder and a 13-year-old convicted of arson—were hanged in Virginia in 1787 and 1796, respectively.

For most of the next 200 years, age was ignored as a factor in sentencing. Juveniles and adults alike were tried, convicted, and executed based on their crimes, not their maturity. Available criminal records don’t cite the age of the executed regularly until around 1900. By 1987, when the U.S. Supreme Court first agreed to consider the constitutionality of the death penalty for minors, some 287 juvenile executions had been documented. When the Supreme Court ruled in 1978 that Ohio’s death penalty law violated the Eighth Amendment’s ban on cruel and unusual punishment, as well as the 14th Amendment’s requirement of equal protection under the law, Ajamu’s death sentence was reduced to life in prison. Still, he lingered behind bars for another quarter of a century, when he was released on parole. He wouldn’t be exonerated until 2014, after a crusading reporter for a Cleveland magazine and the Ohio Innocence Project helped unravel the lie that had sent Ajamu to death row.

“There is a wide array of blunders that can cause erroneous convictions in capital cases,” said Michael Radelet, a death penalty scholar and sociologist at the University of Colorado Boulder. “Police officers might secure a coerced or otherwise false confession. Prosecutors occasionally suppress exculpatory evidence. Sometimes there is a well-intentioned but mistaken eyewitness identification. Most common is perjury by prosecution witnesses.”

Few opponents of capital punishment summarize the case against state-sponsored executions more bluntly than Sister Helen Prejean, co-founder of WTI and author of Dead Man Walking, the best-selling book that inspired the 1995 film of the same title, starring Susan Sarandon and Sean Penn.

The plainspoken nun described how her animus toward the death penalty became personal by recalling her fear of a fairly routine dental experience she underwent years ago.

“I had to have a root canal on a Monday morning,” she told me. “The whole week before that root canal, I dreamt about it. As the appointment got closer, the more nervous I became.”

She continued, “Now imagine anticipating your scheduled appointment to be put to death. The six people that I’ve accompanied onto death row all had the same nightmare. The guards were dragging them from their cells. They cry for help and struggle. Then they wake up and realize that they are still in their cells. They realize it’s just a dream. But they know that one day the guards are really going to come for them, and it won’t be a dream. That’s the torture. It’s a torture that as of yet our Supreme Court refuses to recognize as a violation of the Constitution’s prohibition against cruel and unusual punishments.”

More than 70 percent of the world’s nations have rejected the death penalty in either law or practice , according to the DPIC. Of the places where Amnesty International has recorded recent executions, the U.S.—which has the highest incarceration rates in the world—was one of just 13 countries that held executions every one of the past five years. Americans’ support for capital punishment has dropped significantly since 1996, when 78 percent supported the death penalty for people convicted of murder. By 2018, support had fallen to 54 percent, according to the Pew Research Center.

“If I were to be murdered,” wrote Prejean, “I would not want my murderer executed. I would not want my death avenged— especially by government —which can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill.”

Before Ray Krone was sentenced to die, his life bore no resemblance to Ajamu’s. From tiny Dover, Pennsylvania, Krone was the eldest of three children and a typical small-town American boy. Raised a Lutheran, he sang in a church choir, joined the Boy Scouts, and as a teenager was known as a fairly smart kid, a bit of a prankster. He pre-enlisted in the Air Force during high school; after graduating, he served for six years.

Having received an honorable discharge, he stayed in Arizona and went to work for the U.S. Postal Service, a job he planned to keep until retirement.

That career dream—and his life—were abruptly shattered in December 1991, when Kim Ancona, a 36-year-old bar manager, was found stabbed to death in the men’s bathroom of a Phoenix lounge that Krone frequented.

Police immediately zeroed in on Krone as a suspect after learning that he’d given Ancona, whom he knew casually, a ride to a Christmas party a few days earlier. The day after her body was discovered, Krone was ordered to provide blood, saliva, and hair samples. A dental cast of his teeth also was created. The next day he was arrested and charged with aggravated murder.

Investigators said the distinctive misalignment of Krone’s teeth matched bite marks on the victim’s body. Media reports would soon derisively refer to Krone as the “snaggletooth” killer. As was the case with Ajamu, there was no forensic evidence linking Krone to the crime. DNA was a fairly new science, and none of the saliva or blood collected at the crime scene was tested for DNA. Simpler blood, saliva, and hair tests were inconclusive. Exculpatory evidence was available but ignored, such as shoe prints found around the victim’s body that didn’t match the size of Krone’s feet or any shoes he owned.

Based on little more than the testimony of a dental analyst who said the bite marks on the victim’s body matched Krone’s misaligned front teeth, a jury found Krone guilty. He was sentenced to death.

“It’s a devastating feeling when you recognize that everything you’ve ever believed in and stood for has been taken away from you, and without just cause,” Krone told me. “I was so naive. I didn’t believe this could actually happen to me. I had served my country in uniform. I worked for the post office. I wasn’t perfect, but I had never been in trouble. I’d never even gotten a parking ticket, but here I was on death row. That’s when I realized that if it could happen to me, it could happen to anyone.”

The Maricopa County Attorney’s Office spent upwards of $50,000 on the prosecution, centered on its bite-mark theory, while the consulting dental expert for Krone’s publicly funded defense was paid $1,500. This discrepancy in resources available to prosecutors and defendants in capital cases has long been replicated across the nation, leading to predictable outcomes for defendants staked to under-resourced and often ineffective legal counsel.

Krone got a new trial in 1995, when an appeals court ruled that prosecutors had wrongly withheld a videotape of the bite evidence until the day before the trial. Again, he was found guilty. Prosecutors relied on the same dental analysts who’d helped convict Krone the first time. But this time the sentencing judge ruled that a life sentence was appropriate, not death.

Krone’s mother and stepfather refused to give up on their belief in their son’s innocence. They mortgaged their house, and the family hired their own lawyer to look into the physical evidence collected during the original investigation. Over objections by the prosecution, a judge granted a request by the family’s lawyer to have an independent lab examine DNA samples, including saliva and blood from the crime scene.

In April 2002 the DNA test results showed that Krone was innocent. A man named Kenneth Phillips, who lived less than a mile from the bar where Ancona was killed, had left his DNA on clothes Ancona had been wearing. Phillips was easy to find: He already was in prison for sexually assaulting and choking a seven-year-old girl.

When Krone was released from prison four days after the DNA test results were announced, he became known as the hundredth man in the United States since 1973 who’d been sentenced to death but later proved innocent and freed.

Gary Drinkard was no choirboy. He’d had prior brushes with the law when Dalton Pace, a junk dealer, was robbed and killed in Decatur, Alabama, in August 1993.

Police arrested Drinkard, then 37, two weeks later when Beverly Robinson, Drinkard’s half sister, and Rex Segars, her partner, struck a deal with police that implicated Drinkard in the slaying. Facing unrelated robbery charges that also potentially implicated Drinkard, the couple agreed, in exchange for the charges being dropped against them, to cooperate with police and testify that Drinkard told them he’d killed Pace.

When I spoke with Drinkard, he reminded me of a weather-beaten man straight out of a Merle Haggard song. He wore coveralls and chain-smoked Newports. He spoke slowly and guardedly in a deep southern drawl. He grew exasperated only when I asked him to describe his time on death row.

“I thought they were going to kill me,” Drinkard said. That certainly seemed to be the plan. Using testimony from their star witnesses (the half sister and her partner), prosecutors hammered home the alleged confession while improperly influencing the jury with references to Drinkard’s alleged involvement in those earlier thefts. Drinkard’s public defenders, who had no experience in capital cases and very little in criminal law, mostly stood mute. They made no real attempt to introduce evidence that could have proved their client’s innocence. Drinkard was found guilty in 1995 and sentenced to death. He would spend close to six years on death row.

In 2000 the Supreme Court of Alabama ordered a new trial because of the prosecution’s introduction of Drinkard’s criminal history.

“Evidence of a defendant’s prior bad acts … is generally inadmissible. Such evidence is presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged,” the court wrote in granting a new trial.

Drinkard’s case had drawn the attention of the Southern Center for Human Rights, an organization that fights capital punishment. It provided him with legal counsel. At Drinkard’s 2001 retrial, his lawyers introduced evidence that indicated Drinkard was suffering from a debilitating back injury and was heavily medicated at the time of the slaying. Drinkard’s lawyers argued that he had been at home and on workers’ compensation when Pace was killed, so he couldn’t have committed the crime. A county jury found Drinkard not guilty within one hour, and he was released.

“I was not opposed to capital punishment until the state tried to kill me,” Drinkard said.

There have been more than 2,700 exonerations overall in the U.S. since 1989, the first year that DNA became a factor, according to the National Registry of Exonerations.

In 1993 Kirk Bloodsworth was the first person in the nation to be exonerated from death row based on DNA evidence. Bloodsworth was arrested in 1984 and charged with raping and murdering Dawn Hamilton, a nine-year-old girl, near Baltimore, Maryland. Police were alerted to Bloodsworth, who had just moved to the area, when an anonymous tipster reported him after seeing a televised police sketch of the suspect.

Bloodsworth bore little resemblance to the suspect in the police sketch. No physical evidence linked him to the crime. He had no prior criminal record. Yet Bloodsworth was convicted and sentenced to death based primarily on the testimony of five witnesses, including an eight-year-old and a 10-year-old, who said they could place him near the murder scene. Witness misidentification is a factor in many wrongful convictions, according to the DPIC.

“Give him the gas and kill his ass,” Bloodsworth recalled people in the courtroom chanting after he was sentenced. All the while, he wondered how he could be sentenced to die for a ghastly crime he hadn’t committed.

He was granted a second trial nearly two years later, after it was shown on appeal that prosecutors had withheld potentially exculpatory evidence from his defense, namely that police had identified another suspect but failed to pursue that lead. Again, Bloodsworth was found guilty. A different sentencing judge handed Bloodsworth two life sentences, rather than death.

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“I had days when I was giving up hope. I thought I was going to spend the rest of my life in prison. And then I saw a copy of Joseph Wambaugh’s book,” Bloodsworth said.

That 1989 book, The Blooding, describes the then emerging science of DNA testing and how law enforcement had first used it to both clear suspects and solve a rape and murder case.

Bloodsworth wondered whether that science could somehow clear his name.

When he asked whether DNA evidence could be tested to prove that he was not at the crime scene, he was told the evidence had been destroyed inadvertently. That wasn’t true. The evidence, including the girl’s underwear, later was found in the courthouse. Prosecutors, sure of their case, agreed to release the items.

Once the items were tested, usable DNA was detected—none of it Bloodsworth’s. He was freed, and six months later, in December 1993, Maryland’s governor granted him a full pardon. It would be almost another decade before the actual killer was charged. The DNA belonged to a man named Kimberly Shay Ruffner, who had been released from jail two weeks before the girl’s murder. For a time Ruffner, who was given a 45-year sentence for an attempted rape and attempted murder soon after Bloodsworth’s arrest, and Bloodsworth were housed in the same prison. Ruffner pleaded guilty to Hamilton’s murder and was sentenced to life in prison.

Today Bloodsworth is the executive director of WTI and a tireless campaigner against capital punishment. The Innocence Protection Act, signed into law by President George W. Bush in 2004, established the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program to help defray the cost of DNA testing after conviction.

“I was poor and had only been in the Baltimore area for 30 days when I was arrested,” said Bloodsworth, now 60. “When I tell people my story and how easy it is to be convicted of something of which you’re innocent, it often causes them to rethink the way the criminal justice system works. It doesn’t require much of a stretch to believe that innocent people have been executed.”

Sabrina Butler discovered that Walter, her nine-month-old son, had stopped breathing shortly before midnight on April 11, 1989. An 18-year-old single mother, Butler responded with urgent CPR. When the child could not be revived after several minutes, she raced him to a hospital in Columbus, Mississippi, where he was pronounced dead on arrival. Less than 24 hours later she was charged with murder.

Walter had serious internal injuries when he died. Butler told police investigators she believed that the injuries were caused by her efforts to revive him. Police doubted her story, and after several hours of interrogation, without a lawyer present, she signed a statement that said she’d struck her baby in the stomach after he wouldn’t stop crying. Eleven months later Butler was convicted of murder and sentenced to die.

Butler’s defense team called no witnesses. A medical expert might have testified that Walter’s injuries were consistent with the clumsy CPR of a desperate mother. A neighbor—who was called as a witness during a subsequent trial—could have provided helpful testimony of Butler’s attempts to save her son’s life. Instead Butler’s court-appointed lawyers, including one who specialized in divorce law, neither called witnesses nor put Butler on the witness stand to support her case.

“Here I was, this young Black child in a room full of white adults,” Butler, now Sabrina Smith, recalled. “I did not understand the proceedings. All that I had been told by my attorneys was to sit quietly and look at the jury. When I realized my defense wasn’t going to call any witnesses to help prove my innocence, I knew my life was over.”

Butler’s conviction and sentence were set aside in August 1992, after Mississippi’s supreme court ruled that the prosecutor had improperly commented on her failure to testify at trial. A new trial was ordered.

The second trial, with better lawyers, working pro bono, resulted in exoneration. A neighbor testified about Butler’s frantic attempts to revive her child. A medical expert testified that the child’s injuries could have resulted from the CPR efforts. Evidence also was introduced indicating that Walter had a preexisting kidney condition that likely contributed to his sudden death. Butler was released after spending five years in prison, the first half of that on death row.

Less than two years after her exoneration, Butler, the first of just two American women ever to be exonerated from death row, received a summons for jury duty.

“I was so appalled,” she told me. “I went downtown and spoke to the court administrator. I explained to him that the state of Mississippi had tried to kill me. I told him I was quite certain that I would not make a good juror.” She was dismissed.

A question that frequently confounds exonerees and the general public alike is whether a consistent formula exists for compensating the falsely convicted, especially those sentenced to die. The short answer is no. A small number of exonerees have been compensated for millions of dollars depending on the laws of the state that convicted them, but many receive little or nothing.

Few death-row exonerees more closely follow the issue of compensation than Ron Keine, who lives in southeastern Michigan. Keine has made it part of his life’s mission to improve the plight of the wrongly convicted, who often reenter society with meager survival skills. He wasn’t always so benevolent.

Growing up in Detroit, Keine ran with a rough crowd. He’d been shot and stabbed before he turned 16. At age 21, he and his closest friend, who both belonged to a notorious motorcycle club, decided to drive a van across the U.S.

The extended open-road party was going as planned until he and four others were arrested in 1974 in Oklahoma and extradited to New Mexico, where they were charged with the murder and mutilation of a 26-year-old college student in Albuquerque. A motel housekeeper reported that the group raped her and that she then saw the group kill the student at the same motel.

The problem with the story should have been readily apparent. The bikers weren’t in Albuquerque when William Velten, Jr., the student, was killed. They were partying in Los Angeles and had a dated traffic citation to prove it. The housekeeper later recanted her story.

In September 1975 a drifter, Kerry Rodney Lee, confessed to killing Velten, possibly because he felt guilty knowing that four men were on death row for his crime. The gun used in Velten’s slaying matched a gun stolen from the father of Lee’s girlfriend. Based on this evidence, Keine and his biker friends were granted new trials and the prosecutor decided not to indict them. Lee was convicted in May 1978 of murdering Velten.

“When I was on death row, I knew I was innocent, but I still came within nine days of my first scheduled execution date,” said Keine, now 73. “I didn’t have a voice. So when I got out, I decided I was going to spend my life being a thorn” in the side of the criminal justice system. “I decided that I was going to go from dead man walking to dead man talking.”

Keine, who founded several successful small businesses after his exoneration, has testified before state legislators seeking to overturn capital punishment laws. Having received only a $2,200 settlement from the county that put him on death row, he has been vocal in calling for a system of compensation for others wrongly sentenced to death.

“When people get off death row, they feel like a piece of shit,” he said. “They don’t have any self-worth—no self-esteem, and they usually don’t have two nickels in their pocket. We try to build them up. We try and help them find the resources they need to survive.”

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Article contents

Capital punishment, closure, and media.

• Jody Madeira Jody Madeira Maurer School of Law, Indiana University
• https://doi.org/10.1093/acrefore/9780190264079.013.20
• Published online: 22 November 2016

In contemporary society, “closure” refers to “end to a traumatic event or an emotional process” (Berns, 2011, pp. 18–19)—and, in the more specific context of capital punishment, controversy over what, if anything, is needed for murder victims’ families to attain healing and finality or move forward with their lives, including the execution of their loved one’s killer. The term is highly politicized, and is used by both death penalty advocates and its opponents to build arguments in favor of their respective positions. Closure has been indelibly linked to both capital punishment and media institutions since the late 1990s and early 2000s. The media’s penchant for covering emotional events and its role in informing the American public and recording newsworthy events make it perfectly suited to construct, publicize, and reinforce capital punishment’s alleged therapeutic consequences. Legal and political officials also reinforce the supposed link between closure and capital punishment, asking jurors to sentence offenders to death or upholding death sentences to provide victims’ families with a chance to heal. Such assertions are also closely related to beliefs that a particular offender is defiant or lacks remorse. Surprisingly, however, the association between closure and capital punishment has only recently been subjected to empirical scrutiny. Researchers have found that victims’ families deem closure a myth and often find executions themselves unsatisfying, provided that a perpetrator does not enjoy high media visibility so that the execution has a silencing effect, as did Oklahoma City bomber Timothy McVeigh’s execution by lethal injection in 2001. Recent empirical examinations of the link between capital punishment and closure prompt a redefinition of closure through which victims’ family members learn to cope with, work through, and tell the story of a murder and its impact. This redefinition is less sensational and thus perhaps less newsworthy, which may have the salubrious effect of discouraging extensive media emphasis on executions’ closure potential. Another way to decouple closure from capital punishment is for media organizations to change their practices of covering perpetrators, such as by not continually showing images of the perpetrator and by incorporating a more extensive focus on the victims and their families. While government officials have called for the media to exercise restraint in the wake of such events as the Oklahoma City bombing and 9/11, victims’ groups are now beginning to advocate for this same goal, with much success.

• capital punishment
• death penalty

The identification of closure with capital punishment is a fairly recent development, given the centuries-long history of the death penalty in the United States. As Armour and Umbreit ( 2012 ) observe, “although small in number, capital murder cases consume the attention of the public through mass media” (p. 4). Here, the term “media” is used to refer to the “main means of mass communication (esp. television, radio, newspapers, and the Internet) regarded collectively” (Media, n.d. ), including both those organizations that cover news and those focused on other forms of entertainment. The controversial coupling of closure with capital punishment (Armour & Umbreit, 2006 ) stems from both mass media coverage and criminal justice system practice, as prosecutors argue to juries that family members can gain closure from the execution of their loved ones’ killer, or that executions heal social or communal wounds (Meade, 1996 , pp. 743–744; Bandes, 2004 , pp. 592–595). Media institutions in particular have assumed a bullhorn role in broadcasting the association between capital punishment and closure, publicly articulating, circulating, and ultimately reinforcing this link. Although this oversimplifies the media’s role in the popular construction of the closure phenomenon, there is little doubt that the media has been instrumental. Death penalty researcher Frank Zimring reported that, before 1989 , closure was never mentioned by the media in conjunction with capital punishment; in 1989 , the two were mentioned in the same context only once (Zimring, 2003 , p. 60). Beginning in 1993 , however, the frequency with which closure was mentioned in the context of capital punishment grew with exponential frequency to 500 mentions in 2001 , when an ABC News/ Washington Post poll found that 60% of respondents strongly or moderately agreed with the statement that the death penalty was fair because it gave closure to murder victims’ family members (Zimring, 2003 , p. 60).

The Politicization of “Closure” Rhetoric

Closure concerns can appear in diverse social and cultural contexts, from adoption, personal injury, and death care to divorce, forensics, and memorialization (Berns, 2011 ). Closure concerns became highly visible in popular culture during the 1990s; Berns attributes this to “victims’ social movements; a rise in therapeutic language and goals; court decisions; and our cultural expectations for happy, inspiring, and quick resolutions” (Berns, 2011 , p. 8). Most scholarship addressing closure, however, has focused on its use as a justification for capital punishment (Kanwar, 2002 , p. 216). Scholars have observed that closure can be achieved through other means, including forgiveness, mercy, and alternative sentences such as life in prison without the possibility of parole. Kanwar and others have linked closure to the victims’ rights movement, making it increasingly “victim-centered”: “In political discourse, ‘closure’ is somehow presented as a rational and dispassionate matter of political concern, emptied of its emotional underpinnings and distanced from the viscerality of ‘satisfaction’” (Kanwar, 2002 , pp. 217, 222–237). Berns notes, “politicians and advocates use closure to talk about grief, victimization, justice, and healing” (Berns, 2011 , p. 118).

Both opponents and supporters of the death penalty have taken stances on the propriety of closure in connection with execution, from abolitionist organizations such as Murder Victims Families for Reconciliation to advocate organizations such as the National Organization of Parents of Murdered Children—but, in doing so, both stances have embraced and thus helped to legitimate the concept (Kanwar, 2002 , p. 249). On the one hand, those who disagree that capital punishment effects closure observe that legal proceedings are ill equipped to resolve grief and other emotions, focused as they are adjudicating guilt and allocating punishment (Kanwar, 2002 , pp. 241–242). Indeed, they argue, such contexts are more likely to exploit family members than to heal them, or at the very least produce many contradictory emotional responses (Kanwar, 2002 , pp. 242, 243). They also point to the possibilities of attaining closure through mercy and even forgiveness rather than vengeance, and to the fact that some victims who witness executions still feel hurt and anger, now compounded by disappointment and disillusionment (Berns, 2011 , p. 127; Goodwin, 1997 , p. 585). For example, numerous victims have attempted to decouple execution from closure expectations through “Not in My Name” movements that openly expose their refusal to allow states to use their stories to justify executions (King, 2003 ). On the other hand, supporters who believe capital punishment facilitates closure point not only to the recently extended “rights” to give victim impact evidence in capital sentencing proceedings and at times to witness executions, but also to individual family members’ public remarks preceding or following the execution of their loved ones’ killer that often emphasize relief and satisfaction. Much of the politicization of closure rhetoric has occurred through various forms of media, from news coverage of executions to interviews with victims’ families to online blogs and social media posts. The following, however, will focus not on the broader relationship between capital punishment and closure but on the media’s role in this relationship. More specifically, how do media representations of closure, perpetrators, and punishment reinforce the link between closure and capital punishment, and how have these representations affected victims’ families’ lived experience in the aftermath of mass murder and terrorism?

The Media Spotlight on Closure and Capital Punishment

As a phenomenon that is highly media-driven, closure illustrates how journalism can respond to traumatic events that seem to evade human understanding through facilitating the use of “simple narrative formats” (Sreberny, 2002 , p. 221). Thus, murders that trigger death sentences and closure claims may also in our “excessively mediated culture … encourage a kind of simulacrum of emotion and a form of affective manipulation by the culture industries”—which include the media (Sreberny, 2002 , p. 221). Media researchers such as Elayne Rapping have focused on television talk shows and their adoption of “a depoliticized, over-individualized approach to social problems,” an oversaturation of feelings (Rapping, 1994 ; Sreberny, 2002 , p. 221). Rapping explains that “television drama depends foremost on closure,” and argues this medium cultivated “an audience of viewer-citizens who were increasingly demanding a particular kind of closure: the conviction and punishment of the evil offender” (Rapping, 2003 , p. 10). This of course feeds into the current “soundbite culture,” characterized by “the rise of the image and the decline of the word,” facilitating superficial coverage instead of reasoned exchange (Slayden & Whillock, 1999 , pp. ix–x). It is especially ironic, then, that the US Supreme Court allowed cameras—the tools of an allegedly oversentimental medium—into criminal courtrooms to demonstrate the impartiality and efficacy of the criminal justice system, to “allay the fears … that the criminal justice system wasn’t ‘working,’ that it was too ‘soft on crime’ and that criminals were increasingly being allowed to go free” (Rapping, 2003 , p. 241). According to law professor Susan Bandes, the “law and media exist in a complex feedback loop,” with television, and perhaps now the Internet, “becom[ing] our culture’s principal storyteller, educator, and shaper of the popular imagination” (Bandes, 2004 , p. 585). Death-eligible crimes are highly newsworthy, in particular the “horse race” of the trial and the “minutiae of the execution” that mark those events as distinct (Bandes, 2004 , p. 587).

The media can effectively and consistently reinforce the association between closure and capital punishment because it plays key roles not only in broadcasting but in preserving historical perceptions and images, constructing American consciousness and contributing indelibly to American collective memory. Media focus our attention in both contemporary and historical ways. To these ends, Sontag ( 2003 ) has observed there is a common assumption that “public attention is steered by the attentions of the media—which means, most decisively, images,” highlighting “the determining influence of photographs in shaping what catastrophes and crises we pay attention to, what we care about, and ultimately what evaluations are attached to these conflicts” (p. 105).

But focusing Americans’ attention on some issues rather than others and prompting us to consider these issues in particular ways are processes that also carry normative and moral implications—what should citizens be looking at, and how ? Thus, the intersection between capital punishment, closure, and media also entails a debate over how American citizens and institutions should regard, react to, and reproduce images of and information about criminal perpetrators. Looking at perpetrators may feel somehow inappropriate in ways that gazing at images of their victims and rescuers does not, and may even approach a breach of moral propriety. Citizens become familiar with victims’ names to protest the anonymity of their deaths and to celebrate their humanity. But there can be less salubrious motives to learn about perpetrators, ranging from morbid curiosity to worshipful fascination. As Sontag ( 2003 ) eloquently noted in Regarding the Pain of Others , “[t]here is the satisfaction of being able to look at the image without flinching. There is the pleasure of flinching” (p. 41). Mitigating this visceral experience, however, is an awareness that preventing future violent acts may entail learning more, not less, about those who instigate them.

Closure’s popular appeal centers upon the cultural figure of the crime victim that has long maintained a hold upon the American public imagination. Contemporary interest in victims, their family members, and closure pursuits is often thought to be a reaction to the focus on criminal defendants and their rights that marked the “Warren Court” era of the US Supreme Court from 1953 to 1969 (Madeira, 2012 , p. 89). The ensuing crime victims’ rights movement casts crimes as transactions for which perpetrators must pay what they owe to both society and their victim(s) by serving their sentences and perhaps providing criminal restitution (Cole, 2007 , p. 35; Madeira, 2012 , p. 39). Prosecutors use victims and their family members largely as moral anchors that demand attention to the perpetrator’s infringement upon victims’ autonomy and dignity (Boutellier, 2000 , pp. 45–46). Significantly, in popular culture, closure needs are only attributed to victims’ families and sometimes rescuers, not the perpetrators’ family members.

Victims gained enhanced visibility in legal proceedings in 1991 when the US Supreme Court ruled in Payne v. Tennessee (505 U.S. 808, 825 ( 1991 )) that murder victims’ family members could deliver victim impact testimony at sentencing, extending new participative opportunities and symbolizing a legal focus on more therapeutic ends (Bandes, 2009 ). Thus, closure acquired a wide variety of dimensions; it became a procedural goal to give family members finality, an entitlement for victims’ families to a timely trial and punishment, and a therapeutic aspiration ensuring the inclusion of victims’ perspectives (Madeira, 2012 , p. 40). The media was ready to help to convey these conceptions of closure to a wider audience through such events as the televised trial of O. J. Simpson that captivated audiences, sowing the seeds for cultural connections between courtrooms, therapy, and victims. Richard Sherwin ( 2000 ) has described how such affairs may provide “hyper-catharsis,” “a spectacle that masks rather than reveals unconscious impulses and the fantasies they produce” and “exploits images—of victims and aggressors alike—for the sake of their emotional payoff” (p. 166).

Crucially, the media’s relationship with capital punishment and closure has always been at most indirect, surfacing in quotes or statements from journalists, government officials, attorneys, and victims’ families (Gross & Matheson, 2003 ; Vollum & Longmire, 2007 ). Family members interviewed in the news media often claim to experience closure from trials and executions—but that is the closest the media has come to investigating closure effects (Armour & Umbreit, 2006 ). American courts have vigorously resisted all attempts to broadcast executions, in large part because the execution image is thought to have a disruptive and disturbing potential, implicating both the inmate’s privacy and participants’ safety. The federal government, for example, prohibits photographic, audio, and visual recording devices at federal executions in 28 C.F.R. § 26.4(f). In cases addressing the media’s right to film an execution, judges have disputed the danger of the execution image, variously finding that it possesses no special qualities (Garrett vs. Estelle, 556 F.2d 1274, 1278 (C.A. Tex 1977 )) and that it is “qualitatively different from a mere verbal report about an execution” (Halquist vs. Department of Corrections, 732 P.2d 1065, 1067 (Wash. 1989 )). Oft-cited reasons for a ban on execution broadcasts are that such coverage would breach participating officials’ and inmates’ privacy, jeopardize security in the execution chamber, destroy execution solemnity, and introduce novel questions such as whether camera placement would disrupt execution routines (KQED vs. Vasquez, 1991 U.S. Dist. LEXIS 21163, p. 8 ( June 7, 1991 ); Entertainment Network vs. Lappin, 134 F. Supp. 2d 1002, 1018 (S.D. Ind. 2001 )). One court even proposed a “suicidal cameraman theory,” claiming a need to protect attendees from “heavy objects of any sort” such as news cameras that, if thrown in the witness room, might strike and break the window separating the witness room from the gas chamber (KQED vs. Vasquez, 1991 U.S. Dist. LEXIS 21163, p. 8 ( June 7, 1991 )).

A Case Study: The Oklahoma City Bombing

Extended empirical assessments of the relationship between capital punishment and closure can allow researchers to examine how particular murder victims’ family members experienced the relationship between capital punishment and closure. The 1995 Oklahoma City bombing offers an effective case study, since it had been the largest terrorist attack on American soil prior to 9/11; all legal proceedings are completed; and perpetrators Timothy McVeigh, Terry Nichols, and Michael Fortier all had differing levels of involvement and received wildly disparate sentences. Timothy McVeigh constructed and ignited a Ryder truck bomb outside the Murrah Federal Building on April 19, 1995 , and was executed on June 11, 2001 , in front of an unprecedented 242 individuals. His accomplice, Terry Nichols, had played a formative role in financing the project and constructing the truck bomb and is serving several life sentences in a federal Supermax penitentiary in Florence, Colorado. Michael Fortier, McVeigh’s former Army roommate who had known about the plans to construct the bomb, accepted a plea bargain and was sentenced to twelve years in prison, serving ten and a half years before being released early for good behavior and joining the federal Witness Protection Program.

Interviews with survivors and family members of the Oklahoma City bombing revealed that many spoke of McVeigh not as a perpetrator whom they had never met but as an involuntary presence in their lives who was forced upon them through an overbearing and seemingly ceaseless media presence. After McVeigh’s lawyer, Stephen Jones, allowed him to meet several journalists in an effort to find one who could write an effectively humanizing article (Madeira, 2012 , pp. 114, 204–205), McVeigh stayed in touch with several whom he had met until his execution in 2001 . There is no question that McVeigh became a media personality. Among his most noteworthy media appearances was the heavy media coverage and recirculation of images from his perpwalk, including his appearance in 1995 on the front cover of Time magazine, an Emmy award winning 60 Minutes death row interview by Ed Bradley in 2000 , and his collaboration on an authorized biography, American Terrorist: Timothy McVeigh and the Oklahoma City Bombing , authored by journalists Dan Herbeck and Lou Michel, that was published in April 2001 , shortly before his execution. Moreover, Attorney General John Ashcroft’s unprecedented decision to allow his execution in Terre Haute, Indiana, to be broadcast back to Oklahoma City via closed-circuit television ensured that he would be a leading media topic until his death was a fait accompli. As Bruce Shapiro noted on Salon.com , McVeigh’s closed-circuit execution broadcast ensured that “the press and pundits are talking about how big the crowd will be that gets to watch McVeigh … McVeigh is able to keep himself on the front page” (Shapiro, 2001 ).

Referencing media researchers Horton and Wohl’s concept of parasocial relationship, where media personalities such as sitcom characters or evening news anchors can come to feel like positive and familiar presences in a viewer’s social circle, it is possible that McVeigh had become a negative parasocial presence for survivors and family members, particularly those living in Oklahoma City, at the heart of the media maelstrom (Madeira, 2012 , p. 14). Several survivors and family members spoke of a need to execute McVeigh to “silence” him as well as to hold him accountable for his role in the bombing (Madeira, 2012 , p. 245). While many wanted Terry Nichols executed as well for his role in the bombing, their reasons for doing so did not have to do with silencing him, for he had remained quiet and out of the media limelight since his arrest. As family member Paul Howell stated,

McVeigh, even though he knew that he was getting the death sentence, he was defiant all the way up to the point where it actually happened, okay? He would speak out to the media. He would tell the families to grow up; it’s collateral damage that we killed your kids, you know. And everything that he did was doing nothing but hurting the family members here in Oklahoma. So the only way for us to have any kind of peace was to execute this man. Now on Nichols, Nichols is a little different because since he’s been tried and convicted, you don’t hear about him … I can live with him being in prison for the rest of his life, for the simple reason that he is not defiant and he’s not going out and getting on the news and so forth and trying to hurt the family members. (Madeira, 2012 , p. 246)

McVeigh was indeed aware that a handful of survivors and family members were very actively engaged in giving media interviews, and was determined to use his media access in turn to counter these voices, arguing that the bombing was justified as an act of war in retaliation for the United States government’s actions at Waco and Ruby Ridge (Madeira, 2012 , pp. 201–220).

Closure is not a popular term with most survivors and family members, and those in Oklahoma City were no exception. They almost unanimously denied that closure existed, lamenting the impossibility of finality or “getting over it” and speaking instead of the possibility of adjusting or “moving on” (Madeira, 2012 , pp. 41–45). Several termed closure a “media word” or “buzz term” (Madeira, 2012 , p. 42), and connected it to unrealistic expectations that those exposed to such trauma could rebound to “normal” within a matter of months—or indeed, unrealistic expectations that there was even a “normal” to which they could return (Madeira, 2012 , 41–45).

These findings prompt a redefinition of closure that considers the overlapping roles of both media institutions and capital legal proceedings. In contemporary media usage, closure most often refers to a state of being (“reaching closure”); in reality, however, it is “an interactive process by which individual family members and survivors construct meaningful narratives of the bombing and its impact upon their lives, and how they have moved on, dealt with, adjusted to, or healed from this culturally traumatic event” (Madeira, 2012 , pp. xxii–xxiv). This definition casts closure as a process comprising both intra personal and inter personal cycles. Closure requires both reflective behaviors of comprehension and self-adjustment, and more active interventions, from learning how to tell the story of a traumatic event to intervening to prevent other future events (Madeira, 2012 , pp. 50–53). Interventions might include participating in media interviews, helping to build the Oklahoma City National Memorial and Museum, attending the trial and/or execution, or working toward legal reforms (Madeira, 2012 , p. 53). Instead of effecting a “closing,” then, closure is concerned with creating an opening—an expansion of awareness and engagement and a readiness to reencounter social relationships and roles.

Changes in media practices also affected survivors’ and family members’ attempts to work through their grief and cope with McVeigh’s visibility. Many journalists and reporters in Oklahoma City demonstrated a sensitivity to how their communications with McVeigh would impact survivors and family members, and sometimes modified journalistic practice so as to minimize surprise and harm. For example, Terri Watkins, a reporter for KOCO-TV in Oklahoma, would meet with interested survivors and family members after she received a letter from McVeigh, but before she broadcast its contents (Madeira, 2012 , p. 206). Many were actually quite interested in what McVeigh had to say, but did not relish learning about these matters from watching television. In this fashion, McVeigh’s communications became more educational than sensationalist or profiteering, as they revealed a glimpse into the mind of this young man who had committed such a heinous act.

But the relationship between capital punishment, closure, and the media is scarcely straightforward; the Oklahoma City bombing case study illustrates two compelling paradoxes that problematize the assumption that the news media coverage always supports a link between closure and capital punishment, or that all coverage of a perpetrator is traumatic to and undesired by victims’ family members and survivors.

The same news media organizations that popularize the coupling between closure and capital punishment can undermine this connection by helping to convey how victims’ families found witnessing an execution a less than satisfactory experience. For example, one news story addressing the question of whether executions provided closure quoted a victim’s son as stating that the execution was “anticlimactic” and the perpetrator’s death was “very easy and peaceful,” perhaps making him angrier (Montgomery, 2009 ). Another victim’s son stated, “It didn’t bring my brother back. It didn’t do nothing” (Montgomery, 2009 ). Witnesses to McVeigh’s execution also found the ease of his death disappointing; as one closed-circuit witness recalled, “I just thought it’d take a long time … It took me longer to get out of the restroom [beforehand] than it took for him to die” (Madeira, 2012 , p. 251). Another closed-circuit witness lamented, “I don’t think it was gruesome enough. I think it should have been more painful … He just went to sleep. That’s the easy way out” (Madeira, 2012 , p. 254). Denied a satisfying visual experience, witnesses must find solace instead in the fact that the death sentence has been carried out, and the process is complete.

Moreover, if Oklahoma City family members and survivors faulted the media for its seemingly ceaseless coverage of the perpetrators that often hampered their ability to heal, they also acknowledged that the media played a formative role in providing important information such as investigational and trial updates and details about the perpetrators’ upbringings and family lives. McVeigh’s father, Bill, in particular attracted much sympathy from family members and survivors; in contrast, Nichols’s brother attracted much more negative attention as family members and survivors felt that he was using the media to popularize his anti-governmental views (Madeira, 2012 , p. 111). A television interview with Bill McVeigh even led family member Bud Welch to perhaps his greatest moment of personal peace; Welch ultimately met with Bill and McVeigh’s sister Jennifer at their home in upstate New York, when Bud was able to tell them that the two men were living the same pain, that Bud cared how they felt, and did not blame them for Timothy McVeigh’s actions (Madeira, 2012 , pp. 111–112).

Other Illustrative Cases

The Oklahoma City bombing stands out in American history as a rather extreme example of the traumatic potential of a criminal perpetrator’s presence. However, other criminal perpetrators have also had a comparably toxic media presence, with traumatizing effects to victims’ family members. Daniel Rolling, the so-called Gainesville Ripper, maintained a particularly infamous media presence with similar consequences for the families of his victims. Rolling, a serial killer, murdered five University of Florida Students in Gainesville in 1990 , mutilating their bodies. When he was prosecuted for these crimes nearly four years later, Rolling claimed to want to be a criminal “superstar” (Associated Press, “Florida Executes Serial Killer,” 2006 ) like Ted Bundy and pled guilty to all charges; he was subsequently sentenced to death on each count. At trial, he sang gospel songs while he was sentenced (Fisher, 2006 ). He later collaborated with Sondra London on a book entitled The Making of a Serial Killer: The Real Story of the Gainesville Murders in the Killer’s Own Words (London, 1996 ). Rolling also gave London, who eventually became his fiancée, exclusive rights to any interviews and written material, and also asked her to market the many letters, songs and poems, and pictures he produced while on death row in Florida (Writer to marry Rolling, 1993 ). Like McVeigh, Rolling also wrote letters to news media organizations (Associated Press, “Serial Killer Danny Rolling Executed,” 2006 ). Following the execution, during which Rolling sang a gospel hymn, Chief Assistant State Attorney Jeanne Singer remarked that “it looked like a final stage performance” (Fisher, 2006 ).

The mass media may also exhibit what Susan Bandes terms “selective empathy”—disproportionately covering extremely sympathetic perpetrators, such as Karla Faye Tucker, who was executed in 1998 (Bandes, 2004 , p. 593). The first woman Texas had executed since the Civil War, Tucker had been sentenced to death for murdering two people in 1983 with a 3-foot pickax while engaging in a weekend-long party that included drug use (Grumman, 1998 ; Kudlac, 2007 ). After she was sentenced to death, news coverage chronicled her history of prostitution and drug abuse and the fact that she had become a fervent Christian and obtained her GED, even marrying her prison minister, Dana Brown (“Karla Faye Tucker’s Last Hours,” 1998 ). Again, coverage of Tucker’s impending execution became headline news. Larry King conducted an Emmy award-winning interview with Tucker approximately one month before her execution (King, 2007 ). She was on the cover of People Magazine , was a guest on Pat Roberson’s 700 Club , and Pope John Paul II sent her a letter of support (Kudlac, 2007 , p. 73). Yet, this omnipresent media coverage had not worn well with the family members of her victims; Richard Thornton, the husband of one of her victims, stated that “She finally said my wife’s name. It took her 14½ years to do it. We’ll begin tomorrow without the name Karla Faye Tucker stuck in our face every day” (Grumman, 1998 ).

If capital punishment is thought more likely to bring closure in cases where offenders appear disrespectful, defiant, and unrepentant, the news media is undoubtedly the chief means of publicizing these qualities, as well as others that can influence public opinion about whether executing a given offender will bring closure. Following the trial of Scott Peterson, charged and convicted of the murder of his wife, Lacie, and her unborn son, Connor, the media was saturated with references to Peterson’s conduct during trial, where he sat “defiantly still and tight-jawed” (Vries, 2004 ), and with jurors’ assertions that this lack of emotion was what finally pushed them toward a death sentence—particularly after he did not testify at trial (Vries, 2004 ). One juror interviewed on CBS News’s The Early Show stated that Peterson “is a cold blooded killer. He has no remorse” (Vries, 2004 ).

More recently, news coverage of the trial of Dzhokhar Tsarnaev, one of two brothers responsible for the 2013 Boston Marathon bombing, consistently portrayed him as remorseless and openly insolent. One Boston Globe article noted, “while he sits obediently in the courtroom, without drawing much attention to himself, he wears a neutral expression, even during gut-wrenching testimony from witnesses” (Wen & Valencia, 2015 ). The most memorable visual example of Tsarnaev’s lack of remorse was the widely circulated image from a closed-circuit video wherein he raised his middle finger to a camera in his cell (CNN Tonight, 2015 ). One CNN article reported that, in this video clip, Tsarnaev “glares into the camera defiantly, his middle finger raised in a profane salute,” and repeated federal prosecutor Nadine Pellegrini’s statement describing Tsarnaev as “unconcerned, unrepentant, and unchanged … Without remorse, he remains untouched by the grief and loss that he caused” (O’Neill, 2015 ). A perpetrator who remains untouched is, of course, difficult or impossible to empathize with—although the defense attempted to explain that this “profane salute” was “a show of spontaneous juvenile behavior” by showing other footage from the same video clip that showed Dzhokhar fussing with his hair in the camera’s reflection and “flash[ing] a V sign” (Wen & Valencia, 2015 ). Tsarnaev’s apparent remorselessness can explain reactions like that which Charles C. W. Cooke, a self-described opponent of the death penalty, published in an opinion piece in the National Review : “I accept my own failings here. I accept there’s no high principle involved, and that my heart is betraying my head. But if this one fries, I’m not sure how much I care” (Cooke, 2015 ).

Recent research, however, reminds us that we need to exercise caution when attempting to assess perpetrators’ remorse and making related judgments about what closure requires and whether capital punishment is warranted, because these judgments are often inaccurate and have harsh consequences. Law professor Susan Bandes argues that, while there is currently no evidence that a defendant’s remorse can be accurately evaluated in a courtroom, several research studies demonstrate that race and other biases may distort these assessments of remorsefulness (Bandes, 2015 ). This is a particularly compelling and widespread problem because judgments about remorsefulness often influence “sentencing hearings; parole, probation, and clemency determinations; forensic evaluations; decisions on whether to try a juvenile as an adult; and even (counter-intuitively) determinations of guilt or innocence” (Bandes, 2015 , p. 1).

Constraints Upon Media Coverage of Perpetrators

Media organizations’ preoccupation with grieving victims’ families and, more problematically, with the criminal perpetrators responsible, has prompted criticism. But would altering media news coverage of perpetrators decrease family members’ traumatization, or alter public closure perceptions?

Attempts by government officials to reduce perpetrators’ presence in the media are predictable responses in the wake of terrorism events or accountability proceedings. On April 12, 2001 , while announcing that McVeigh’s execution would be broadcast via closed-circuit television, US Attorney General John Ashcroft asked journalists to not give McVeigh continued media access:

As an American who cares about our culture, I want to restrict a mass murderer’s access to the public podium … I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims … If the news media conducts an interview with Timothy McVeigh, I would ask them for self-restraint. Please do not help him inject more poison into our culture … I would ask that the news media not become Timothy McVeigh’s co-conspirators in his assault on America’s public safety and upon America itself. (Madeira, 2012 , p. 198)

Similarly, following 9/11, Victor Navasky noted that National Security Adviser Condoleezza Rice “famously got all the heads of all the network news divisions on the line and asked that they think twice before running any more Bin Laden tapes,” whereupon, “instead of objecting to this blatant and unprecedented government intrusion or reciting the press’s traditional mantra about fairness and the obligation to present both sides, they all caved in to her request” (Navasky, 2002 , p. xvii). James Carey observes that Rice made this request to prevent networks from “inadvertently transmit[ting] propaganda or carry[ing] coded instructions from the ‘terrorist-in-chief’ to al-Qaeda operatives worldwide” (Carey, 2002 , p. 74).

Recently, victims’ families and survivors have also attempted to change media practices in more dramatic ways. A group called “No Notoriety” was formed by Tom and Caren Teves, whose son Alex was killed in a mass shooting perpetrated by James Holmes, who was convicted and sentenced to life in prison for killing 12 and wounding 70 others at a Century movie theater in Aurora, Colorado, on July 20, 2012 . Tom Teves had challenged Anderson Cooper and CNN during an interview on July 23, 2012 , to stop giving notoriety to his son’s killer; media coverage had consistently featured Holmes’ mug shot, taken at the Arapahoe County Jail immediately after his arrest, which showed a young man with wide, staring eyes and flame-orange hair. Members of No Notoriety include over 70 families and survivors from some of the worst mass shootings in American history. The group supports “responsible media coverage for the sake of public safety” and challenges media organizations to limit the name and likeness of suspects after identification except when they are still at large, to refuse to publish self-serving statements or images made by the individual in favor of focusing on victims, and to promote data and analyses that help eliminate the motivations behind mass murder (NoNotoriety, n.d. a ). Many journalists, media organizations, professional associations, and government agencies have responded positively to this challenge, including People magazine, the International Police Association, and the FBI (NoNotoriety, n.d. b ).

Finally, recent media coverage has demonstrated increased sensitivity to the question of whether or not to name the shooter, and how often; after a shooting in Colorado Springs on October 31, 2015 , Joanna Bean at the Colorado Statesman clarified that the publication named the shooter so that those who knew him could provide information that might protect the public and to enable the community to ask questions about “access to mental health services, law enforcement response to active-shooter situations and how people acquire guns” (Bean, 2015 ). Some, however, have responded to the anti-perpetrator publicity movement by refusing to name the perpetrator at all. Following a mass shooting at Umpqua Community College in Rosewood, Oregon, Douglas County Sheriff John Hanlin stated that he would not name the killer, stating “I will not give him the credit he probably sought. You will never hear me mention his name” (Alteir, 2015 ).

Review of the Literature and Further Sources

Despite the growing popularity of capital punishment’s link to closure for murder victims’ family members, there are surprisingly few empirical research studies investigating the validity of this connection. In fact, the earliest studies did not focus upon victims’ family members but other populations, such as journalists who witnessed executions and college students asked to contemplate witnessing an execution.

In a 1994 study examining the “psychological distress associated with simply being an uninvolved, threatened witness to violence,” Freinkel, Koopman, and Spiegel ( 1994 ) submitted a questionnaire to journalists one month after they witnessed the 1992 execution of Robert Alton Harris to assess dissociative symptoms. Based on the 15 returned questionnaires, the authors concluded that no journalist reported “severe or long-lasting psychological trauma,” but that many experienced dissociative symptoms and “short-term psychological impact” (Freinkel et al., 1994 ). Significantly, this study lacked a control group of journalists who did not witness the execution, and its methodology made it difficult or impossible to conclusively distinguish stress from witnessing the execution to stress from unrelated, postexecution assignments. A second study by Domino and Boccaccini ( 2000 ) questioned 219 University of Alabama students as to whether family members of victims should be allowed to watch the executions of their loved ones’ killers. The questionnaire contained a brief description of a policy initiative allowing family members to witness executions, followed by eight attitudinal questions about execution viewing. The authors reported that, while most subjects would not want to witness, they were more likely to witness the execution of an inmate who had murdered their family member than a stranger, and that most subjects felt that witnessing would not “assist the family in coping with the loss of their loved one” (Domino & Boccaccini, 2000 , p. 71).

Much prior research has addressed the propriety of televising executions. In her book Pictures at an Execution , Wendy Lesser ( 1998 ) addressed the question of whether the mass media should broadcast executions, concluding that this was not advisable. Examining the “crucial connection between murder and theater,” Lesser ( 1998 ) asserted that execution broadcasts would be offensive and prurient, noting that actual murder narratives, unlike fictional ones, do not provide closure (pp. 17–18). Law and Society scholar Austin Sarat ( 2001 ), however, came to the opposite conclusion in his book When the State Kills: Capital Punishment and the American Condition , contending that, because capital punishment’s survival depends on its “relative invisibility,” execution broadcasts would problematize that invisibility and therefore perhaps bring about the abolition of the death penalty (p. 191). For Sarat, “the public is always present at an execution” as “authorizing audience,” and not broadcasting executions helps the state to maintain control by determining who witnesses, since “the very uncontrollability of the gaze and the indeterminacy of its political effects are what make televising executions so threatening to the survival of capital punishment” (Sarat, 2001 , pp. 25, 207). He continues, “televising executions would disrupt the attempt to dignify state killing and to reduce it from political spectacle to administrative act”; without cameras in the execution chamber, we “forget that we are killing” (Sarat, 2001 , p. 280).

Finally, additional empirical research is beginning to address the psychological effects of a death sentence on victims’ families’ well-being. In a recent research study, Marilyn Armour and Mark Umbreit ( 2012 ) conducted in-person interviews with a randomly selected set of survivors from four different time periods to assess the longitudinal impact of a death sentence, comparing the experiences of family members in an abolition state, Minnesota, with those of family members from an active death penalty state, Texas. The researchers found that “in Minnesota, survivors … show higher levels of physical, psychological, and behavioral health” (Armour & Umbreit, 2012 , p. 1).

Further Reading

• Acker, J. (2006). The Myth of Closure and Capital Punishment. In R. M. Bohm & J. T. Walker (Eds.), Demystifying Crime and Criminal Justice (pp. 167–175). Los Angeles: Roxbury.
• Acker, J. , & Karp, D. R. (2006). Wounds that do not bind: Victim-based perspectives on the death penalty . Durham, NC: Carolina Academic Press.
• Armour, M. P. , & Umbreit, M. S. (2012). Assessing the impact of the ultimate penal sanction on homicide survivors: A two state comparison. Marquette Law Review , 96 , 1–131.
• Associated Press . (2004, December 14). Jurors: Peterson’s stoicism was the final straw . NBC News .
• Beck, E. , Britto, S. , & Andrews, A. (2007). In the shadow of death: Restorative justice and death row families . New York: Oxford University Press.
• Berns, N. (2009). Contesting the victim card: Closure discourse and emotion in death penalty rhetoric. The Sociological Quarterly , 50 , 383–406.
• Berns, N. (2011). Closure: The rush to end grief and what it costs us . Philadelphia: Temple University Press.
• Bessler, J. D. (1997). Death in the dark: Midnight executions in America . Boston: Northeastern Press.
• Gerber, T. (2014, July 28). FBI to media: Don’t name mass shooters . ABC KSAT 12 .
• Kaplan, P. (2012). Murder stories: Ideological narratives in capital punishment . Lanham, MD: Lexington.
• Sharp, S. F. (2005). Hidden victims: The effects of the death penalty on the families of the accused . New Brunswick, NJ: Rutgers University Press.
• Spungen, D. (1998). Homicide: The hidden victims . Thousand Oaks, CA: SAGE.
• Tribune News Services . (2004, December 14). Jury says stoic Peterson deserves to be executed . Chicago Tribune .
• Alteir, N. (2015, October 1). “You will never hear me say his name,” sheriff says of Roseburg school shooter . The Oregonian .
• Armour, M. P. , & Umbreit, M. S. (2006). Exploring “closure” and the ultimate penal sanction for survivors of homicide victims. Federal Sentencing Reporter , 19 , 105–112.
• Associated Press . (2006, October 25). Florida executes serial killer Danny Harold Rolling . Fox News .
• Associated Press . (2006, October 26). Serial killer Danny Rolling executed in Florida . NBC News .
• Bandes, S. (2004). Fear factor: The role of the media in covering and shaping the death penalty. Ohio State Journal of Criminal Law , 1 , 585–597.
• Bandes, S. (2009). Victims, “closure,” and the sociology of emotion. Law and Contemporary Problems , 72 , 1–26.
• Bandes, S. (2015). Remorse and criminal justice. Emotion Review , 1 , 1–6.
• Bean, J. (2015, November 3). The Gazette: Why we published the name of the gunman . The Colorado Statesman .
• Boutellier, H. (2000). Crime and morality: The significance of criminal justice in postmodern culture . New York: Springer.
• Carey, J. W. (2002). American journalism on, before, and after September 11. In B. Zelizer & S. Allan (Eds.), Journalism after September 11 (pp. 85–103). New York: Oxford University Press.
• CNN Tonight . (2015, April 22). Boston marathon bomber flips camera the bird . CNN .
• Cole, A. M. (2007). The cult of true victimhood . Stanford: Stanford University Press.
• Cooke, C. W. (2015, April 8). I’m against the death penalty, but I don’t really care if Tsarnaev fries . National Review .
• Domino, M. L. , & Boccaccini, M. T. (2000). Doubting Thomas: Should family members of victims watch executions? Law & Psychology Review , 24 , 59–75.
• Fisher, L. (2006, October 26). Danny Rolling executed for five student murders . The Gainesville Sun .
• Freinkel, A. , Koopman, C. , & Spiegel, D. (1994). Dissociative symptoms in media eyewitnesses of an execution. American Journal of Psychiatry , 151 , 1335–1339.
• Goodwin, M. L. (1997). An eyeful for an eye: An argument against allowing the families of murder victims to view executions. Brandeis Journal of Family Law , 36 , 585–608.
• Gross, S. R. , & Matheson, D. J. (2003). What they say at the end: Capital victims’ families and the press. Cornell Law Review , 88 , 486–516.
• Grumman, C. (1998, February 4). Karla Tucker put to death in Texas, last statement an apology to victims’ families . Chicago Tribune .
• Kanwar, V. (2002). Capital punishment as closure: The limits of a victim-centered jurisprudence. New York University Review of Law and Social Change , 27 (2), 215–255.
• King, L. (2007, March 26). Karla Faye Tucker: Born again on death row . CNN .
• King, R. (2003). Don’t kill in our names: Families of murder victims speak out against the death penalty . Piscataway, NJ: Rutgers University Press.
• Kudlac, C. S. (2007). Public executions: The death penalty and the media . Westport, CT: Praeger.
• Karla Faye Tucker’s last hours? Condemned killer awaits word from court, governor . (1992, February 3). CNN .
• Lesser, W. (1998). Pictures at an execution: An inquiry into the subject of murder . Cambridge, MA: Harvard University Press.
• London, S. (1996). The making of a serial killer: The real story of the Gainesville murders in the killer’s own words . Portland, OR: Feral House.
• Madeira, J. L. (2012). Killing McVeigh: The death penalty and the myth of closure . New York: New York University Press.
• Meade, C. J. (1996). Reading death sentences: The narrative construction of capital punishment. New York Law Review , 71 , 732–761.
• Media . (n.d.). In Oxford Dictionaries .
• Montgomery, D. (2009, November 10). For murder victims’ families, witnessing execution offers hollow satisfaction . Washington Post .
• Navasky, V. (2002). Foreword. In B. Zelizer & S. Allan (Eds.), Journalism after September 11 . (pp. xix–xxv). New York: Oxford University Press.
• NoNotoriety.com . (n.d. a). Challenge to the media .
• NoNotoriety.com . (n.d. b). Data, experts, endorsements .
• O’Neill, A. (2015, April 21). Prosecution shows what it calls Tsarnaev’s defiant message to U.S. . CNN .
• Rapping, E. (1994). Mediations: Forays into the culture and gender wars . Boston: South End.
• Rapping, E. (2003). Law and Justice as seen on TV . New York: New York University Press.
• Sarat, A. (2001). When the state kills: Capital punishment and the American condition . Princeton, NJ: Princeton University Press.
• Shapiro, B. (2001, February 24). Killing McVeigh . Salon .
• Sherwin, R. K. (2000). When law goes pop: The vanishing line between law and popular culture . Chicago: University of Chicago Press.
• Slayden, D. , & Whillock, R. K. (Eds.). (1999). Soundbite culture: The death of discourse in a wired world . Thousand Oaks, CA: SAGE.
• Sontag, S. (2003). Regarding the pain of others . New York: Farrar, Straus and Giroux.
• Sreberny, A. (2002). Trauma talk: Reconfiguring the inside and outside. In B. Zelizer & S. Allan (Eds.), Journalism after September 11 (pp. 220–234). New York: Oxford University Press.
• Vollum, S. , & Longmire, D. R. (2007). Covictims of capital murder: Statements of victims’ family members and friends made at the time of execution. Violence & Victims , 22 , 601–619.
• Vries, L. (2004, December 21). Juror: Peterson “has no remorse” . CBS News .
• Wen, P. , & Valencia, M. J. (2015, April 27). As Dzhokhar Tsarnaev’s defense begins, image matters . Boston Globe .
• Writer to marry Rolling . (1993, February 26). Sun-Sentinel .
• Zimring, F. E. (2003). The contradictions of American capital punishment . New York: Oxford University Press.

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The Case Against the Death Penalty

The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.

The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:

The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place . People of color are far more likely to be executed than white people, especially if thevictim is white

The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates.

Innocent people are too often sentenced to death. Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed.

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES

In 1972, the Supreme Court declared that under then-existing laws “the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” ( Furman v. Georgia , 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so “harsh, freakish, and arbitrary” as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that “the punishment of death does not invariably violate the Constitution.” The Court ruled that the new death penalty statutes contained “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death.” ( Gregg v. Georgia , 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder.

Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976 .

ACLU OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court’s 1976 ruling in Gregg v. Georgia , et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Capital punishment is cruel and unusual . It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death.

Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of equal protection . It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.

The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective . Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.

Capital punishment wastes limited resources . It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society’s control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.

Opposing the death penalty does not indicate a lack of sympathy for murder victims . On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to “guided discretion.” Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution.

A society that respects life does not deliberately kill human beings . An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment’s severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions .

The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year , this is still only about one percent of all homicides known to the police . Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137 , reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.

Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 ( Woodson v. North Carolina , 428 U.S. 280).

A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.

Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others.

Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs.

Capital punishment doesn’t solve our society’s crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

Capital punishment has been a useless weapon in the so-called “war on drugs.” The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers.

If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because “a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. “

In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions . Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states : California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it.

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions . Evidently, the threat of the death penalty “does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.” Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell , who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row.

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court’s ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989)

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction . But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial Bias in Death Sentencing

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman . Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that “the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions.” A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist “legacy of slavery.” Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black .

Our nation’s death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one’s conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987)

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black . More striking is the racial comparison of victims . Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim.

Between 1976 and 2005 , 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men.

So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.”

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that “the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims.” (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was “a constitutionally significant risk of racial bias….” (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was “best presented to the legislative bodies,” subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded : “Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision” and that “race of victim influence was found at all stages of the criminal justice system process…”

Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires.

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person . Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color . Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims. [1]

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse . Since 1900, only 51 women have been executed in the United States (15 of them black).

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet “approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.”) Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman , “One searches our chronicles in vain for the execution of any member of the affluent strata in this society”(408 US 238).

Failure of Safeguards

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. “Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination.”(Gross and Mauro, Death and Discrimination 1989)

Justice John Marshall Harlan, writing for the Court in Furman , noted “… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court “do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce.”

Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge’s instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. “Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law.”

Even if the jury’s sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor’s decision to prosecute for a capital or lesser crime, the court’s willingness to accept or reject a guilty plea, the jury’s decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant’s sanity, and the governor’s final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997 . The House judged the current system to be “a haphazard maze of unfair practices.”

In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual “constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime.” (International Commission of Jurists, Administration of the Death Penalty in the United States 1996)

In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed.

Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed.

In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man. [2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench. [3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it. [4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person. [5]

Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared:

• In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty.
• In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed.
• In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer.
• In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler’s explanation of the child’s cause of death and the physician who performed the autopsy admitted his work had not been thorough.
• In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs’ death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state’s witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution.
• In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury’s recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian’s behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian’s conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges.
• In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants’ innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges.
• In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, “One of you two is going to hang for this.” Looking at Brandley, the officer said, “Since you’re the nigger, you’re elected.” In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley’s aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991)

This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant’s previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.

CAPITAL PUNISHMENT IS BARBARIC

Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.

Two states, Idaho and Utah, still authorize the firing squad . The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows:

“At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans’ body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans’ left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans’ face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

“The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied.

“At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans’ body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes.” Afterwards, officials were embarrassed by what one observer called the “barbaric ritual.” The prison spokesman remarked, “This was supposed to be a very clean manner of administering death.”

The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a “cruel and unusual punishment.” Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens:

“When the fumes enveloped Don’s head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

“At this point Don’s body started convulsing violently…. His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don’s face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

“After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don’s left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

“Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

“Don Harding took ten minutes and thirty one seconds to die.” ( Gomez v. U.S. District Court , 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection , first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is “substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation.” ( Chaney v. Heckler , 718 F.2d 1174, 1983).

Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:

“The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death.”

Botched Lethal Injections

Nor does execution by lethal injection always proceed smoothly as planned. In 1985 “the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser.” In 1988, during the execution of Raymond Landry, “a tube attached to a needle inside the inmate’s right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses.”

Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break.

Lethal Injection Protocol Issues

Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart. [6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology. [7] Some states have replaced the three-drug cocktail with a single substance, [8] while others have replaced thiopental in the three-drug sequence with another anesthetic. [9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process. [10]

Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment, [11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution. [12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure. [13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection. [14]

Although similar suits are pending in other states, [15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used. [16]

Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions [17] and European Union restrictions on the exportation of drugs that may be used to kill. [18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school. [19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.” [20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed. [21]

Witnessing the Execution

Most people who have observed an execution are horrified and disgusted. “I was ashamed,” writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. “I was an intruder, the only member of the public who had trespassed on [the condemned man’s] private moment of anguish. In my face he could see the horror of his own death.”

Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber:

“If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The ‘last mile’ seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. ‘No more. I don’t want to do this anymore.'” 1996)

Recently, Allen Ault, former executioner for the State of Georgia, wrote , “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.”

For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. “I received more than seven hundred applications for the position, many of them offering cut-rate prices.” (Life and Death in Sing Sing 1928)

Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960)

Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: “The death penalty cannot be useful, because of the example of barbarity it gives men.” Beccaria’s words still ring true – even if the death penalty were a “useful” deterrent, it would still be an “example of barbarity.” No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”(Boston Globe, August 16, 1976)

Death Row Syndrome

Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years. [22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement [23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon. [24]

In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior. [25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community. [26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them.

Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association. [27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” [28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. [29]

Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil. [30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. [31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.” [32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court. [33]

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions.

Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, “For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – “making the punishment fit the crime.” If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.

If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Murder Victims Families Oppose the Death Penalty

Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, “As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder.” (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981)

Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written:

“I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn’t want the killer, in turn, to be killed. I remember lying in bed and praying, ‘Please, God. Please don’t take his life too.’ I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief.”(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989)

Across the nation, many who have survived the murder of a loved one have joined Murder Victims’ Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently.

Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James’ killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment.”

Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out “You can’t fight murder with murder . . .(l)ife in prison would have been fine. I know he can’t hurt my daddy anymore. I wish the state would take in mind that this isn’t what we want.”

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. “The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.”) A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., “Capital Losses” 1982)

The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost.

In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs “approximately 42 percent more than a case resulting in a non-death sentence.” In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. 59 Florida, with one of the nation’s most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence.” (David von Drehle, “Capital Punishment in Paralysis,” Miami Herald, July 10, 1988)

A 1993 study of the costs of North Carolina’s capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution.

In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, “My frustration is more about the fact that the death penalty does not serve any useful purpose and it’s very expensive.” Don Heller, a Republican and former prosecutor, wrote “I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility.” Heller emphasized that he is not “soft on crime,” but that “life without parole protects public safety better than a death sentence.” Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. “Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety.” [34]

From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. “Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent.” The only way to make the death penalty more “cost effective” than imprisonment is to weaken due process and curtail appellate review, which are the defendant’s (and society’s) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice : In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned .

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty “resource centers” charged with providing counsel on appeal in the federal courts. (Carol Castenada, “Death Penalty Centers Losing Support Funds,” USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory.

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty . A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41% . Only a minority of the American public would favor the death penalty if offered such alternatives.

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that “the facts clearly show that the death penalty is regarded in Europe as something of an anachronism….” 1962)

Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.

Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an “inhumane” punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it .

International Law

A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. [35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties. [36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. [37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights.

Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime. [38]

The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives. [39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor.

In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows .

Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment. [42]

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty.

The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012.

[1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008 , 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf .

[2] Liebman et. al, Los Tocayos Carlos , 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012).

[3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man , Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/ .

[4] See id.

[5] See id. ; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed , PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html .

[6] A Three-Drug Cocktail , WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.html ; see also Victoria Gill, The Search for a Humane Way to Kill , BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961 .

[7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122 ; John Schwartz, Death Penalty Drug Raises Legal Questions , N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all .

[8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol , Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/ ; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty , Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.html ; David Beasley, Georgia Delays Execution Amid Drug Protocol Change , Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717 ; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution , Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.html ; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate , WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/ ; Idaho Switches Execution Protocol to Single-Drug Lethal Injection , Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/ .

[9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns , NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concerns ; Steve Eder, Virginia Adds New Drug for Lethal Injections , WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/ .

[10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol , Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html .

[11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution , N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all .

[12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure , USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met–executionsART_ST_U.htm ; Court Gives Arizona Warning About Execution Protocol , Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.html . Notably, however, the panel did not halt Arizona’s scheduled executions. Id.

[13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution , Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723 .

[14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug , Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/ .

[15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol , KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/ .

[16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids , Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocol ; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails , Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/ .

[17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low , Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-low ; John Schwartz, Seeking Execution Drug, States Cut Legal Corners , N.Y. Times, Apr. 13, 2011,

http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all ; Kiefer, supra note 7.

[18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016 ; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections , BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578 .

[19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed , Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420 ; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing , Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htm l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug , USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc ; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler , California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888 ; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug , California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.html .

[20] Pelofsky, supra note 14.

[21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs , Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.html .

[22] See Elizabeth Rapaport , A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S. , Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf .

[23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0 .

[24] See Harrison and Tamony, supra note 25.

[25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row .

[26] See id.

[27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution , 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdf .

[28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari).

[29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases , 14 J.L. & Pol’y 735, 738-39 (2006).

[30] Soering v. UK , App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf .

[31] See David Wallace-Wells, What is Death Row Syndrome? , Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.html ; Smith supra note 30.

[32] Smith supra note 30. (quoting Soering , 11 Eur. H. R. Rep. at 475-76).

[33] Id. at 239.

[34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year , L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620 .

[35] Figures on the Death Penalty , Amnesty International, http://www.amnesty.org/en/death-penalty/numbers .

[36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [ hereinafter Second Optional Protocol].

[37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions , World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html ; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty , World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.html ; Second Optional Protocol, supra note 21.

[38] Desert, Second Optional Protocol: Frequently Asked Questions , supra note 22.

[39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf .

[40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf .

[41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventions .

[42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf .

Related Issues

• Capital Punishment

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Internet Encyclopedia of Philosophy

Capital punishment.

Capital punishment, or “the death penalty,” is an institutionalized practice designed to result in deliberately executing persons in response to actual or supposed misconduct and following an authorized, rule-governed process to conclude that the person is responsible for violating norms that warrant execution.  Punitive executions have historically been imposed by diverse kinds of authorities, for an expansive range of conduct, for political or religious beliefs and practices, for a status beyond one’s control, or without employing any significant due process procedures.  Punitive executions also have been and continue to be carried out more informally, such as by terrorist groups, urban gangs, or mobs.  But for centuries in Europe and America, discussions have focused on capital punishment as an institutionalized, rule-governed practice of modern states and legal systems governing serious criminal conduct and procedures.

Capital punishment has existed for millennia, as evident from ancient law codes and Plato’s famous rendition of Socrates’s trial and execution by democratic Athens in 399 B.C.E.  Among major European philosophers, specific or systematic attention to the death penalty is the exception until about 400 years ago.  Most modern philosophic attention to capital punishment emerged from penal reform proponents, as principled, moral evaluation of law and social practice, or amidst theories of the modern state and sovereignty.  The mid-twentieth century emergence of an international human rights regime and American constitutional controversies sparked anew much philosophic focus on theories of punishment and the death penalty, including arbitrariness, mistakes, or discrimination in the American institution of capital punishment.

The central philosophic question about capital punishment is one of moral justification:  on what grounds, if any, is the state’s deliberate killing of identified offenders a morally justifiable response to voluntary criminal conduct, even the most serious of crimes, such as murder?  As with questions about the morality of punishment, two broadly different approaches are commonly distinguished: retributivism, with a focus on past conduct that merits death as a penal response, and utilitarianism or consequentialism, with attention to the effects of the death penalty, especially any effects in preventing more crime through deterrence or incapacitation.  Section One provides some historical context and basic concepts for locating the central philosophic question about capital punishment:  Is death the amount or kind of penalty that is morally justified for the most serious of crimes, such as murder?  Section Two attends to classic considerations of lex talionis (“the law of retaliation”) and recent retributivist approaches to capital punishment that involve the right to life or a conception of fairness.  Section Three considers classic utilitarian approaches to justifying the death penalty: primarily as preventer of crime through deterrence or incapacitation, but also with respect to some other consequences of capital punishment.  Section Four attends to relatively recent approaches to punishment as expression or communication of fundamental values or norms, including for purposes of educating or reforming offenders.  Section Five explores issues of justification related to the institution of capital punishment, as in America: Is the death penalty morally justifiable if imperfect procedures produce mistakes, caprice, or (racial) discrimination in determining who is to be executed? Or if the actual execution of capital punishment requires unethical conduct by medical practitioners or other necessary participants?  Section Six considers the moral grounds, if any exist, for the state’s authority to punish by death.

Table of Contents

• Historical Practices
• Philosophic Frameworks and Approaches
• Classic Retributivism: Kant and lex talionis
• Lex talionis as a Principle of Proportionality
• Retributivism and the Right to Life
• Retributivism and Fairness
• Challenges to Retributivism
• Classic Utilitarian Approaches: Bentham, Beccaria, Mill
• Empirical Considerations: Incapacitation, Deterrence
• Utilitarian Defenses: “Common Sense” and “Best Bet”
• Challenges to Utilitarianism
• Other Consequential Considerations
• Capital Punishment as Communication
• Procedural Issues: Imperfect Justice
• Discrimination: Race, Class
• Medicine and the Death Penalty
• Costs: Economic Issues
• State Authority and Capital Punishment
• Primary Sources
• Secondary Sources

1. Context and Basic Concepts

A. historical practices.

Much philosophic focus on the death penalty is modern and relatively recent.  The phrase ‘capital punishment’ is older, used for nearly a millennium to signify the death penalty.  The classical Latin and medieval French roots of the term ‘capital’ indicate a punishment involving the loss of head or life, perhaps reflecting the use of beheading as a form of execution.  The actual practice of capital punishment is ancient, emerging much earlier than the familiar terms long used to refer to it.  In the ancient world, the Babylonian Code of Hammurabi (circa 1750 B.C.E.) included about 25 capital crimes; the Mosaic Code of the ancient Hebrews identifies numerous crimes punishable by death, invoking, like other ancient law codes, lex talionis , “the law of retaliation”; Draco’s Code of 621 B.C.E. Athens punished most crimes by death, and later Athenian law famously licensed the trial and death of Socrates; the fifth century B.C.E. Twelve Tables of Roman law include capital punishment for such crimes as publishing insulting songs or disturbing the nocturnal peace of urban areas, and later Roman law famously permitted the crucifixion of Jesus of Nazareth.  Even in such early practices, capital punishment was seen as within the authority of political rulers, embodied as a legal institution, and employed for a wide range of misconduct proscribed by law.

Medieval and early modern Europe retained expansive lists of capital crimes and notably expanded the forms of execution beyond the common ancient practices of stoning, crucifixion, drowning, beating to death, or poisoning.  In the Middle Ages both secular and ecclesiastical authorities participated in executions deliberately designed to be torturous and brutal, such as beheading, burning alive, drawing and quartering, hanging, disemboweling, using the rack, using thumb-screws, pressing with weights, boiling in oil, publicly dissecting, and castrating.  Such brutality was conducted publicly as spectacle and ritual­—an important or even essential element of capital punishment was not only the death of the accused, but the public process of killing and dying on display.  Capital punishment was varied in its severity by the spectrum of torturous ways by which the offender’s death was eventually effected by political and other penal authorities.

In “the new world” the American colonies’ use of the death penalty was influenced more by Britain than by any other nation.  The “Bloody Code” of the Elizabethan era included over 200 capital crimes, and the American colonies followed England in using public, ritualized hangings as the common form of execution.  Until the mid-18 th century, the colonies employed elaborate variations of the ritual of execution by hanging, even to the point of holding fake hangings.  Stuart Banner summarizes the early American practices:

Capital punishment was more than just one penal technique among others. It was the base point from which all other kinds of punishment deviated.  When the state punished serious crime, most of the methods …were variations on execution.  Officials imposed death sentences that were never carried out, they conducted mock hangings…, and they dramatically halted real execution ceremonies at the last minute.  These were methods of inflicting a symbolic death …. Officials also wielded a set of tools capable of intensifying a death sentence – burning at the stake, public display of the corpse, dismemberment and dissection – ways of producing a punishment worse than death. (54)

In early America “capital punishment was not just a single penalty,” but “a spectrum of penalties with gradations of severity above and below an ordinary execution” (Banner, 86).

The late 18th century brought a “dramatic transformation of penal thought and practice” that was international in scope (Banner, 89). The dramatic change came with the birth of publicly supported prisons or penitentiaries that allowed extended incarceration for large numbers of people (Banner, 99).  Before prisons and the practical possibility of lengthy incarceration as an alternative, “the only available units of measurement for serious crime were degrees of deviation from an ordinary execution” (Banner, 70).  After the invention of prisons, for serious crimes there was now an alternative to capital punishment and to the practiced spectrum of torturous executions: prisons allowed varying conditions of confinement (for example, hard labor, solitary confinement, loss of privacy) and a temporal measure, at least, for distinguishing degrees of punishment to address kinds of serious misconduct.  Dramatic changes for capital punishment also came with the 1864 publication in Italy of Cesare Beccaria’s essay, “On Crimes and Punishments.”  Very influential in Europe and the United States, Beccaria’s sustained, philosophic investigation of the death penalty challenged both the authority of the state to punish by death and the utility of capital punishment as a superior deterrent to lengthy imprisonment.  Philosophic defenses of the death penalty, like that of Immanuel Kant, opposed reformers and others, who, like Beccaria, argued for abolition of capital punishment.  During the 19th century the methods of execution were made less brutal and the number of capital crimes was much reduced compared to earlier centuries of practice.  Discussions of the death penalty’s merits invoked divergent understandings of the aims of punishment in general and thus of capital punishment in particular.

By the mid-20th century, two developments prompted another period of focused philosophic attention to the death penalty.  In the United States a series of Supreme Court cases challenged whether the death penalty falls under the constitutional prohibition of “cruel and unusual punishments,” including questions about the legal and moral import of a criminal justice process that results in mistakes, caprice, or racial discrimination in capital cases.   Capital punishment also became a global concern with the post-World War II Nuremberg trials of Nazi leaders and after the 1948 Declaration of Universal Human Rights and subsequent human rights treaties explicitly accorded all persons a right to life and encouraged abolishing the death penalty worldwide.  Most nations have now abolished capital punishment, with notable exceptions including China, North Korea, Japan, India, Indonesia, Egypt, Somalia, and the United States, the only western “industrialized” nation still retaining the death penalty.

b. Philosophic Frameworks and Approaches

Capital punishment is often explored philosophically in the context of more general theories of “the standard or central case” of punishment as an institution or practice within a structure of legal rules (Hart, “Prolegomenon,” 3-5).  The philosopher’s interest in the death penalty, then, is embedded in broader issues about the moral permissibility of punishment .  Any punishment – and certainly an execution – intentionally inflicts on a person significant pain, suffering, unpleasantness, or deprivation that it is ordinarily wrong for an authority like the state to impose.  What conditions or considerations, if any, would morally justify such penal practices?  Following a framework famously offered by H.L.A. Hart,

[w]hat we should look for are answers to a number of different questions such as:  What justifies the general practice of punishment? To whom may punishment be applied? How severely may we punish? (“Prolegomenon,” 3)

These different questions are, respectively, about the general justifying aim of punishment, about the conditions of responsibility for criminal conduct and liability to punishment, and about the amount, kind, or form of punishment justifiable to address actual or supposed misconduct.  It is the last of these questions of justification – about the justified amount, kind, or form of punishment – that is foremost in philosophic approaches to the death penalty.  Almost all modern and recent discussions of capital punishment assume liability for the death penalty is only for the gravest of crimes, such as murder; almost all assume comparatively humane modes of execution and largely ignore considering obviously torturous or brutal killings of offenders; and it is assumed that some amount of punishment is merited for murderers.  The central question, then, is not often whether punishing murderers is morally justifiable (rather than rehabilitation or release, for example), but whether it is morally justifiable to punish by death (rather than by imprisonment, for example) those found to have committed a grave offense, such as murder.  Responses to this question about the death penalty often build on more general principles or theories about the purposes of punishment in general, and about general criteria for determining the proper measure or amount of punishment for various crimes.

Among philosophers there are typically identified two broadly different ways of thinking about the moral merits of punishment in general, and whether capital punishment is a proper amount of punishment to address serious criminal misconduct (see “ Punishment ”). Justifications are proposed either with reference to forward-looking considerations, such as various future effects or consequences of capital punishment, or with reference to backward-looking considerations, such as facets of the wrongdoing to be punished.   The latter approach, if dominant, has, since the 1930s, been called ‘retributivism’; retributivist justifications “look back” to the offense committed in order to link directly the amount, kind, or form of punishment to what the offense merits as penal response.  This linkage is often characterized as whether a punishment “fits” the crime committed.  For retributivists, any beneficial effects or consequences of capital punishment are wholly irrelevant or distinctly secondary.  Forward-looking justifications of punishment have been labeled ‘utilitarian’ since the 19th century and, since the mid-20th century, other versions are sometimes called ‘consequentialism’. Consequentialist or utilitarian approaches to the death penalty are distinguished from retributivist approaches because the former rely only on assessing the future effects or consequences of capital punishment, such as crime prevention through deterrence and incapacitation.

2. Retributivist Approaches

Retributivists approach justifying the amount of punishment for misconduct by “looking back” to aspects of the wrongdoing committed.  There are many different versions of retributivism; all maintain a tight, essential link between the offense voluntarily committed and the amount, form, or kind of punishment justifiably threatened or imposed.  Future effects or consequences, if any, are then irrelevant or distinctly secondary considerations to justifying punishments for misconduct, including the death penalty.  Retributivism about capital punishment often prominently appeals to the principle of lex talionis , or “the law of retaliation,” an idea popularly familiarized in the ancient and biblical phrase, “an eye for an eye and a tooth for a tooth.”  Forms of retributivism vary according to their interpretation of lex talionis or in their appealing to alternative moral notions, such as basic moral rights or a principle of fairness.

a. Classic Retributivism: Kant and lex talionis

  A classic expression of retributivism about capital punishment can be found in a late 18th century treatise by Immanuel Kant, The Metaphysical Elements of Justice (99-107; Ak. 331-337).  After dismissing Cesare Beccaria’s abolitionist stance and reliance on “sympathetic sentimentality and an affectation of humanitarianism,” Kant appeals to an interpretation of lex talionis , what he calls “ jus talionis ” or “the Law of Retribution,” as justifying capital punishment:

Judicial punishment… must in all cases be imposed on him only on the ground that he committed a crime.… He must first be found deserving of punishment… The law concerning punishment is a categorical imperative. (100; Ak. 331) What kind and degree of punishment does public legal justice adopt as its principle and standard?  None other than the principle of equality….  Only the Law of Retribution ( jus talionis ) can determine exactly the kind and degree of punishment (101; Ak. 332).

Kant then explicitly applies these principles to determine the punishment for the most serious of crimes:

 If… he has committed a murder, he must die.  In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is also no equality between the crime and retribution unless the criminal is judicially condemned and put to death (102; Ak. 333).

Kant then employs a hypothetical case to insist that any social effects of the death penalty, good or bad, are wholly irrelevant to its justification:

Even if a civil society were to dissolve… the last murderer in prison would first have to be executed so that each should receive his just deserts and that the people should not bear the guilt of a capital crime… [and] be regarded as accomplices in the public violation of justice (102; Ak. 333).

So, even if social effects are not possible, since the society no longer exists, the death penalty is justified for murder.  Kant exemplifies a pure retributivism about capital punishment: murderers must die for their offense, social consequences are wholly irrelevant, and the basis for linking the death penalty to the crime is “the Law of Retribution,” the ancient maxim, lex talionis , rooted in “the principle of equality.”

The key to Kant’s defense of capital punishment is “the principle of equality,” by which the proper, merited amount and kind of punishment is determined for crimes.  Whether the best interpretation of Kant or not, the idea behind this common approach seems to be that offenders must suffer a punishment equal to the victim’s suffering: “an eye for an eye, a tooth for a tooth,” a life for a life.  But as often noted, any literalism about lex talionis cannot work as a general principle linking crimes and punishments. It seems to imply that the merited punishment for rape is to be raped, for robbery to be stolen from, for fraud to be defrauded, for assault to be assaulted, for arson to be “burned out,” etc.  For other crimes—forgery, drug peddling, serial killings or massacres, terrorism, genocide, smuggling—it is not at all clear what kind or form of punishment lex talionis would then license or require (for example, Nathanson 72-75).  As C. L. Ten succinctly says, “it would appear that the single murder is one of the few cases in which the lex talionis can be applied literally” (151).  Both practical considerations and moral principles about permissible forms of punishment, then, ground objections to invoking a literal interpretation of lex talionis to justify capital punishment for murder.

Some retributivists employ a less literal way of employing a principle of equality to justify death as the punishment for murder.  The relevant equivalence is one of harms caused and suffered:  the murder victim suffers the harm of a life ended, and the only equivalent harm to be imposed as punishment, then, must be the death of the killer.  As a general way of linking kinds of misconduct and proper amounts, kinds, or forms of punishment, this rendition of lex talionis also faces challenges (Ten, 151-154).  Furthermore, it is also often noted that, even in the case of murder, there is no equivalence between the penal experience of capital offenders and their victims’ suffering in being murdered.  Albert Camus, in his “Reflections on the Guillotine,” makes the point in a rather dramatic way:

But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared?  If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months.  It is not in private life that one meets such monsters.  (199)

This inequality of experience claim is even more to the point since even Kant maintains that “the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it” (102; Ak. 333).

b. Lex talionis as a Principle of Proportionality

Most contemporary retributivists interpret lex talionis not as expressing equality of crimes and punishments, but as expressing a principle of proportionality for establishing the merited penal response to a crime such as murder.  The idea is that the amount of punishment merited is to be proportional to the seriousness of the offense, more serious offenses being punished more severely than less serious crimes.  So, one constructs an ordinal ranking of crimes according to their seriousness and then constructs a corresponding ranking of punishments according to their severity.  The least serious crime is then properly punished by the least severe penalty, the second least serious crime by the second least severe punishment, and so on.  The gravest misconduct, then, is properly addressed by the most severe of punishments, death.

To carry out such a general project of constructing scales of crimes and matching punishments is a daunting challenge, as even many retributivists admit.  Aside from these concerns, as a defense of capital punishment this approach to lex talionis simply raises the question about the morality of the death penalty, even for the most serious of crimes.   There is no reason to think that current capital punishment practices are the most severe punishment.  Consider medieval practices of death with torture, or death “with extreme prejudice”; and are there not possible conditions of confinement that are possibly more severe than execution, such as years of brutal, solitary confinement or excessively hard labor?  Such punishments would not likely now be on a list of morally permissible penal responses to even the most serious crimes.  But then what is needed is some justification for setting an upper bound of morally permissible severity for punishments, “a theory of permissibility” (Finkelstein, “A Contractarian Approach…,” 212-213).  But whether today’s death penalty is morally permissible is precisely the question at issue.  The retributivist proportionality interpretation of lex talionis simply assumes capital punishment is morally permissible, rather than offering a defense of it.

One general concern about appeals to lex talionis , under any interpretation, is that relying on “the law of retaliation” can appear to make capital punishment tantamount to justified vengeance.  But Kant and other retributivist defenders of the death penalty rightly distinguish principled retribution from vengeance.   Vengeance arises out of someone’s hatred, anger, or desires typically aimed at another:  there is no internal limit to the severity of the response, except perhaps that which flows from the personal perspective of the avenger.  The avenger’s response may be markedly disproportionate to the offense committed, whereas retributivists insist that the severity of punishments must be matched to the misconduct’s gravity.  Vengeance is typically personal, directed at someone about whom the avenger cares—it is personal.  Retribution requires responses even to injuries of people no one cares about:  its impersonality makes harms to the friendless as weighty as harms to the popular and justifies punishment without regard to whether anyone desires the offender suffer.  The avenger typically takes pleasure in the suffering of the offender, whereas “we may all deeply regret having to carry out the punishment” (Pojman, 23) or only take “pleasure at justice being done” (Nozick, 367) as a retributivist moral principle requires.  Even if desires for vengeance are satisfied by executing murderers, for retributivists such effects are not at the heart of the defense of capital punishment.  And to the extent that such satisfactions are sufficient justification, then the defense is no longer retributivist, but utilitarian or consequentialist (see sections 3 and 4).  For retributivists the morality of the death penalty for murder is a matter of general moral principle, not assuaging any desires for revenge or vengeance on the part of victims or others.

c. Retributivism and the Right to Life

Some forms of retributivism about capital punishment eschew reliance on lex talionis in favor of other kinds of moral principles, and they typically depart from Kant’s conclusion that murderers must be punished by death, regardless of any consequences.  One approach employs the idea of basic moral rights, such as the right to life, an expression of the value of life that seems to work against justifying capital punishment.   Yet John Locke, for example, in his Second Treatise on Government , posits both a natural right to life and defends the death penalty for murderers.  Echoing a line of reasoning exhibited in Thomas Aquinas’s defense of capital punishment ( Summa Theologiae II-II, Q. 64, a.2), Locke claims that a murderer violates another’s right to life, and thereby “declares himself… to be a noxious creature… and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts… both to deter others from doing the like injury… and also to secure men from the attempts of a criminal” ( Treatise , sections 10-11).  For Locke, murderers have, by their voluntary wrongdoing, forfeited their own right to life and can therefore be treated as a being not possessing any right to life at all and as subject to execution to effect some good for society.

This retributivist position notably departs from Kant’s extreme view in concluding only that a murderer may be put to death, not must be, and by invoking utilitarian thinking as a secondary consideration in deciding whether capital punishment is morally justified for murderers who have forfeited their right to life.  This form of retributivism—rights forfeiture and considering consequences of the death penalty—is also explicitly expressed by W. D. Ross in his 1930 book, The Right and the Good :

But to hold that the state has no duty of retributive punishment is not necessarily to adopt a utilitarian view of punishment.… [T]he main element in any one’s right to life or property is extinguished by his failure to respect the corresponding right in others.… [T]he offender, by violating the life or liberty or property of another, has lost his own right to have his life, liberty, or property respected, so that the state has no prima facie duty to spare him as it has a prima facie duty to spare the innocent.  It is morally at liberty to injure him as he has injured others, or to inflict any lesser injury on him, or to spare him, exactly as consideration of both of the good of the community and of his own good requires. (60-61)

The retributivist argument, then, is that murderers forfeit their own right to life by virtue of voluntarily taking another’s life.  Since a right to life, like other rights, logically entails a correlative duty of others (see Consequentialism and  Ethics, section 2b ), by forfeiting their right to life murderers eliminate the state’s correlative duty not to kill them; the murderer’s forfeiture makes morally permissible the state’s putting them to death, at least as a means to some good.  Thus, capital punishment is not a violation of an offender’s right to life, as the offender has forfeited that right, and the death penalty is then justifiable as a morally permissible way to treat murderers in order to effect some good for society.

This kind of retributivist approach to capital punishment raises philosophic issues, aside from its reliance on empirical claims about the effects of the death penalty as a way to deter or incapacitate offenders (see section 3b). First, though the idea of forfeiting a right may be familiar, it leaves “troubling and unanswered questions: To whom is it forfeited? Can this right, once forfeited, ever be restored? If so, by whom, and under what conditions” (Bedau, “Capital Punishment,” 162-3)?  Second, given that the right to life is so fundamental to all rights and, as many maintain, held equally by each and all because they are humans, perhaps the right to life is exceptional or even unique in not being forfeitable at all: the right to life is actually a fundamental natural or human right.  One’s actions cannot and do not alter one’s status as a human being, Locke and Aquinas notwithstanding; thus, the right to life is inalienable and not forfeitable.  Even killers retain their right to life, the state remains bound by the correlative duty not to kill a murderer, and capital punishment, then, is a violation of the human right to life.

Developed in this way, as a matter of fundamental human rights, the merit of capital punishment becomes more about the moral standing of human beings and less about the logic and mobility of rights through forfeiture or alienation.  The point of a human right to life is that it “draws attention to the nature and value of persons, even those convicted of terrible crimes.… Whatever the criminal offense, the accused or convicted offender does not forfeit his rights and dignity as a person” (Bedau, “Reflections,” 152, 153).   This view reflects at least the spirit of the 1948 United Nations Universal Declaration of Human Rights: the right to life is universal, is rooted in each person’s dignity, and is unalienable (Preamble; Article 3).   But this view of offenders’ moral standing can be challenged if one considers the implication that, of equal standing with any of us, then, are masters of massacres or genocide (for example, Hitler, Stalin, Pol Pot), serial killers, terrorists, rampant rapists, and pedophiliac predators.  As one retributivist defender of capital punishment puts it, “though a popular dogma, the secular doctrine that all human beings have… worth is groundless.  The notion… [is] perhaps the most misused term in our moral vocabulary.… If humans do not possess some kind of intrinsic value… then why not rid ourselves of those who egregiously violate… our moral and legal codes” (Pojman, 35, 36).

d. Retributivism and Fairness

A recently revived retributivism about the death penalty builds not on individual rights, but on a notion of fairness in society.  Given a society with reasonably just rules of cooperation that bestow benefits and burdens on its members, misconduct takes unfair advantage of others, and punishment is thereby merited to address the advantage gained:

A person who violates the rules has something that others have—the benefits of the system—but by renouncing what others have assumed, the burdens of self-restraint, he has acquired an unfair advantage.  Matters are not even until this advantage is in some way erased….[P]unishing such individuals restores the equilibrium of benefits and burdens. (Morris 478)

The morally justified amount, kind, or form of punishment for a crime is then determined by an “unfair advantage principle”:

His crime consists only in the unfair advantage… [taken] by breaking the law in question. The greater the advantage, the greater the punishment should be.  The focus of the unfair advantage principle is on what the criminal gained.”  (Davis 241)

In justifying an amount of punishment, then, an unfairness principle focuses on the advantage gained, whereas the lex talionis principle attends to the harm done to another (Davis 241).

The fairness approach to punishment reflects recent uses of “the principle of fairness” as a theory of political obligation:  those engaged in a mutually beneficial system of cooperation have a duty to obey the rules from which they benefit (Rawls, 108-114).  As applied to punishment, though, its roots run also to ancient, archaic notions of justice as re-establishing an equilibrium, to Aristotle’s Nichomachean Ethics treatment of justice as requiring state corrective action to rectify the imbalances created by criminal misconduct (Book V, Chapter 4), and to G.W.F. Hegel’s claim in The Philosophy of Right that to punish “is to annul the crime… and to restore the right” (69, 331n).   Today’s popular parlance that punishment is how offenders pay for their crimes can also be seen as their paying for unfair advantages gained.

As a general approach to justifying the amount of punishment merited for misconduct, the fairness approach initially appears to work best for petty theft or possibly “free-loading” in cooperative schemes, such as penalizing tax evasion.   In such cases one can perhaps see unfair advantage gained and see the amount of punishment as tied to what is unfairly gained.  But for violent crimes such as murder, the fairness approach seems less plausible.  How does lengthy incarceration or even execution erase the unfair advantage gained, annul the crime, or  re-establish any prior balance between perpetrator and victim?  To the extent that punishment affects such things, it risks conflating retribution with restitution or restoration.  The unfair advantage principle also characterizes the wrong committed not in terms of its effects on a victim, but on third parties—society members who exercise self-restraint by obeying those norms the offender violates.  This oddly places the victim of criminal misconduct, especially for violent crimes: the person assaulted or killed is not the focus in justifying the amount of punishment, but third parties’ burdens of self-restraint are.  Additionally, taken by itself, the unfair advantage approach to establishing the proper amount of punishment can also have some odd consequences, as Jeffrey Reiman rather colorfully suggests:

For example, it would seem that the value of the unfair advantage taken of law-obeyers by one who robs a great deal of money is greater than the value of the unfair advantage taken by a murderer, since the latter gets only the advantage of ridding his world of a nuisance while the former will be able to make a new life… and have money left over for other things.  This leads to the counterintuitive conclusion that such robbers should be punished more severely… than murderers.  (“Justice, Civilization,…,” note 10)

The death penalty for murder, then, would not obviously be morally justified if the general criterion for the amount of punishment is an unfair advantage principle.

A defense of the death penalty for murder has been proposed by employing another version of this general approach to punishment.  The key is seeing the kind of unfair advantage gained by a murderer.  As Reiman suggests in the spirit of Hegelian retributivism, the act of killing another disrupts “the relations appropriate to equally sovereign individuals;” it is “an assault on the sovereignty of an individual that temporarily places one person (the criminal) in a position of illegitimate sovereignty over another (the victim)”; then there is “the right to rectify this loss of standing relative to the criminal by meting out a punishment that reduces the criminals’ sovereignty to the degree to which she vaunted it above her victim’s” (“Why…,” 89-90).   So, if a murder is committed and a life taken, the idea is that the amount of permissible punishment is for the state, as the victim’s agent, to assert a supremacy over the criminal similar to that already asserted by the killer; and to do that it is permissible for the state to impose the death penalty for murder.  So, on this interpretation of the fairness principle, the death penalty for murder is morally justified, though, for other crimes, it may not be “easy or even always possible to figure out what penalties are equivalent to the harms imposed by offenders” (Reiman, “Why…,” 69-90, 93).  As with other forms of retributivism, the fairness approach, on either interpretation, is challenged by the plausibility of using a principle that adequately addresses both the merits of capital punishment for murder and also generates a system of penalties that “fit” or are equivalent to various crimes.

e. Challenges to Retributivism

Retributivist approaches to capital punishment are many and varied.  But from even the small sample above, notable similarities are often cited as challenges for this way of thinking about the moral justification of punishment by death.   First, retributivism with respect to capital punishment either invokes principles that are plausible, if at all, only for death as penalty for murder; or it relies on principles met only with reasoned skepticism about their general adequacy for constructing a plausible scale matching various crimes with proper penal responses.

Second, retributivists presuppose that persons are responsible for any criminal misconduct for which they are to be punished, but actually instituting capital punishment confronts the reality of some social conditions, for example, that challenge the presupposition of voluntariness and, in the case of the fairness approach, that challenge the presupposition of a reasonably just system of social cooperation (see section 5b).  Third, it is often argued that, in addressing the moral merits of capital punishment, retributivists ignore or make markedly secondary the causal consequences of the practice.  What if no benefits accrue to anyone from the practice of capital punishment?  What if capital punishment significantly increases the rate of murders or violent crimes?  What if the institution of capital punishment sometimes, often, or inevitably is arbitrary, capricious, discriminatory, or even mistaken in its selecting those to be punished by death (see section 5)?  These and other possible consequences of capital punishment seem relevant, even probative.  The challenge is that retributivists ignore or diminish their importance, perhaps defending or opposing the death penalty despite such effects and not because of them.

3. Utilitarian Approaches

A utilitarian approach to justifying capital punishment appeals only to the consequences or effects of death being the penalty for serious crimes, such as murder.  A utilitarian approach, then, is a kind of consequentialism and is often said to be “forward looking,” in contrast to retributivists’ “backward looking” approach.   More specifically, a utilitarian approach sees punishment by death as justified only if that amount of punishment for murder best promotes the total happiness, pleasure, or well-being of the society.  The idea is that the inherent pain and any negative effects of capital punishment must be exceeded by its beneficial effects, such as crime prevention through incapacitation and deterrence; and furthermore, the total effects of the death penalty—good and bad, for offender and everyone else—must be greater than the total effects of alternative penal responses to serious misconduct, such as long-term incarceration.   A utilitarian approach to capital punishment is inherently comparative in this way: it is essentially tied to the consequences of the practice being best for the total happiness of the society.  It follows, then, that a utilitarian approach relies on what are, in principle, empirical, causal claims about the total marginal effects of capital punishment on offenders and others.

a. Classic Utilitarian Approaches: Bentham, Beccaria, Mill

A classic utilitarian approach to punishment is that of Jeremy Bentham.  In chapters XIII and XIV of his lengthy work, An Introduction to the Principles of Morals and Legislation , first published in 1789, Bentham addresses the appropriate amount of punishment for offenses, or, as he puts it, “the proportion between punishments and offences.”  He begins with some fundamental features of a utilitarian approach to such issues:

The general object which all law have, or ought to have in common, is to augment the total happiness of the community.… But all punishment is mischief: all punishment in itself is evil.  Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.  (XIII. I, ii.)

Bentham continues by noting the importance of attending to “the ends of punishment”:

The immediate principal end of punishment is to control action.… [T]hat of the offender it controls by its influence… on his will, in which case it is said to operate in the way of reformation ;  or on his physical power, in which case it is said to operate by disablement : that of others it can influence no otherwise than by its influence over their wills; in which case it is said to operate in the way of example . (XIII. ii. fn. 1)

So, there are three major ends of punishment related to controlling people’s action in ways promoting the total happiness of the community through crime reduction or prevention: reformation of the offender, disablement (that is, incapacitation) of the offender, and deterrence (that is, setting an example for others).   Of these three ends of punishment, Bentham says “example” – or deterrence – “is the most important end of all.” (XIII. ii. fn 1).  Since “all punishment is mischief [and] an evil,” any amount of punishment, then, is justified only if that mischief is exceeded by the penalty’s good effects, and, most importantly for Bentham, only if the punishment reduces crime by deterring others from misconduct and does so better than less painful punishments.  In other writings, Bentham explicitly applies his utilitarian approach to capital punishment, first allowing its possible justification for aggravated murder, particularly when the “effect may be the destruction of numbers” of people, and then, years later and late in life, calling for its complete abolition (Bedau, “Bentham’s Utilitarian Critique…”).

In his own writing about law, Bentham notably praises and acknowledges Cesare Beccaria’s On Crimes and Punishments , its utilitarian approach to penal reform, and its call for abolishing capital punishment. Beccaria called for abolition of the death penalty largely by appealing to its comparative inefficacy in reducing the crime rate.  In Chapter XII of his essay, Beccaria says the general aim of punishment is deterrence and that should govern the amount of punishment to be assigned crimes:

The purpose of punishment… is nothing other than to dissuade the criminal from doing fresh harm to his compatriots and to keep other people from doing the same.  Therefore, punishments and the method of inflicting them should be chosen that… will make the most effective and lasting impression on men’s minds and inflict the least torment on the body of the criminal. (23; Ch. XII)

He then argues that “capital punishment is neither useful nor necessary” in comparison to the general deterrent effects of lengthy prison sentences:

[T]here is no one who, on reflection, would choose the total and permanent loss of his own liberty, no matter how advantageous a crime might be.  Therefore, the intensity of a sentence of servitude for life, substituted for the death penalty, has everything needed to deter the most determined spirit.… With capital punishment, one crime is required for each example offered to the nation; with the penalty of a lifetime at hard labor, a single crime affords a host of lasting examples” (49-50, 51; Ch. XXVIII).

The idea here is that an execution is a single, severe event, perhaps not long remembered by others, whereas life imprisonment provides a continuing reminder of the punishment for misconduct.  In general, Beccaria says, “[i]t is not the severity of punishment that has the greatest impact on the human mind, but rather its duration, for our sensibility is more easily surely stimulated by tiny repeated impressions than by a strong but temporary movement” (49; Ch. XXVIII).

Beccaria adds to this thinking at least two claims about some bad social effects of capital punishment: first, for many the death penalty becomes a spectacle, and for some it evokes pity for the offender rather than the fear of execution needed for effective deterrence of criminal misconduct (49; Ch. XXVIII).  Second, “capital punishment is not useful because of the example of cruelty which it gives to men.… [T]he laws that moderate men’s conduct ought not to augment the cruel example, which is all the more pernicious because judicial execution is carried out methodically and formally” (51; Ch. XXVIII).  Thus, Beccaria opposes capital punishment by employing utilitarian thinking: the primary benefit of deterrence is better achieved through an alternative penal response of “a lifetime at hard labor,” and, furthermore, the cruelty of the death penalty affects society in ways much later called “the brutalization effect.”

Another major utilitarian, John Stuart Mill, also exemplifies distinctive facets of a utilitarian approach, but in defense of capital punishment.  In an 1868 speech as a Member of Parliament, Mill argues that capital punishment is justified as penalty for “atrocious cases” of aggravated murder (“Speech…,” 268).  Mill maintains that the “short pang of a rapid death” is, in actuality, far less cruel than “a long life in the hardest and most monotonous toil… debarred from all pleasant sights and sounds, and cut off from all earthly hope” (“Speech…,” 268).  As Sorell succinctly summarizes Mill’s position, “hard labor for life is really a more severe punishment than it seems, while the death penalty seems more severe than it is” (“Aggravated Murder…,” 204).  Since the deterrent effect of a punishment depends far more on what it seems than what it is, capital punishment is the better deterrent of others while also involving less pain and suffering for the offender.  Such a combination “is among the strongest recommendations a punishment can have” (Mill, “Speech…,” 269). And so, Mill says, “I defend [the death penalty] when confined to atrocious cases… as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime” (“Speech…, 268).

b. Empirical Considerations: Incapacitation, Deterrence

A utilitarian approach to capital punishment depends essentially on what are, in fact, the causal effects of the practice, whether the death penalty is, in fact, effective in incapacitating or deterring potential offenders.  If, in fact, it does not effect these ends better than penal alternatives such as lengthy incarceration, then capital punishment is not justified on utilitarian grounds.   In principle, at least, the comparative efficacy of capital punishment is therefore an empirical issue.

A number of social scientific studies have been conducted in search of conclusions about the effects of capital punishment, at least in America.  With respect to the end of incapacitation, any crime prevention benefit of executing murderers depends on recidivism rates, that is, the likelihood that murderers again kill.  Recent studies of convicted murderers—death row inmates not executed, prison homicides, parolees, and released murderers—indicate that the recidivism rate is quite low, but not zero: a small percentage of murderers kill again, either in prison or upon release (Bedau, The Death Penalty , 162-182).  These crimes, of course, would not have occurred were capital punishment imposed, and, so, the death penalty does prevent commission of some serious crimes.  On the other hand, for a utilitarian, these benefits of incapacitation through execution must exceed those for possible punitive alternatives.  The data reflects recidivism rates under current practices, not other possible alternatives.  If, for example, pardons and commutations were eliminated for capital crimes, if atrocious crimes were punished by a life sentence without any possibility of parole, or if conditions of confinement were such that prison murders were not possible (for example, shackled, solitary confinement for life), then the recidivism rate might approach or be zero.  One issue, then, is how high or low a recidivism rate decides the justificatory issue for capital punishment.  Another issue is the moral permissibility of establishing conditions of confinement so restrictive that even murders in prison are reduced to nearly zero.

Since the mid-twentieth century, in America a number of empirical studies have been conducted in order to assess the deterrent effects of capital punishment in comparison to those of life imprisonment.  Scholars analyzed decades of data to compare jurisdictions with and without the death penalty, as well as the effects before and after a jurisdiction abolished or instituted capital punishment.   Such analyses “do not support the deterrence argument regarding capital punishment and homicide” (Bailey, 140).  Sophisticated statistical studies published in the mid-1970s claimed to show that each execution deterred seven to eight murders.  This exceptional study and its methodology have been much criticized (Bailey, 141-143).  Additional, more recent studies and analyses have “failed to produce evidence of a marginal deterrent effect for capital punishment” (Bailey, 155).  As indicated by Jeffrey Reiman’s succinct summary and numerous, cited literature surveys (“Why…” 100-102), nearly all relevant experts claim there is no conclusive evidence that capital punishment deters murder better than substantial prison sentences.

Determining the deterrent effects of capital punishment does present significant epistemic challenges.  In comparative studies of jurisdictions with and without the death penalty, “there simply are too many variables to be controlled for, including socio-economic conditions, genetic make-up,” demographic factors (for example, age, population densities), varying facets of law enforcement, etc.  (Pojman, 139). Numerous variables may or may not explain the data attempting to link crime rates and the death penalty in different places or times (Pojman, 139). Second, as Beccaria notes, for example, deterrent effects plausibly depend importantly on the certainty, speed, and public nature of penal responses to criminal conduct.  These factors have not been much evident in recent capital punishment practices in America, which may explain the lack of evidence revealed by recent statistical studies.  Third, deterrence is a causal concept:  the idea is that potential murderers do not kill because of the death penalty.  So, the challenges are to measure what does not occur—murders – and to establish what causes the omission—the death penalty.  The latter element is even more challenging to measure because most who do not murder do so out of habit, character, religious beliefs, lack of opportunity, etc., that is, for reasons other than any perceived threat or fear of execution by the state.  Deterrence studies, then, attempt to establish empirically a causal relationship for a small minority of people and omitted homicides within a death penalty jurisdiction.  Finally, there are disagreements about the importance of the studies’ conclusions.  For example, abolitionists typically see that, despite numerous attempts, the failure to provide conclusive evidence strongly suggests there is no such effect: the death penalty, in fact, does not deter.  Defenders of capital punishment are inclined to interpret the empirical studies as being inconclusive: it remains an open question whether the death penalty deters sufficiently to justify it.  And all this is further complicated by the fact that some studies focus on the effects of capital statutes and others look for links between actual executions and crime rates.

c. Utilitarian Defenses: “Common Sense” and “Best Bet”

Regardless of the outcomes or probative value of statistical studies, justifying capital punishment on grounds of deterrence may still have merit.  It would seem, some maintain, that “common sense” supports the notion that the death penalty deters.  The deterrence justification of capital punishment presupposes a model of calculating, deliberative rationality for potential murderers.  What people cherish most is life; what they most fear is being killed.  So, given a choice between life in prison and execution by the state, most people much prefer life and therefore will refrain from misconduct for which death is the punishment.  In short, “common sense” suggests that capital punishment does deter.  But this kind of appeal to “common sense” ignores the essentially comparative aspect of appeals to deterrence as justification: though capital punishment may deter, it may not deter any more (or significantly more) than a long life in prison. We cannot equate “what is most feared” with “what most effectively deters” (Conway, 435-436; Reiman, “Why…,” 102-106).

Another way of looking at capital punishment in terms of deterrence relies on making the best decision under conditions of uncertainty.  Given that the empirical evidence does not definitively preclude that capital punishment is a superior deterrent, “the best bet” is to employ the death penalty for serious crimes such as murder.  If capital punishment is not, in fact, a superior deterrent, then some murderers have been unnecessarily executed by the state; if, on the other hand, death is not a possible punishment for murder and capital punishment is, in fact, a superior deterrent, then some preventable killings of innocent persons would occur.  Given the greater value of innocent lives, the less risky, better option justifies capital punishment on grounds of deterrence. But the argument crucially depends on comparative risk assessments: if there is capital punishment, then certainly some murderers will be killed, whereas without the death penalty there is only a remote chance that more innocent lives would be victims of murder (Conway, 436-443).  Furthermore, the argument openly assumes that not all lives are equal—those of the innocent are not to be risked as much as those who have murdered—and that, for some, is a fundamental moral issue at stake in justifying capital punishment (see section 2c; Pojman, 35-36).

d. Challenges to Utilitarianism

Utilitarian approaches to justifying punishment are controversial and problematic, perhaps most often with respect to possibly justifying punishment of the innocent as a means to preventing crime and promoting total happiness of a society.  Even ignoring this issue and focusing only on justifying the proper amount of punishment for the guilty and the death penalty, in particular, there are concerns to be considered about a utilitarian approach.  The objection is that a utilitarian approach to the death penalty relies on a suspect general criterion—deterrence—for establishing the proper amount of punishment for crimes.  It is often argued that, for purposes of crime prevention through deterrence, a utilitarian is committed, at least in principle, to excessively severe punishments, such as torturous and gruesome executions in public even for crimes much less serious than murder (for example, Ten, 34-35, 143-145).  The idea is that the pain of excessively severe and public punishments for minor crimes is more than counterbalanced by a significant reduction in a crime rate.  It is also argued that significant crime rate reductions could perhaps be achieved, in some circumstances, by disproportionately minor punishments:  if fines, light prison sentences, or even fake executions could deter as well as actual ones, then a utilitarian is committed to disproportionately mild penalties for grave crimes.  Utilitarians respond to such possibilities by indicating additional considerations relevant to calculating the total costs of such disproportionate punishments, while critics continue creating even more elaborate, fantastic counterexamples designed to show the utilitarian approach cannot always avoid questions about the upper or lower limits of morally permissible penal responses to misconduct.  As C. L. Ten summarizes succinctly, a utilitarian approach establishing a proper amount of punishment is “inadequate to account for both the strength of the commitment to the maintenance of a proportion between crime and punishment, and [to] the great reluctance to depart… from that proportion when required to so do by purely aggregative consequential considerations” (146).

Another common criticism of the utilitarian approach points to the very structure of justifications rooted in deterrence.  As evident in Bentham’s classic statements, for example, the purpose of punishment “is to control action,” primarily through deterrence (see section 3a).  Punishments deter and “control action” by example, by the demonstration to others that they, too, will suffer similarly should they similarly misbehave. Capital punishment, then, aims to deter actions of potential killers by inflicting death on actual ones: the technique works by threat, by instilling fear in others.  A fundamental objection to this way of thinking is to see that, in effect, persons are being used as a means to controlling others’ actions; capital offenders are being used simply as a means to deter others and reduce the crime rate.  Such a use of persons is morally impermissible, it is argued, echoing Immanuel Kant’s famous categorical imperative against treating any person merely as means to an end.  No gain in deterrence, incapacitation, or other beneficial effects can justify deliberately killing a captive human being as a means to even such desirable ends as deterring others from committing grave crime.  The argument, then, is that justifying capital punishment on grounds of deterrence is a morally impermissible way to treat persons, even those found to have committed atrocious crimes.

e. Other Consequential Considerations

In discussions of capital punishment, it is deterrence that receives much of the attention for those exploring a utilitarian approach to the moral justification of the practice.  There are, however, other significant consequences of the death penalty that are relevant, as noted even by classic utilitarians.  Beccaria, for example, asserts a brutalization effect on society: executions are cruel and are examples to others of the states’ cruelty.  The suggestion seems to be that capital punishment increases people’s tolerance for another’s suffering, their callousness about human suffering, a willingness to impose suffering on another, even the rate of violent crimes (for example, assaults or homicides).  In contrast, one recent defender of the death penalty, Jeffrey Reiman, argues that, for some developed societies, abolition of capital punishment for serious crimes shows restraint and thereby actually advances civilization by reducing our tolerance for others’ suffering.  Such claims are, in principle, empirical ones about the causal effects of the practice of capital punishment.  As with recent deterrence studies, there is no clear empirical evidence of any brutalizing or civilizing effects of capital punishment.

For classic utilitarian thinking, another important consequence of punishment is its effect on the offender.   According to Jeremy Bentham, one of the three ends of punishment is reform of the offender through “its influence on his will” (XIII.ii. fn. 1).  This penal aim of reform (or rehabilitation) may suggest capital punishment is not justifiable for any crime.  But that need not be the case.  The ancient Roman Stoic Seneca, for example, argues that proper punishment for criminal misconduct depends on its “power to improve the life of the defendant” (Nussbaum, 103).   But he also defends capital punishment as a kind of merciful euthanasia: execution is “in the interest of the punished, given that a shorter bad life is better than a longer one” (Nussbaum, 103, note 43).  Plato also defends capital punishment by looking to its impact on the offender.  In his later works and as part of a general theory of penology, Plato maintains that the primary penal purpose is reform—to “cure” offenders, as he says.  For crimes that show offenders are “incurable,” Plato argues execution is justifiable.  In his late work, The Laws, Plato explicitly prescribes capital punishment for a wide range of offenses, such as deliberate murder, wounding a family member with the intent to kill, theft from temples or public property, taking bribes, and waging private war, among others (MacKenzie; Stalley).  In a utilitarian approach to capital punishment, then, attending to the end of reforming offenders need not be irrelevant to possible moral justifications of the death penalty.

4. Capital Punishment as Communication

A cluster of distinctive approaches to issues of justifying punishment and, at least by implication, the death penalty, are united by taking seriously the idea of punishment as expression or communication.  Often called “the expressive theory of punishment,” such approaches to punishment are sometimes classified as utilitarian or consequentialist, sometimes as retributivist, and sometimes as neither.  The root idea is that punishment is more than “the infliction of hard treatment” by an authority for prior misconduct; it is also “a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation….  Punishment, in short, has a symbolic significance ” (Feinberg, “The Expressive Function…,” 98).  Hard treatment, deprivations, incarceration, or even death can be, and perhaps are, vehicles by which messages are communicated by the community.  To see capital punishment as a deterrent is to see it as communicative:  the death penalty communicates to the community—at least potential killers—that murder is a serious wrong and that execution awaits those who kill others.  Various developments of punishment as communication, though, attend to other messages expressed, some emphasizing the sender and others the recipient of the message.

One version of this kind of approach emphasizes that, with capital punishment, a community is expressing strong disapproval or condemnation of the misconduct.  Sometimes called “the denunciation theory,” the basic contention is evident in Leslie Stephens’ late 19th-century work, Liberty, Equality, Fraternity (a reply to J.S. Mill’s On Liberty ), as well as by the oft-quoted remarks of Lord Denning recorded in the 1953 Report of the Royal Commission on Capital Punishment :

The punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else.… The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime; and from this point of view, there are some murders which, in the… public opinion, demand the most emphatic denunciation of all, namely the death penalty. (As quoted in Hart, “Punishment…,” 170)

In the United States, Supreme Court decisions in death penalty cases have more than once employed such reasoning:  a stable, ordered society is better promoted by capital punishment practices than risking “the anarchy of self-help, vigilante justice, and lynch law” as ways of expressing communal outrage (Justice Stewart, in Furman v. Georgia (1972), as quoted in Gregg v. Georgia (1976)).

As a defense of capital punishment, at least, this “denunciation theory” leaves multiple questions not adequately addressed.  For example, the approach presupposes some moral merit to popular sentiments of indignation, outrage, anger, condemnation, even vengeance or vindictiveness in response to serious misconduct.  There are significant differences between expressing such emotions and punishing justly or morally (see section 2b).  Secondly, the structure of the thinking seems entirely consequentialist or utilitarian: capital punishment is justified as effective means to communicate condemnation, or to satisfy others’ desires to see someone suffer for the crime, or as an outlet for strong, aggressive feelings that otherwise are expressed in socially disruptive ways.  Such utilitarian reasoning would seem to justify executing pedophiles or even innocent persons in order to communicate condemnation or avoid an “anarchy of self-help, vigilante justice, and lynch law.” On the other hand, even Jeremy Bentham argues that “no punishment ought to be allotted merely to this purpose” because such widespread satisfactions or pleasures cannot ever “be equivalent to the pain… produced by punishment” (Bentham XIII. ii. fn. 1).  Third, it leaves unanswered why the expression of communal outrage—even if morally warranted—is best or only accomplished through capital punishment.  Why would not harsh confinement for life serve as well any desirable expressive, cathartic function?  Or on what grounds are executions not to be conducted in ways torturous and prolonged, even publicly, as means of better communicating denunciation and expressing society’s outrage about the offenders’ misconduct?  And does not the death penalty also express or communicate other, conflicting messages about, for example, the value of life?  As a justification of capital punishment, even for the most heinous of crimes, a “denunciation theory” faces significant challenges.

Other uses of the idea of punishment as communication focus not on the sender of the message, but on the good of the intended recipient, the offender.  Punishment is paternalistic in purpose: it aims to effect some beneficial change in the offender through effective communication.  In Philosophical Explanations Robert Nozick, for example, holds that punishment is essentially “an act of communicative behavior” and the “message is: this is how wrong what you did was” (370).  Wrongdoers have “become disconnected from correct values, and the purpose of punishment is to (re)connect him” (374).  The justified amount of punishment, then, is tied to the magnitude of the wrong committed (363): “for the most serious flouting of the most important values… capital punishment is a response of equal magnitude” (377).  But, Nozick maintains, the aim of punishment is not to have an effect on the offender, but “for an effect in the wrongdoer: recognition of the correct value, internalizing it for future action—a transformation in him” (374-5).  This paternalistic end seems to preclude the death penalty being imposed for any kind of wrongdoing; however, in “truly monstrous cases” (for example, Adolph Hitler, genocides) there seems to be perhaps the highest magnitude of wrong, a disconnection from the most basic values, and acts worthy of the most emphatic penal expression possible.  As Nozick himself admits and others have noted, this approach to punishment as communication provides “no clear stable conclusion… on the issue of an institution of capital punishment” (378).

Some employing a similar reliance on punishment as communication are less ambivalent about its implications for the death penalty.   The “moral education theory of punishment,” its proponent maintains, precludes “cruel and disfiguring punishments such as torture or maiming,” as well as “rules out execution as punishment” (Hampton, 223).  This argument for death penalty abolition takes seriously the expressive, communicative function of punishments: as aiming to effect significant benefits in and for the offender and, through general deterrence and in other ways, as “teaching the public at large the moral reasons for choosing not to perform an offense” (Hampton, 213).  Punishment as education is not a conditioning program; it addresses autonomous beings, and the moral good aimed at is persons freely choosing attachment to that which is good.  Executing criminals, then, seems to require judging them as having “lost all their essential humanity, making them wild beasts or prey on a community that must, to survive, destroy them” (Hampton 223).  Furthermore, it is argued, capital punishment conveys multiple messages, for example, about the value of a human life; and, it is argued, since one can never be certain in identifying the truly incorrigible, the death penalty is morally unjustified in all cases.   As R.A. Duff puts the abolitionist point in Punishment, Communication, and Community (2001), “punishment should be understood as a species of secular penance that aims not just to communicate censure but thereby to persuade offenders to repentance , self – reform, and reconciliation” (xvii-xix).

Approaches to capital punishment as paternalistic communication are challenged on several grounds.  First, as a general theory of punishment, such expressive theories posit an extraordinarily optimistic view of offenders as open to the message that penal experiences aim to convey.  Are there not some offenders who will not be open to moral education, to hearing the message expressed through their penal experiences?  Are there not some offenders who are incorrigible?  On these approaches to capital punishment, the reasons against executing serious offenders are essentially empirical ones about the communicative effects on the public of executions or the limits of diagnostic capabilities in identifying the truly incorrigible.  Second, with respect to capital punishment, perhaps for some offenders, the experience of trial, sentencing, and awaiting execution does successfully communicate and effect reform in the offender, with the death penalty then imposed to affirm that which effected the beneficial reform in the offender.  Third, as with other approaches to punishment, the moral education theory renders it extremely difficult, if not impossible, to “fashion a tidy punishment table” pairing kinds of misconduct and merited penalties (Hampton, 228).  Focusing on reforming or educating a recipient of a message suggests very individualistic and situational sentencing guidelines.  Not only may this not be practical, such discretion in sentencing risks caprice or arbitrariness in punishing offenders by death or in other ways (see section 5); and it challenges the fundamental, formal principle of justice, that is, that like case be treated alike.  Finally, the implications of these approaches to punishment are quite at odds with the system of incarceration employed so universally for so many offenders.  The implications of punishment as communication aimed at the offender would require radical revisions of current penal practices, as some proponents readily admit.

5. The Institution of Capital Punishment

Much philosophic focus on punishment and the death penalty has been rooted in theoretical questions and principles.  A result is that philosophers have mostly ignored more practical matters and moral facets of the institution of capital punishment.  That historical tendency began to change in the mid-twentieth century with a decidedly American concern: whether the practice of capital punishment is legally permissible, given the United States Constitution’s eighth amendment prohibition of “cruel and unusual punishments.”  Scholars and lawyers investigated the history and continuing death penalty practices in America, producing evidence of racial discrimination in the institution of capital punishment, especially in southern states.  By the early 1970s, a series of United States Supreme Court decisions established especially elaborate criminal procedures to be followed in capital cases: bifurcated trials (one for conviction and one for establishing the sentence), a finding of at least one aggravator for a murder to be a capital crime, automatic appellate review of all sentences to death, guidelines for jury selections, etc. The aim of such “super due process” is to improve criminal procedures employed in capital cases so as avoid arbitrariness in administering the death penalty in America (Radin).

After implementation of these Court-mandated procedures for death penalty cases, a number of empirical studies indicated continuing concerns and problems with the practice of capital punishment in America.  For example, studies of capital cases conducted in some southern states showed that disproportionately large numbers of convicted murderers received death sentences if they were black, a disproportion even greater when the convicted murderer was black and the victim was white (Bedau, The Death Penalty , 268-274).   Also, especially with the advent of new, scientific sources of evidence (for example, DNA matching), studies suggest that numbers of persons innocent of any crime have been wrongly convicted, sentenced, and even executed for committing a capital crime (Bedau, The Death Penalty , 344-360).   Morally justifying punishment in theory is distinguishable from whether it is justified in practice, given extant conditions.  For some, even though questions of theory and practice are distinguishable, they may not be unrelated. As Stephen Nathanson asks, “does it matter if the death penalty is arbitrarily administered?”

a. Procedural Issues: Imperfect Justice

Moral arguments about the death penalty based on procedural issues attend to the outcomes and steps of a long and involved process “as a person goes the road from freedom to electric chair” (Black, 22).  Such a process involves an “entire series of decisions made by the legal system”:  whether to arrest; what criminal charges to file; decisions about plea bargaining offers, if any;  a criminal trial, with jury selection, countless tactical decisions, possible employment of a defense like insanity; sentencing that requires juries find and weigh statutory factors of aggravation and mitigation; post-conviction appeals and possible remedies decided; clemency decisions, to commute a sentence or even pardon the convicted (Black, 22-26).  It is apparent, then, “that the choice of death as the penalty is the result of not just one choice… but of a number of choices, starting with the prosecutor’s choice of a charge, and ending with the choice of the authority… charged with the administration of clemency” (Black, 27).  At each one of these points of decisions, it is argued, there is room for arbitrariness, mistakes, even discrimination.  Furthermore, it is impossible and undesirable to remove all latitude, all discretion, in order to allow each of these decisions to be properly made in light of the particularities of the case, person, situation.  And so, the institution of capital punishment, even as practiced in America, brings along with it “the inevitability of caprice and mistake” (Black).

A criminal trial and, more broadly, criminal procedures in toto are exemplars of what John Rawls, in A Theory of Justice , characterizes as imperfect procedural justice.   There is an independently defined standard external to the procedure by which we judge outcomes of the process; and there is no procedure “that is sure to give the desired outcome” (Rawls 74-75).  For criminal procedures, the aim is “to impose deprivations on all and only guilty convicted offenders because of their wrongdoing”; and for capital punishment, the aim is to impose the death penalty on all and only those guilty of committing crimes for which the merited amount of punishment is execution (Bedau, Reflections 173).  In capital procedures, too, it is “impossible to design the legal rules so that they always lead to the correct result” (Rawls, 75).  Whether due to inherent vagaries of legal language, the necessity of discretion to judge properly complex, particular cases, the fallibility of human beings, or political pressures and other factors affecting decisions made within the system, such as clemency, the risk of error is not eliminable for the institution of capital punishment.  Given unavoidably imperfect criminal justice procedures, at issue, then, is the moral import of any arbitrariness, caprice, mistake, or discrimination in the institution of capital punishment.

The appeal to procedural imperfections is often employed by those opposed to capital punishment and who seek its complete abolition on the grounds that its institution is intolerably arbitrary, capricious, or discriminatory in selecting who lives and who dies. This abolitionist reasoning is challenged in various ways.  Given the fact that there are imperfections in the system or practice of capital punishment, what follows is not abolition of the death penalty, but justification only for procedural improvements in order to reduce problematic outcomes.  A second issue, aside from disputes about the actual frequency of problematic outcomes, is a question of thresholds: how many imperfect outcomes are tolerable in the institution of capital punishment?  Abolitionists tend to have near-zero tolerance, whereas some defenders of capital punishment argue that some arbitrariness is acceptable.  For a utilitarian approach to capital punishment, assessing the total consequences—benefits and “costs”— of the death penalty must include the inevitable arbitrariness of its institution.  And in as much as any deterrent effects are linked to certainty of punishment, any degree of arbitrariness in administering capital punishment does affect a central utilitarian consideration in determining whether the institution is morally justified.  For retributivist approaches, the question is whether some arbitrariness in the institution violates requisite pre-conditions for morally justifying the institution of capital punishment (see section 2c).  Jeffrey Reiman, for example, argues, on retributivist grounds, that capital punishment is justified in principle; however, “the death penalty in… America is unjust in practice,” and he therefore favors abolition (see 5b).

A third issue for appeals to procedural imperfections involves limiting the scope of the argument for abolition.   Since all criminal cases are administered through unavoidably imperfect procedures, if arbitrariness justifies abolishing the death penalty for murder, then it would seem also to justify abolishing lesser punishments for less serious criminal misconduct.  In short, the imperfect administration of capital punishment matters morally only if the death penalty is distinctive among punishments.  Punishment by death is often said to be distinctive because, unlike incarceration, death is irrevocable.  But years spent imprisoned, for example, can also not be revoked, once they have been endured.  The idea must be that incarceration, if found to be mistaken, can be ceased: by executive or judicial action the imprisoned can be released and receive remedies, even if only gestures.   On the other hand, a death sentence, once executed, has none of those qualities: death is permanent; punishment by death has finality.  “Because of the finality and the extreme severity of the death penalty, we need to be more scrupulous in applying it as punishment than is necessary with any other punishment” (Nathanson, Eye , 67).

Another major issue involves distinguishing the kinds of imperfect outcomes resulting from the criminal procedures employed in capital cases.  For example, the arbitrariness evident in the procedures may be one of selectivity : among all the convicted killers who merit a death sentence, some of those are actually sentenced or executed and others are not.  As Ernest van den Haag argues, that some who merit the death penalty escape that punishment does not make morally unjustified selectively executing some who do merit that punishment (Nathanson, 49).  Analogies with selective ticketing for excessive speed support this kind of reasoning: justice is a matter of each individual being treated as they merit, without regard to how other, similar cases are treated.  But this argument makes what is just or justified entirely non-comparative, when substantive comparative considerations often are also necessary when arbitrariness or discrimination is at issue (Feinberg, “Noncomparative Justice,” 265-269).  Justice requires treating similar cases in similar ways, and this kind of arbitrary imposition of the death penalty violates that requirement.  Furthermore, it may matter morally what are the grounds of selecting only some convicted killers to receive death sentences or to be executed.  If the selectivity is based on race, for example, then the moral import of the arbitrariness might be far greater, whether for traffic tickets or the death penalty for murder.  Aside from the moral import of arbitrariness as selectivity, there is also an arbitrariness that issues in mistakes , where persons who did not commit a capital crime (or perhaps did not commit any crime at all) are wrongly convicted, sentenced and executed.  This sort of imperfect outcome would seem far more problematic morally than the selective execution of only some of those who merit the death penalty.  As Stephen Nathanson states it with respect to executing the innocent, “this is the moral force of the argument from arbitrary judgment” ( Eye , 53).

b. Discrimination: Race, Class

Criminal justice systems that administer the death penalty operate in the context of a society that may or may not itself be entirely just.  The procedures employed in capital cases, then, can be imperfect due to external social factors affecting its outcomes, and not only due to features internal to the structure of a legal system itself.  Various sources of data suggest to many that American criminal justice procedures produce disproportionately large numbers of capital convictions and death sentences for the poor and for African-Americans.  In short, it is claimed, the institution of capital punishment is imperfect, capricious, or arbitrary in a particular way: it discriminates on the basis of economic class and race.   Poverty and race, it is argued, have “warping effects” on the long, involved process whereby “a person goes the road from freedom to electric chair” (Black, 22).   At numerous decision points, a lack of funds affects how the process proceeds for a poor person charged with a capital crime: the quality of legal counsel for plea bargaining, investigation, and conduct of a trial; financial resources needed to build a strong evidentiary case through crime scene investigation, forensic testing, and expert testimony at trial;  money for background investigations, professional examinations, and expert testimony in the crucial sentencing phase of a capital trial; securing attorneys for legally required and elective appeals; accessing those political offices and officers with the legally unlimited authority to commute a sentence or even pardon a convicted offender.   Given the high correlation in America between poverty and race, any disproportionate outcomes with respect to economic class parallel those with respect to race.  Also, as described above, the “entire series of decisions made by the legal system” in capital cases provides numerous opportunities for unconscious racial bias or blatant discrimination in the exercise of discretion by those administering the process.  Opponents of the death penalty, then, see factors of race and poverty as increasing the likelihood of error in capital cases, and see such discriminatory outcomes as especially problematic from a moral point of view.

This line of reasoning invokes the specter of discrimination in the institution of capital punishment.  The basic empirical claim is that, by race and economic class, America’s imperfect procedures produce disproportionate outcomes.  The issue is not necessarily one of intentional racial discrimination, though that may occur, as well.  Considerations of perhaps unintended discriminatory outcomes, however, need not support abolition of the death penalty.  Aside from disputes about the data supporting the basic empirical claim of disproportionate outcomes, responses parallel those reviewed above with respect to the internal structures of criminal justice procedures in capital cases (see section 5a).  In particular, it is argued that disproportionate outcomes support reforms to mitigate such discrimination, such as quality legal representation being provided for the poor, increased budgetary allegations for defense of the indigent in capital cases, etc. And given that what explains the disproportionate outcomes are social conditions external to the process itself, it would seem that discriminatory outcomes are not inevitable in the way that the effects of ineliminable discretion might be.  The issue, then, becomes the moral import of problematic social conditions that “warp” the institution of capital punishment.  How does such “warping” affect any justification of the death penalty?  Does it matter morally that the institution of capital punishment exists amidst a society insufficiently just regarding matters of economic class or race?

For a utilitarian approach to capital punishment, the issue is addressed in terms of total consequences for the society.  As with other kinds of arbitrariness previously reviewed, any discriminatory outcomes of the institution of capital punishment are part of the total cost of the practice and are to be considered along with all other costs and benefits.  Depending on the causal consequences of the practice in a society at a given time, then, capital punishment is or is not morally justified.  For some retributivists, however, the relevance of current social conditions can be quite different for whether capital punishment is morally justified.  For example, the fairness approach to punishment and the death penalty presupposes a society with reasonably just rules of cooperation that bestow benefits and burdens on its members. Whether America today, for example, satisfies such a pre-condition is, for some, doubtful; and thus, it is argued, even if justified in theory, capital punishment is not justified under current social conditions (for example, Reiman).  Also, retributivists typically presuppose punishment is to address misconduct that is voluntary, a matter of free choice.  But Marx, for example, maintains that such a presupposition of free will is simply false, a delusion:

Is it not a delusion to substitute for the individual with his real motives, with multifarious circumstances pressing upon him, the abstraction of “free will”…?  Is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room for the supply of new ones?

Though Marx is himself sympathetic to a retributivist justification of punishment, theory and practice cannot be divorced.  Marx and many Marxists oppose capital punishment because it is inapplicable to the actual conditions of society where criminality is rooted in structural inequalities of wealth (Murphy).  Thus, for some retributivist and utilitarian approaches to capital punishment, the death penalty may be morally unjustified because of inherently imperfect legal procedures, morally problematic outcomes, or the social conditions surrounding the institution.

c. Medicine and the Death Penalty

In recent years, issues of medical ethics have been a facet of philosophic focus on the institution of capital punishment, especially in America.  Health care professionals—including physicians—can be active participants in the actual execution of a death-row prisoner.  Medical expertise needed for an execution itself can include administering medicines or psychiatric treatments to calm the condemned, judging whether intramuscular or intravenous techniques are best, or actually injecting a lethal dose of drugs to bring about a death (Gaie, 1).  Even if not directly participating in executions and regardless of the method of execution employed, health care professionals can be involved by providing capital trial testimony related to findings of guilt or punishment, such as competency to stand trial, possibly exculpating mental illness, or forensic analyses of murder scene evidence.  Physicians are needed to certify death following a successful execution, and they may have a role in possible organ donations arranged by the deceased (Gaie, 2).  All such participation requires relevant expertise and is important to contemporary death penalty practices.  An important question, however, is whether it is morally permissible for health care professionals to be involved or participate in the institution of capital punishment.

A common assumption is that health care professionals—physicians, at least—have significant moral duties to those they treat or administer to.  Many, like Gaie, address such issues of professional ethics as independent of the morality of capital punishment itself.  Thus, for example, since physicians have a duty to minimize suffering, it would seem to follow that medical professionals’ participation is morally justified for that purpose, perhaps especially in executions by lethal injection.  Others maintain that, analogous to relieving the suffering of a torture victim so that they can be further tortured, physicians ought not participate in executions in order to reduce the suffering of the condemned (Dworkin).  Physician participation in an unjust practice, such as capital punishment, makes them complicit and, so, they ought not be involved. Thus, it is argued, one cannot separate the ethics of physicians’ participation in capital punishment from the moral merits of the institution itself (Litton).

Since the early 1980s, lethal injection has almost completely replaced electrocution as the preferred method of execution for those convicted of a capital crime and sentenced to death in the United States.  This recent, novel method of execution has itself generated considerable controversy.  First, unlike other constitutionally permissible modes of execution in America (that is, electrocution, hanging, firing squad, gas inhalation), a lethal injection requires medical expertise in order to be administered properly.  Thus, health care professionals must be direct participants in executions: for example, by preparing the lethal drug dosages, by establishing suitable sites for an injection, and by actually administering the drugs that cause the death of the convicted.   In comparison to other methods of execution, such participation is more essential, more direct, and ethically more problematic.  Execution by lethal injection makes more acute and controversial the ethical issues surrounding the involvement of health care professionals in the institution of capital punishment.  Second, whether employing the typical three-drug “cocktail,” or some variant of that process, acquiring the designated pharmaceuticals has often become difficult or impossible.  Some foreign-based companies face legal restrictions on exporting drugs for such uses, and some foreign and domestic drug companies, for reasons of public image or ethical considerations, for example, choose not to manufacture or supply their pharmaceutical products for use in executions.  This sometimes delays execution or leads governments to employ alternative drugs for which there may not be sufficient evidence of their effectiveness in effecting a human death.  Third, whether any formulas for lethal injections are a humane way (or a more humane way) of causing death is itself controversial, with disputes about the science (or lack thereof) behind the drug formulas and protocols used, disagreements about the evidentiary significance of physiological data from autopsies used to assess the humanity of death by lethal injection, etc.  Finally, so-called “botched executions” are still not entirely avoided by using lethal injection rather than electrocution or hanging, for example.  Cases do occur where the condemned endure an extended process of dying that sometimes suggests lingering sentience, discomfort, or suffering.  As with other facets of the institution of the death penalty, there is disagreement about the import of such practical challenges for the moral justification of capital punishment.

d. Costs: Economic Issues

At least in popular discourse, if rarely among philosophic discussions, considerations of monetary cost are adduced with respect to morally justifying capital punishment.  As Stephen Nathanson rightly recognizes, in its bald form it is a simple economic argument:  the state ought to execute murderers because it is less costly than imprisoning them for life ( Eye , 33).  Even among proponents, though, cost considerations are perhaps plausibly relevant only as secondary, subsidiary supplements to some anterior justification for executing murderers: if murderers merit death as punishment for criminal misconduct, then economic cost is perhaps relevant to justifying their execution over a sentence of life spent in prison.

The argument depends crucially on the empirical claim that, in fact, it is less costly to execute murderers than it is to imprison them for life.  But the facts do not support this supposition.  The costs are not only those of a single execution, but for a system of due process and an infrastructure of facilities and personnel needed for the institution of capital punishment (Nathanson, Eye 36).  A possible reply is that such costs could be reduced, especially if we were to replace America’s elaborate “due process” for capital cases with something much more minimal: fewer appeals and appellate reviews, for example (Nathanson, Eye 38).  Such an approach may save some economic costs but increase the cost of thereby perhaps increasing the frequency of mistakes or arbitrariness.  Furthermore, reliance on comparative costs in determining who is executed potentially introduces a novel, morally suspect kind of arbitrariness.  Given that the cost of life imprisonment would be a function of a convicted murderer’s health and age, younger, healthier persons would be selected for the death penalty, while older, or more feeble, unhealthy killers would be sentenced to life in prison as the cheaper alternative.  The costs argument risks introducing a kind of age and medical status discrimination into the imperfect procedures employed to determine who merits the death penalty for murder.

6. State Authority and Capital Punishment

Exploring fully whether capital punishment is morally justified leads to considering a normative account of the modern state, its foundations, proper functions, and penal powers.  The modern practice of capital punishment presupposes a state which has the authority to make, administer, and enforce criminal law and procedures and then, if merited, impose the death penalty to address serious misconduct.  On what basis does the state possess the authority to punish by death?  This question of justification seems to raise issues about capital punishment that are “more squarely within the province of political philosophy” (Simmons, 311).

Contractarian accounts of the state share the feature that authority is derived from or constructed out of the authority granted to it by individuals that have or would “contract” to create it (see Social Contract Theory ).  Any authority of the state to punish by death is, then, consent-based.  Thus, for example, as with others in the natural rights tradition, John Locke’s contractarian approach grounds state authority in individuals transferring their pre-political right to punish (including by death) those who have violated another’s basic rights by killing.   As Locke maintains in his Second Treatise on Government , the purpose of the state is to protect individuals’ basic rights, and individuals each grant the state the authority to protect rights through laws and punishments that are effective and comply with natural law principles about the amount of punishment (that is, lex talionis ).  Though invoking such a pre-political right of individuals to punish is common in the natural rights tradition, and though there are some recent defenders of such an approach among libertarians (for example, Nozick), Locke himself admits that the notion of a natural executive right to punish “will seem a very strange doctrine to some men” ( Treatis e, sec. 9).

The classic contractarian theories of Jean-Jacques Rousseau and Thomas Hobbes also justify state authority to punish by death on grounds of individuals’ consent.  In the Leviathan , the pre-political state of nature is famously characterized by Hobbes as a life “solitary, poor, nasty, brutish, and short” (89; Ch. 13).  This life in the state of nature is so insecure that each person, as a means to self-preservation, authorizes the created sovereign power—the state—to punish by death criminal misconduct “to the end that the will of men may thereby better be disposed to obedience” (214; Ch. 28).  Rousseau, in On the Social Contract , holds that “the social treaty has as its purpose the conservation of the contracting parties,” each of whom wills the means to end of preserving his life.  “And whoever wishes to preserve his own life at the expense of others should also give it up for them when necessary….  It is in order to avoid being the victim of an assassin that a person consents to die, were he to become one” (35; Book II, Ch. v).  And so, Rousseau maintains, the political society has the right to put to death, even as an example, those who cannot be preserved without danger to others or the society itself.  In the case of all the classic social contract theories of the state, individuals’ consent to the practice of capital punishment is included in the created authority of the state to rule and to punish.

Some more recent contractarian accounts of state authority to punish are explored in the spirit of John Rawls’s A Theory of Justice , with its Kantian conceptions of rationality and basic human goods (for example, liberties, autonomy, dignity).  The general idea is that a system of social cooperation is just if it would be consented to by rational, mutually disinterested individuals making their choice while ignorant of particularities about themselves and their own place in the system.  Such contractarian approaches typically support a penal system which merges both retributivist and utilitarian approaches in establishing a just system of punishment.  Whether such contractarian approaches justify capital punishment depends, as do classic social contract theories, on the details of the conditions under which a rational choice would be made.  A recent proponent of a contractarian theory of punishment, for example, argues that individuals would consent to an institution only if it would leave individuals better off than they would be in its absence.  This “benefit principle,” it is argued, justifies a system of punishment, as each would be better off with punitive sanctions than without.  As to capital punishment, though, “[c]an a person who receives the death penalty… regard himself as better off… than he would have been had he never agreed to the contract in the first place” (Finkelstein, “A Contractarian Approach…,” 216)?  There is a paradoxical air to individuals consenting to a system whereby they may be executed.  Finkelstein argues that, even if the death penalty deters, the benefit principle is not satisfied by a system of punishment that includes the death penalty.  On this contemporary contractarian theory, then, capital punishment is not justified because it would not be agreed to by rational individuals choosing the social institutions under which they would live.

A quite different approach to justifying state authority to punish by death appeals to the idea of societal self-defense or self-protection.  In a short piece, “On Punishment,” John Stuart Mill says, “the only right by which society is warranted in inflicting any pain upon any human creature, is the right of self-defense…. Our right to punish, is a branch of the universal right of self-defence”(79).  One recent development of this approach argues that a societal right of self-protection entails the right to threaten punishment for misconduct, and that a right to impose punishments follows from the society’s right to threaten sanctions (Quinn).  Whether a society has a right to threaten or impose a death penalty for murder, then, is based on its efficacy for deterrence and incapacitation, that is, as a protector of society.  A second, slightly different argument appeals more directly to the model of individual self-defense as a right.  Just as an individual has a right to use deadly force to address imminent, unavoidable aggression against self or other innocent parties, so society, as a collective, has a right to employ deadly force to address violent aggression against innocent third parties within that society.  The amount of punishment that society has the right to employ is constrained as it is for an individual’s moral right of self-defense: the response must be proportionate to the threatened loss.  So, given a moral right of individuals to employ deadly force in defense of their own or other innocents’ lives, by analogy society has such a right to use death as a punishment for murders of innocent third parties in the society.  Whether as an exercise of a right of self-protection or self-defense, the state then has the right to institute capital punishment for serious crimes such as murder.

7. References and Further Reading

A. primary sources.

• References to this extensive work are by number of question and article in the second part of part two (i.e., II-II), available at http://www.gutenberg.org/cache/epub/18755/pg18755.html.
• Quotations and references are by page number and chapter number to this translation and edition.
• References to this classic text are by chapter and section number.
• Camus, Albert. “Reflections on the Guillotine.” Resistance, Rebellion, and Death. Trans. Justin O’Brien. New York: Knopf, 1966. 175-234.
• Hegel, G.W.F. The Philosophy of Right. (1821) Trans. T. M. Knox. Oxford: Clarendon Press, 1962.
• References to this text are by pagination in this edition, followed by chapter number, to allow reliance on various translations and editions available in print or on-line.
• Quotations and parenthetical references are from this translation and edition, followed by the standard AK pagination, to allow reliance on various translations and editions available in print or on-line.
• Quotations are from this recent scholarly edition; all references are to section number of The Second Treatise, to allow reliance on various other editions available on-line or in print.
• Marx, Karl. “Capital Punishment.” New York Tribune. 1853. https://www.marxists.org/archive/marx/works/1853/02/18.htm.
• Mill, John Stuart. ”Speech in Favor of Capital Punishment 1868.” The Collected Works of John Stuart Mill, Vol. XXVIII.: Public and Parliamentary Speeches. Eds. John M. Robson and Bruce Kinzer. Toronto: University of Toronto Press, 1988. pp. 266-273. http://oll.libertyfund.org/titles/mill-the-collected-works-of-john-stuart-mill-volume-xxviii-public-and-parliamentary-speeches-part-i.
• Mill, John Stuart. “On Punishment.” The Collected Works of John Stuart Mill, Vol. XXI: Equality, Law, and Education. Ed. John M. Robson. Toronto: University of Toronto Press, 1984, pp. 77-79. http://oll.libertyfund.org/titles/mill-the-collected-works-of-john-stuart-mill-volume-xxi-essays-on-equality-law-and-education.
• Plato. The Collected Dialogues. Ed. Edith Hamilton and Huntington Cairns. Princeton: Princeton University Press, 1961.
• Ross, W.D. The Right and the Good. Oxford: Oxford University Press, 1930.
• Quotations and references are to this translation and edition, using page number followed by book and chapter number, to allow reliance on various translations and editions available in print or on-line.

b. Secondary Sources

• Bailey, William C. and Ruth D. Peterson. “Murder, Capital Punishment, and Deterrence: A Review of the Literature.” The Death Penalty in America: Current Controversies. Ed. Hugo Adam Bedau. Oxford: Oxford University Press, 1997. 135-161.
• An excellent, thoughtful, and readable rendition of the long history of death penalty law and practice in America, from colonial beginnings through the end of the 20th century.
• Bedau, Hugo Adam. “Bentham’s Utilitarian Critique of the Death Penalty.” Journal of Criminal Law and Criminology 74 (1983): 1033-1065.
• Bedau, Hugo Adam. “Capital Punishment.” Matters of Life and Death: New Introductory Essays in Moral Philosophy. Third edition. Ed. Tom Regan. New York: Random House, 1980. 160-194.
• Despite its publication date, this anthology is still quite useful. It is the best, basic reference for primary and secondary source materials related to American death penalty law, constitutional issues, Supreme Court decisions, public attitudes, social scientific studies of deterrence, and explorations of procedural problems with capital punishment, including matters of race.
• Bedau has long been a prominent philosophic scholar specializing in research and writing about capital punishment in the United States. The first half of this volume is primarily descriptive of the American system, including problematic procedural outcomes and some recent history of the death penalty. The second half of the book “undertakes a critical evaluation…from a constitutional and ethical point of view.” As a matter of applied ethics, Bedau argues for abolition of the death penalty in reasonably just, constitutional democracies, such as the United States.
• Written by a legal scholar, an accessible appeal to problematic outcomes of American criminal procedure as justification for abolishing the death penalty.
• Caplan, Arthur A. “Should Physicians Participate in Capital Punishment?” Mayo Clinic Proceedings 82 (2007): 1047-48. http://www.mayoclinicproceedings.org/article/S0025-6196(11)61363-3/fulltext
• Conway, David A. “Capital Punishment and Deterrence: Some Considerations in Dialogue Form.” Philosophy & Public Affairs 3 (1974): 431-443.
• Davis, Michael. “Harm and Retribution.” Philosophy & Public Affairs 15 (1986): 236-266.
• Duff, R. A. Punishment, Communication, and Community. Oxford: Oxford University Press, 2001.
• Dworkin, Gerald. “Patients and Prisoners: The Ethics of Legal Injection.” Analysis 62 (2002): 181-189.
• Feinberg, Joel. “The Expressive Function of Punishment. Doing and Deserving. Princeton: Princeton University Press, 1970. 95-118.
• Feinberg, Joel. “Noncomparative Justice.” Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy. Princeton: Princeton University Press, 1980. 265-306.
• Finkelstein, Claire. “A Contractarian Approach to Punishment.” The Blackwell Guide to the Philosophy of Law and Legal Theory. Ed. Martin Golding and William Edmundson. Oxford: Blackwell Publishing, 2005. 207-220.
• Finkelstein, Claire. “A Contractarian Argument Against the Death Penalty.” New York University Law Review 81 (2006): 1283-1330.
• Gaie, Joseph B.R. The Ethics of Medical Involvement in Capital Punishment: A Philosophical Discussion. Dordrecht: Kluwer Academic Publishers, 2004.
• Hampton, Jean. “The Moral Education Theory of Punishment.” Philosophy & Public Affairs 13 (1984): 208-238.
• Hart, H.L.A. “Bentham and Beccaria.” Essays on Bentham. Oxford: Clarendon Press, 1982. 40-52.
• This essay remains hugely influential in providing the dominant framework for philosophic theories of punishment, including the death penalty.
• Hart, H.L.A. “Punishment and the Elimination of Responsibility.” Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon Press, 1968. pp. 158-185.
• Heyd, David. “Hobbes on Capital Punishment.” History of Philosophy Quarterly 8 (1991): 119-134.
• Litton, Paul, Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship (June 28, 2013). 41 Journal of Law, Medicine, & Ethics 333 (2013); University of Missouri School of Law Legal Studies Research Paper No. 2013-13.  https://ssrn.com/abstract=2286788.
• Mackenzie, Mary Margaret. Plato on Punishment. Berkeley: University of California Press, 1981.
• McGowen, Randall. “The Death Penalty.” The Oxford Handbook of the History of Crime and Criminal Justice. Edited by Paul Knepper and Anja Johansen. Oxford: Oxford University Press, 2016. 615-634.
• Montague, Phillip. Punishment as Societal Defense. Lanham: Rowman & Littlefield, 1995.
• Morris, Herbert. “Persons and Punishment.” The Monist 52 (1968): 475-501.
• Murphy, Jeffrie. “Marxism and Retribution.” Philosophy & Public Affairs 2 (1973): 217-243.
• An accessible, readable argument to the conclusion “that the death penalty is not morally acceptable.” Nathanson considers a variety of arguments offered in defense of capital punishment in America: deterrence, costs, problematic procedural outcomes, moral desert and the death penalty, American constitutional considerations. An especially helpful treatment of the arguments based on criminal procedure in America.
• Nathanson, Stephen. “Does It Matter if the Death Penalty Is Arbitrarily Administered?” Philosophy & Public Affairs 14 (1985): 149-164. Print.
• Chapter 4 deals with theories of punishment (retributive and deterrence) with respect to a contractarian theory of a libertarian state developed in the spirit of John Locke’s emphasis on individual rights.
• Section III of Chapter 4 (pp. 363-398) deals with punishment as communication, including some ambivalence about its implications for the death penalty for murderous offenders.
• Nussbaum, Martha. “Equity and Mercy.” Philosophy & Public Affairs 22 (1993): 83-125.
• Pojman, Louis. “For the Death Penalty.” The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998. 1-66.
• Distinctly different, opposing, nuanced approaches to the death penalty in the context of more general theories about punishment and illustrating ways in which justifications are often hybrid theories that synthesize elements of retributivism and consequentialism. Both authors also address the import of imperfect criminal procedures in the administration of the death penalty in America (or perhaps anywhere). The text includes a response by each to the other’s arguments.
• Quinn, Warren. “The Right to Threaten and the Right to Punish.” Philosophy & Public Affairs 4 (1985): 327-373.
• Radin, Margaret Jane. “Cruel Punishment and Respect for Person: Super Due Process for Death.” Southern California Law Review 53 (1980): 1143-1185.
• Rawls, John. A Theory of Justice. Revised edition. Cambridge: Harvard University Press, 1971, 1999.
• Reiman, Jeffrey. “Justice, Civilization, and the Death Penalty: Answering van den Haag.” Philosophy & Public Affairs 14 (1985): 115-148.
• Reiman, Jeffrey. “Why the Death Penalty Should be Abolished in America.” The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998. 67-132.
• An excellent survey of the title topic, an aspect of capital punishment not often engaged in the work of others in this list.
• Royal Commission on Capital Punishment 1949-1953.: Report. Cmd.8932. London: Her Majesty’s Stationery Office, 1953.
• Simmons, A. John. “Locke and the Right to Punish.” Philosophy & Public Affairs 20 (1991): 311-349.
• An excellent analysis of the arguments of John Stuart Mill and Immanuel Kant in defense of capital punishment for at least some murders.
• Though the primary aim of this book is to show how philosophic arguments and theories “can be useful in producing an improved moral rhetoric,” Sorell does offer a non-consequentialist and retributivist defense of capital punishment on the ground that murderers deserve to die. He opposes alternative forms of retributivism (e.g., appeals to fairness) and argues that utilitarian or consequentialist arguments are inconclusive, including J.S. Mill’s little-known defense of capital punishment.
• Stalley, R.F. An Introduction to Plato’s Laws. Indianapolis: Hackett, 1983.
• A clear, organized introduction to an array of recent theories of punishment, though not specifically addressed to issues of capital punishment. Chapter 7, “The Amount of Punishment,” engages retributivist and utilitarian approaches to justifying the form or kind of punishment for offenders.
• United Nations. “The Universal Declaration of Human Rights.” (1948). http://www.un.org/en/universal-declaration-human-rights/.
• United Nations. “International Covenant on Civil and Political Rights.” (1976). http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
• United States. House of Representatives. The Constitution of the United States of America. Washington: Government Printing Office, 2000. https://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf.
• Waisel, David. “Physician Participation in Capital Punishment.” Mayo Clinic Proceedings 82 (2007): 1073-1080. http://www.mayoclinicproceedings.org/article/S0025-6196(11)61369-4/fulltext.

Author Information

Robert Hoag Email: [email protected] Berea College U.S.A.

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• Most Americans Favor the Death Penalty Despite Concerns About Its Administration

78% say there is some risk of innocent people being put to death

Table of contents.

• Acknowledgments
• Methodology

Pew Research Center conducted this study to better understand Americans’ views about the death penalty. For this analysis, we surveyed 5,109 U.S. adults from April 5 to 11, 2021. Everyone who took part in this survey is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about the ATP’s methodology .

Here are the questions used for the report, along with responses, and its methodology .

The use of the death penalty is gradually disappearing in the United States. Last year, in part because of the coronavirus outbreak, fewer people were executed than in any year in nearly three decades .

Yet the death penalty for people convicted of murder continues to draw support from a majority of Americans despite widespread doubts about its administration, fairness and whether it deters serious crimes.

More Americans favor than oppose the death penalty: 60% of U.S. adults favor the death penalty for people convicted of murder, including 27% who strongly favor it. About four-in-ten (39%) oppose the death penalty, with 15% strongly opposed, according to a new Pew Research Center survey.

The survey, conducted April 5-11 among 5,109 U.S. adults on the Center’s American Trends Panel, finds that support for the death penalty is 5 percentage points lower than it was in August 2020, when 65% said they favored the death penalty for people convicted of murder.

While public support for the death penalty has changed only modestly in recent years, support for the death penalty declined substantially between the late 1990s and the 2010s. (See “Death penalty draws more Americans’ support online than in telephone surveys” for more on long-term measures and the challenge of comparing views across different survey modes.)

Large shares of Americans express concerns over how the death penalty is administered and are skeptical about whether it deters people from committing serious crimes.

Nearly eight-in-ten (78%) say there is some risk that an innocent person will be put to death, while only 21% think there are adequate safeguards in place to prevent that from happening. Only 30% of death penalty supporters – and just 6% of opponents – say adequate safeguards exist to prevent innocent people from being executed.

A majority of Americans (56%) say Black people are more likely than White people to be sentenced to the death penalty for being convicted of serious crimes. This view is particularly widespread among Black adults: 85% of Black adults say Black people are more likely than Whites to receive the death penalty for being convicted of similar crimes (61% of Hispanic adults and 49% of White adults say this).

Moreover, more than six-in-ten Americans (63%), including about half of death penalty supporters (48%), say the death penalty does not deter people from committing serious crimes.

Yet support for the death penalty is strongly associated with a belief that when someone commits murder, the death penalty is morally justified. Among the public overall, 64% say the death penalty is morally justified in cases of murder, while 33% say it is not justified. An overwhelming share of death penalty supporters (90%) say it is morally justified under such circumstances, compared with 25% of death penalty opponents.

The data in the most recent survey, collected from Pew Research Center’s online American Trends Panel (ATP) , finds that 60% of Americans favor the death penalty for persons convicted of murder. Over four ATP surveys conducted since September 2019, there have been relatively modest shifts in these views – from a low of 60% seen in the most recent survey to a high of 65% seen in September 2019 and August 2020.

In Pew Research Center phone surveys conducted between September 2019 and August 2020 (with field periods nearly identical to the online surveys), support for the death penalty was significantly lower: 55% favored the death penalty in September 2019, 53% in January 2020 and 52% in August 2020. The consistency of this difference points to substantial mode effects on this question. As a result, survey results from recent online surveys are not directly comparable with past years’ telephone survey trends. A post accompanying this report provides further detail and analysis of the mode differences seen on this question. And for more on mode effects and the transition from telephone surveys to online panel surveys, see “What our transition to online polling means for decades of phone survey trends” and “Trends are a cornerstone of public opinion research. How do we continue to track changes in public opinion when there’s a shift in survey mode?”

Partisanship continues to be a major factor in support for the death penalty and opinions about its administration. Just over three-quarters of Republicans and independents who lean toward the Republican Party (77%) say they favor the death penalty for persons convicted of murder, including 40% who strongly favor it.

Democrats and Democratic leaners are more divided on this issue: 46% favor the death penalty, while 53% are opposed. About a quarter of Democrats (23%) strongly oppose the death penalty, compared with 17% who strongly favor it.

Over the past two years, the share of Republicans who say they favor the death penalty for persons convicted of murder has decreased slightly – by 7 percentage points – while the share of Democrats who say this is essentially unchanged (46% today vs. 49% in 2019).

Republicans and Democrats also differ over whether the death penalty is morally justified, whether it acts as a deterrent to serious crime and whether adequate safeguards exist to ensure that no innocent person is put to death. Republicans are 29 percentage points more likely than Democrats to say the death penalty is morally justified, 28 points more likely to say it deters serious crimes, and 19 points more likely to say that adequate safeguards exist.

But the widest partisan divide – wider than differences in opinions about the death penalty itself – is over whether White people and Black people are equally likely to be sentenced to the death penalty for committing similar crimes.

About seven-in-ten Republicans (72%) say that White people and Black people are equally likely to be sentenced to death for the same types of crimes. Only 15% of Democrats say this. More than eight-in-ten Democrats (83%) instead say that Black people are more likely than White people to be sentenced to the death penalty for committing similar crimes.

Differing views of death penalty by race and ethnicity, education, ideology

There are wide ideological differences within both parties on this issue. Among Democrats, a 55% majority of conservatives and moderates favor the death penalty, a position held by just 36% of liberal Democrats (64% of liberal Democrats oppose the death penalty). A third of liberal Democrats strongly oppose the death penalty, compared with just 14% of conservatives and moderates.

While conservative Republicans are more likely to express support for the death penalty than moderate and liberal Republicans, clear majorities of both groups favor the death penalty (82% of conservative Republicans and 68% of moderate and liberal Republicans).

As in the past, support for the death penalty differs across racial and ethnic groups. Majorities of White (63%), Asian (63%) and Hispanic adults (56%) favor the death penalty for persons convicted of murder. Black adults are evenly divided: 49% favor the death penalty, while an identical share oppose it.

Support for the death penalty also varies across age groups. About half of those ages 18 to 29 (51%) favor the death penalty, compared with about six-in-ten adults ages 30 to 49 (58%) and those 65 and older (60%). Adults ages 50 to 64 are most supportive of the death penalty, with 69% in favor.

There are differences in attitudes by education, as well. Nearly seven-in-ten adults (68%) who have not attended college favor the death penalty, as do 63% of those who have some college experience but no degree.

About half of those with four-year undergraduate degrees but no postgraduate experience (49%) support the death penalty. Among those with postgraduate degrees, a larger share say they oppose (55%) than favor (44%) the death penalty.

The divide in support for the death penalty between those with and without college degrees is seen across racial and ethnic groups, though the size of this gap varies. A large majority of White adults without college degrees (72%) favor the death penalty, compared with about half (47%) of White adults who have degrees. Among Black adults, 53% of those without college degrees favor the death penalty, compared with 34% of those with college degrees. And while a majority of Hispanic adults without college degrees (58%) say they favor the death penalty, a smaller share (47%) of those with college degrees say this.

Intraparty differences in support for the death penalty

Republicans are consistently more likely than Democrats to favor the death penalty, though there are divisions within each party by age as well as by race and ethnicity.

Republicans ages 18 to 34 are less likely than other Republicans to say they favor the death penalty. Just over six-in-ten Republicans in this age group (64%) say this, compared with about eight-in-ten Republicans ages 35 and older.

Among Democrats, adults ages 50 to 64 are much more likely than adults in other age groups to favor the death penalty. A 58% majority of 50- to 64-year-old Democrats favor the death penalty, compared with 47% of those ages 35 to 49 and about four-in-ten Democrats who are 18 to 34 or 65 and older.

Overall, White adults are more likely to favor the death penalty than Black or Hispanic adults, while White and Asian American adults are equally likely to favor the death penalty. However, White Democrats are less likely to favor the death penalty than Black, Hispanic or Asian Democrats. About half of Hispanic (53%), Asian (53%) and Black (48%) Democrats favor the death penalty, compared with 42% of White Democrats.

About eight-in-ten White Republicans favor the death penalty, as do about seven-in-ten Hispanic Republicans (69%).

Differences by race and ethnicity, education over whether there are racial disparities in death penalty sentencing

There are substantial demographic differences in views of whether death sentencing is applied fairly across racial groups. While 85% of Black adults say Black people are more likely than White people to be sentenced to death for committing similar crimes, a narrower majority of Hispanic adults (61%) and about half of White adults (49%) say the same. People with four-year college degrees (68%) also are more likely than those who have not completed college (50%) to say that Black people and White people are treated differently when it comes to the death penalty.

About eight-in-ten Democrats (83%), including fully 94% of liberal Democrats and three-quarters of conservative and moderate Democrats, say Black people are more likely than White people to be sentenced to death for committing the same type of crime – a view shared by just 25% of Republicans (18% of conservative Republicans and 38% of moderate and liberal Republicans).

Across educational and racial or ethnic groups, majorities say that the death penalty does not deter serious crimes, although there are differences in how widely this view is held. About seven-in-ten (69%) of those with college degrees say this, as do about six-in-ten (59%) of those without college degrees. About seven-in-ten Black adults (72%) and narrower majorities of White (62%) and Hispanic (63%) adults say the same. Asian American adults are more divided, with half saying the death penalty deters serious crimes and a similar share (49%) saying it does not.

Among Republicans, a narrow majority of conservative Republicans (56%) say the death penalty does deter serious crimes, while a similar share of moderate and liberal Republicans (57%) say it does not.

A large majority of liberal Democrats (82%) and a smaller, though still substantial, majority of conservative and moderate Democrats (70%) say the death penalty does not deter serious crimes. But Democrats are divided over whether the death penalty is morally justified. A majority of conservative and moderate Democrats (57%) say that a death sentence is morally justified when someone commits a crime like murder, compared with fewer than half of liberal Democrats (44%).

There is widespread agreement on one topic related to the death penalty: Nearly eight-in-ten (78%) say that there is some risk an innocent person will be put to death, including large majorities among various racial or ethnic, educational, and even ideological groups. For example, about two-thirds of conservative Republicans (65%) say this – compared with 34% who say there are adequate safeguards to ensure that no innocent person will be executed – despite conservative Republicans expressing quite favorable attitudes toward the death penalty on other questions.

Overwhelming share of death penalty supporters say it is morally justified

Those who favor the death penalty consistently express more favorable attitudes regarding specific aspects of the death penalty than those who oppose it.

For instance, nine-in-ten of those who favor the death penalty also say that the death penalty is morally justified when someone commits a crime like murder. Just 25% of those who oppose the death penalty say it is morally justified.

This relationship holds among members of each party. Among Republicans and Republican leaners who favor the death penalty, 94% say it is morally justified; 86% of Democrats and Democratic leaners who favor the death penalty also say this.

By comparison, just 35% of Republicans and 21% of Democrats who oppose the death penalty say it is morally justified.

Similarly, those who favor the death penalty are more likely to say it deters people from committing serious crimes. Half of those who favor the death penalty say this, compared with 13% of those who oppose it. And even though large majorities of both groups say there is some risk an innocent person will be put to death, members of the public who favor the death penalty are 24 percentage points more likely to say that there are adequate safeguards to prevent this than Americans who oppose the death penalty.

On the question of whether Black people and White people are equally likely to be sentenced to death for committing similar crimes, partisanship is more strongly associated with these views than one’s overall support for the death penalty: Republicans who oppose the death penalty are more likely than Democrats who favor it to say White people and Black people are equally likely to be sentenced to death.

Among Republicans who favor the death penalty, 78% say that Black and White people are equally likely to receive this sentence. Among Republicans who oppose the death penalty, about half (53%) say this. However, just 26% of Democrats who favor the death penalty say that Black and White people are equally likely to receive this sentence, and only 6% of Democrats who oppose the death penalty say this.

CORRECTION (July 13, 2021): The following sentence was updated to reflect the correct timespan: “Last year, in part because of the coronavirus outbreak, fewer people were executed than in any year in nearly three decades.” The changes did not affect the report’s substantive findings.

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State Studies on Monetary Costs

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Ohio AG Capital Crimes Annual Report (2022) cites the Ohio Legislative Service Commission’s statement that” “A mix of quantitative and qualitative studies of other states have found that the cost of a case in which a death penalty has been sought and imposed is higher, perhaps significantly so, than a murder case in which life imprisonment has been imposed.” These studies generally support the conclusion that the total amount expended in a capital case is between two and a half and five times as much as a noncapital case. The AG Report concludes that if these estimates apply to Ohio, then the extra cost of imposing the death penalty on the 128 inmates currently on death row might range between $128 million to $384 million.

A 2017 independent study—An Analysis of the Economic Costs of Capital Punishment in Oklahoma—estimated that an Oklahoma capital case cost $110,000 more on average than a non-capital case. 1

The study , prepared for the Oklahoma Death Penalty Review Commission researched the costs of seeking and imposing the death penalty in Oklahoma, and found that seeking the death penalty in Oklahoma “incurs significantly more time, effort, and costs on average, as compared to when the death penalty is not sought in first degree murder cases.” The study determined that Oklahoma capital cases cost 3.2 times more than non-capital cases on average. Reviewing 15 state studies of death-penalty costs conducted between 2000 and 2016, the study found that, across the country, seeking the death penalty imposes an average of approximately $700,000 more in costs than not seeking death. The researchers wrote that “all of these studies have found … that seeking and imposing the death penalty is more expensive than not seeking it.” The Oklahoma study also reviewed 184 first-degree murder cases from Oklahoma and Tulsa counties in the years 2004-2010 and analyzed costs incurred at the pre-trial, trial, sentencing, and post-sentencing (appeals and incarceration) stages. Oklahoma capital appeal proceedings cost between five-and-six times more than non-capital appeals of first-degree murder convictions. The researchers said their results were “consistent with all previous research on death-penalty costs, which have found that in comparing similar cases, seeking and imposing the death penalty is more expensive than not seeking it.” They concluded: “It is a simple fact that seeking the death penalty is more expensive. There is not one credible study, to our knowledge, that presents evidence to the contrary.”

A 2017 Fiscal Impact Report prepared by the Legislative Finance Committee of the New Mexico legislature estimated that bringing back the death penalty for three types of homicides in the state would cost as much as $7.2 million over the first three years. 2

The report notes that “[b]etween 1979 and 2007 when the death penalty was an option to prosecutors, there were over 200 death penalty cases filed, but only 15 men sentenced to death and only one execution.” The Law Offices of the Public Defender reports that the defense costs for the two New Mexico death-penalty cases that remain in the system following the prospective repeal of the state’s death-penalty statute have been $607, 400 for one case and $1.3 million for the other. The Fiscal Impact Report also contains a survey of costs incurred by a number of other states in administering their death-penalty statutes.

A 2016 study by Lewis & Clark Law School and Seattle University found that 61 death sentences handed down in Oregon cost taxpayers an average of $2.3 million, including incarceration costs, while 313 aggravated murder cases cost an average of $1.4 million. 3

The study , which examined the costs of hundreds of murder and aggravated murder cases in Oregon, concluded that “maintaining the death penalty incurs a significant financial burden on Oregon taxpayers.” The researchers found that the average trial and incarceration costs of an Oregon murder case that results in a death sentence are almost double those in a murder case that results in a sentence of life imprisonment or a term of years. Excluding state prison costs, the study found, cases that result in death sentences may be three-to-four times more expensive. Excluding state prison costs, the difference was even more stark: $1.1 million for death sentences vs. $315,159 for other non-capital cases. The study also found that death-penalty case costs have escalated over time, from $274,209 in the 1980s to $1,783,148 in the 2000s. The study examined cost data from local jails, the Oregon Department of Corrections, the Office of Public Defense Services, and the Department of Justice, each of which provided information on appeals costs. Prosecution costs were not included because the District Attorney’s Office budgets were not broken down by time spent on each case. Among the reasons cited for the higher cost in death-penalty cases were the requirement for appointment of death-qualified defense lawyers, more pre- and post-trial filings by both prosecutors and the defense, lengthier and more complicated jury-selection practices, the two-phase trial, and more extensive appeals once a death sentence had been imposed. Professor Aliza Kaplan, one of the authors of the study, said, “The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon.” Oregon has carried out only two executions since the death penalty was reinstated, both of prisoners who waived their appeals. The state currently has a moratorium on executions.

A 2016 study of the costs of Nebraska’s death penalty by Dr. Ernest Goss, a Creighton University economics professor who founded the conservative think tank, Goss & Associates, found that the state spends $14.6 million per year to maintain its capital punishment system. 4

The study “ The Economic Impact of the Death Penalty on the State of Nebraska: A Taxpayer Burden?” estimated that each death-penalty prosecution cost Nebraska’s taxpayers about $1.5 million more than a life-without-parole prosecution. Conducting a meta-analysis of cost studies conducted across the country, Dr. Goss estimated that the death penalty costs states with capital punishment an average of $23.2 million more per year than those with alternative sentencing. The study found that states with the death penalty spend about 3.54% of their overall state budgets on courts, corrections, and other criminal-justice functions associated with the death penalty, while states without the death penalty spend about 2.93% on those functions. 1,842 homicides were committed in Nebraska between 1973 and 2014, with prosecutors seeking death 119 times and obtaining 33 death sentences. Of those sentenced to death, the study found that 13 had their sentences reduced, six died in prison, three were executed, one sentence was vacated, and ten are still appealing their sentences. The study was commissioned by Retain a Just Nebraska, an organization advocating for Nebraskans to vote to retain the Nebraska legislature repeal of the state’s death penalty in the November 2016 election.

Pennsylvania

In a 2016 article, The Reading Eagle used data from a 2008 study by the Urban Institute to show that Pennsylvania has spent an estimated $272 million per execution since the Commonwealth reinstated its death penalty in 1978. 5

According to the article , the Eagle calculated that cost of sentencing 408 people to death was an estimated $816 million higher than the cost of life without parole. The estimate is conservative, the paper says, because it assumes only one capital trial for each defendant and it does not include the cost of cases in which the death penalty was sought but not imposed. An earlier investigation had estimated a cost of at least $350 million, based on the 185 prisoners who were on death row as of 2014, but additional research into the cases that had already been overturned, or in which prisoners died or were executed prior to 2014, revealed a total of 408 people who had been sentenced to death.

Two 2015 state analyses of the costs of the death penalty in Indiana found that “the out-of-pocket expenditures associated with death-penalty cases were significantly more expensive than cases for which prosecuting attorneys requested either life without parole or a term of years.”

The first analysis —prepared by the Legislative Services Agency for the General Assembly on April 13, 2015, as a cost assessment for a bill that would make more cases eligible for the death penalty—found that the average cost of a capital-murder case tried before a jury was $789,581, more than 4.25 times greater than the average cost of a murder case tried to a jury in which the prosecution sought life without parole ($185,422). The analysis also found that a death-penalty case resolved by guilty plea still cost more than 2.33 times as much ($433,702) as a life-without-parole case tried to a jury.

A second analysis —prepared on May 4, 2015, in connection with a bill to add another aggravating circumstance to the state’s death-penalty statute—found that the state share of out-of-pocket expenditures for death-penalty cases tried to a jury ($420,234) was 2.77 times greater than its share of expenditures in life-without-parole case tried to a jury ($151,890). It also found that death-penalty cases tried to a jury costs counties an average of $369,347 in out-of-pocket expenditures, 11 times more than the average county expenditure for a life-without-parole case tried to a jury ($33,532). The assessment found that death-penalty cases resolved by a plea agreement are still significantly more expensive than non-capital cases that go to trial. The $148,513 average expenditure counties paid for capital cases that were resolved by plea was 4.43 times more than their average expenditure for a life-without-parole case tried to a jury.

A 2015 Seattle University study examining the costs of the death penalty in Washington found that each death penalty case cost an average of $1 million more than a similar case where the death penalty was not sought. 6

The study found defense costs were about three times as high in death-penalty cases and prosecution costs were as much as four times higher than for non-death penalty cases. Criminal Justice Professor Peter Collins, the lead author of the study, said, “What this provides is evidence of the costs of death-penalty cases, empirical evidence. We went into it [the study] wanting to remain objective. This is purely about the economics; whether or not it’s worth the investment is up to the public, the voters of Washington and the people we elected.” (Although Washington’s death penalty was reinstated in 1981, the study examined cases from 1997 onwards. Using only cases in the study, the gross bill to taxpayers for the death penalty will be about $120 million. Washington has carried out five executions since reinstatement, implying a cost of $24 million per execution. In three of those five cases, the inmate waived parts of his appeals, thus reducing costs.) The study was not able to include the likely higher yearly incarceration costs for death row inmates versus those not on death row.

In 2014, the Nevada Legislative Auditor estimated the cost of a murder trial in which the death penalty was sought cost $1.03 to $1.3 million, whereas cases without the death penalty cost $775,000. 7

The study , commissioned by the Nevada legislature, found that the average death penalty case costs a half million dollars more than a case in which the death penalty is not sought. The auditor summarized the study’s findings, saying, “Adjudicating death-penalty cases takes more time and resources compared to murder cases where the death-penalty sentence is not pursued as an option. These cases are more costly because there are procedural safeguards in place to ensure the sentence is just and free from error.” The study noted that the extra costs of a death-penalty trial were still incurred even in cases where a jury chose a lesser sentence, with those cases costing $1.2 million. The study was based on a sample of Nevada murder cases and include the costs of incarceration. Because certain court and prosecution costs could not be obtained, the authors said the costs were, “understated,” and may be higher than the estimates given.

A 2014 Kansas Judicial Council study examining 34 potential death-penalty cases from 2004-2011 found that defense costs for death penalty trials averaged $395,762 per case, compared to $98,963 per case when the death penalty was not sought. 8

According to the study , defending a death-penalty case costs about four times as much as defending a case where the death-penalty is not sought. Costs incurred by the trial court showed a similar disparity: $72,530 for cases with the death penalty; $21,554 for those without. Even in cases that ended in a guilty plea and did not go to trial, cases where the death penalty was sought incurred about twice the costs for both defense ($130,595 v. $64,711) and courts ($16,263 v. $7,384), compared to cases where death was not sought. The time spent on death cases was also much higher. Jury trials averaged 40.13 days in cases where the death penalty was being sought, but only 16.79 days when it was not an option. Justices of the Kansas Supreme Court assigned to write opinions estimated they spent 20 times more hours on death-penalty appeals than on non-death appeals. The Department of Corrections said housing prisoners on death row cost more than twice as much per year ($49,380) as for prisoners in the general population ($24,690).

A 2012 study, conducted by Dr. Terance Miethe of the Department of Criminal Justice at the University of Nevada, Las Vegas concluded that the 80 pending capital murder cases in Clark County, Nevada would cost approximately $15 million more than if they were prosecuted without seeking the death penalty. 9

The study showed defense of the average capital murder case in Clark County cost $229,800 for a Public Defender or $287,250 for appointed counsel. The additional cost of capital murder cases was $170,000 to $212,000 per case compared to the cost of a non-capital murder case in the same county. The study did not include the costs of prosecution or all appellate expenses. The author noted: “It is important to note that this statistical extrapolation does not cover the full array of time spent in capital cases by other court officials (e.g. judges, prosecutors, jurors), staff and administrative personnel, mitigation specialists, investigators, and expert witnesses. It also does not take into account the additional costs of capital litigation that are associated with state/federal appeals and the extra costs of imprisonment of death-eligible inmates pending trial and sentencing.

The study’s findings include:

• Clark County public defense attorneys spent an average of 2,298 hours on a capital murder case compared to an average of 1,087 hours on a non-capital murder case—a difference of 1,211 hours, or 112%.
• Defending the average capital murder case in Clark County cost $229,800 for a Public Defender or $287,250 for appointed counsel. The additional cost of capital murder cases was $170,000 to $212,000 per case compared to the cost of a non-capital murder case in the same county.
• The 80 pending capital murder cases in Clark County will cost approximately $15 million more than if they were prosecuted without seeking the death penalty.
• Clark County cases that resulted in a death sentence that concluded between 2009 and 2011 took an average of 1,107 days, or just over 3 years, to go from initial filing to sentencing. In contrast, cases that resulted in life without parole took an average of 887 days (2.4 years) to go from initial filing to sentencing.
• Of the 35 completed cases in Clark County from 2009 to 2011 where a Notice of Intent to seek the death penalty was filed, 69% resulted in a life sentence. Nearly half (49%) ultimately resulted in a sentence of life without parole, and the next most common disposition was a sentence of life with parole (20%). Only 5 of the 35 cases (14%) resulted in a death sentence.

A 2011 assessment of costs by Judge Arthur Alarcon and Prof. Paula Mitchell, updated in 2012 revealed that, since 1978, California’s current system has cost the state’s taxpayers $4 billion more than a system that has life in prison without the possibility of parole (‘LWOP’) as its most severe penalty.

According to the assessment , the death penalty cost California $1.94 billion in additional pre-trial and trial costs from 1978-2011. The post-trial costs were almost as high- $925 million for automatic appeals and state habeas corpus petitions, and $775 million for federal habeas corpus appeals. Incarceration of death row inmates was also a significant factor, the “adjustment center” of California’s death row at San Quentin State Penitentiary cost an additional $1 billion. The authors calculated that, if the Governor commuted the sentences of those remaining on death row to life without parole, it would result in an immediate savings of $170 million per year, with a savings of $5 billion over the next 20 years.

See DPIC’s Summary of the 2011 California Cost Study .

Federal Death Penalty

A 2010 report to the Committee on Defender Services Judicial Conference of the United States

The average cost of defending a trial in a federal death case is $620,932, about 8 times that of a federal murder case in which the death penalty is not sought. A study found that those defendants whose representation was the least expensive, and thus who received the least amount of attorney and expert time, had an increased probability of receiving a death sentence.

A 2010 state analysis of the costs of the death penalty in Indiana

The average cost to a county for a trial and direct appeal in a capital case was more than ten times more than a life-without-parole case. The total cost of Indiana’s death penalty is 38% greater than the total cost of life without parole sentences.

North Carolina

A 2009 study published by a Duke University economist revealed North Carolina could save $11 million annually if it dropped the death penalty. 10

The study , by Philip J. Cook, a professor at the Duke University Sanford School of Public Policy, calculated the extra state costs of the death penalty during fiscal years 2005 and 2006. He calculated over $21 million worth of expenses that would have been saved if the death penalty had been repealed. The total included extra defense costs for capital cases in the trial phase, extra payments to jurors, post-conviction costs, resentencing hearings, and the extra costs to the prison system. This conservative estimate did not include resources that would have been freed up in the Office of the Appellate Defender and the North Carolina Supreme Court, the extra time spent by prosecutors in capital cases, and the costs to taxpayers for federal appeals. Cook concluded that costs are not the only concern, but relevant to the discussion of whether the death penalty should be retained, “It’s not an ideal use of resources to have so much time devoted to such a small number of cases if your goal is to reduce crime rates.”

A 2008 study released by the Urban Institute forecast that the lifetime cost to taxpayers for the five capitally-prosecuted cases in Maryland since 1978 will be $186 million. 11

The study estimates that the average cost to Maryland taxpayers for reaching a single death sentence is $3 million - $1.9 million more than the cost of a non-death penalty case. (This includes investigation, trial, appeals, and incarceration costs.) The study examined 162 capital cases that were prosecuted between 1978 and 1999 and found that those cases will cost $186 million more than what those cases would have cost had the death penalty not existed as a punishment. At every phase of a case, according to the study, capital murder cases cost more than non-capital murder cases.Of the 162 capital cases, there were 106 cases in which a death sentence was sought but not handed down in Maryland. Those cases cost the state an additional $71 million compared to the cost non-death penalty cases. Those costs were incurred simply to seek the death penalty where the ultimate outcome was a life or long-term prison sentence.

A 2008 report of the California Commission on the Fair Administration of Justice

“The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.”

A 2006 report to Washington State Bar Association

At the trial level, death-penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel.

A 2005 article from The Los Angeles Times

According to state and federal records, maintaining the California death-penalty system costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life.

A 2004 article from The New York Times

California spends $90 Million dollars annually above the ordinary costs of the justice system on capital cases. $78 million of that total is incurred at the trial level.

A 2004 Report from the Tennessee Comptroller of the Treasury Office of Research

A report released by the Tennessee Comptroller of the Treasury found that death-penalty trials cost an average of 48% more than the average cost of trials in which prosecutors seek life imprisonment.

County-Wide

A 2001 Report from the National Bureau of Economic Research

Capital cases burden county budgets with large unexpected costs, according to a report released by the National Bureau of Economic Research, “The Budgetary Repercussions of Capital Convictions,” by Katherine Baicker. Counties manage these high costs by decreasing funding for highways and police and by increasing taxes. The report estimates that between 1982-1997 the extra cost of capital trials was $1.6 billion.

A 2000 article by The Palm Beach Post

Florida would save $51 million each year by punishing all first-degree murderers with life in prison without parole, according to estimates by the Palm Beach Post. Based on the 44 executions Florida has carried out since 1976, that amounts to an approximate cost of $24 million for each execution.

[ 1 ] P. Collins, M. Hickman, and R. Boruchowitz, ​ “ An Analysis of the Economic Costs of Capital Punishment in Oklahoma ,” April 2017 , Appendix 1 B to The Report of the Oklahoma Death Penalty Review Commission , April 25 , 2017 ; S. Vincent, ​ “ Costly death penal­ty cas­es strain state resources, report says ,” Tulsa World, Apr. 29 ,  2017 .

[ 2 ] Legislative Finance Committee, ​ “ Fiscal Impact Report, HB 72 ,” February 2 ,  2017 .

[ 3 ] A. Kaplan, P. Collins, and V. Mayhew, ​ “ Oregon’s Death Penalty: A Cost Analysis ,” November 16 , 2016 ; T. Hernandez, ​ “ How much does the Oregon death penal­ty cost? New study exam­ines 100 s of cas­es ,” The Oregonian, November 16 , 2016 ; Press Release, ​ “ New Report Calculates Oregon’s Death Penalty Financial Costs ,” Lewis &  Clark Law School and Seattle University, November 16 ,  2016 .

[ 4 ] E. Goss, et. al, ​ “ The Economic Impact of the Death Penalty on the State of Nebraska: A Taxpayer Burden? ,” Goss &  Associates Economic Solutions, August 15 ,  2016 .

[ 5 ] N. Brambila, ​ “ Executing Justice: Pennsylvania’s death penal­ty sys­tem costs $ 816 mil­lion ,” The Reading Eagle, June 17 , 2016 ; N. Brambila, ​ “ Executing Justice: The dis­cre­tionary nature of the death penal­ty in Pennsylvania ,” The Reading Eagle, June 20 ,  2016 .

[ 6 ] J. Sullivan, ​ “ Seeking death penal­ty adds $ 1 M to pros­e­cu­tion cost, study says ,” Seattle Times, January 7 , 2015 ; P. Collins, et al., ​ “ An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State ,” Seattle University, January 1 ,  2015 .

[ 7 ] C. Lochhead, ​ “ Audit: Death penal­ty near­ly dou­bles cost of Nevada mur­der cas­es ,” Las Vegas Review-Journal, December 2 , 2014 ; Legislative Auditor, ​ “ Performance Audit: Fiscal Costs of the Death Penalty ,” November 17 ,  2014 .

[ 8 ] ​ “ Report of the Judicial Council Death Penalty Advisory Committee ,” Judicial Council, Kansas Legislature, Feb. 13 ,  2014 .

[ 9 ] T. Miethe, ​ “ Estimates of Time Spent in Capital and Non-Capital Murder Cases: A Statistical Analysis of Survey Data from Clark County Defense Attorneys ,” Department of Criminal Justice, University of Nevada, Las Vegas, February 21 ,  2012 .

[ 10 ] P. Cook, ​ “ Potential Savings from Abolition of the Death Penalty in North Carolina,” American Law and Economics Review, advance access, December 11 ,  2009 .

[ 11 ] J. McMenamin, ​ “ Death penal­ty costs Md. more than life term,” Baltimore Sun, March 6 ,  2008 .

Legal Dictionary

The Law Dictionary for Everyone

Capital Punishment

The term “capital punishment” refers to the death penalty, which is the punishment for a crime by death. For example, capital punishment methods can include lethal injection, the electric chair or hanging. There is a great deal of controversy surrounding the issue of putting people to death, such that each state has different laws regarding this ultimate penalty. To explore this concept, consider the following capital punishment definition.

Definition of Capital Punishment

• The death penalty, or the punishment for a crime by way of death.

What is Capital Punishment Meaning?

Capital punishment is a form of punishment for the committing of a crime. Specifically, capital punishment refers to the death penalty, or the sentencing of an individual to death for a capital crime. While the prisoner is still in prison but awaiting execution, he is on “death row.”

Some people spend years on death row before the state puts them to death. Many individuals oppose capital punishment for several reasons, including the right to life and the possibility that states may be executing innocent people.

Public Perception of the Death Penalty

In November of 2010, the Death Penalty Information Center released the results of a study conducted to gain true insight into the public perception of the death penalty. The study included a poll conducted by Lake Research Partners wherein they polled 1,500 individuals, who reported a growing support for alternative methods of punishment. In other words, the public perception of the death penalty seems to be shifting from being in favor of the death penalty to opting for another type of punishment instead.

In order of most favorable to least favorable, most individuals polled said they would prefer such alternatives to the death penalty as:

• Life in jail with no possibility of parole , but with restitution paid to the victim’s family
• Life in jail with no possibility of parole
• Life in jail with the possibility of parole

What is perhaps most interesting in the public perception of the death penalty is the opinion of the country’s police chiefs, who believe the death penalty is the least effective with respect to deterring crime. Criminologists agree that this harsh penalty does nothing to dissuade someone from committing murder .

History of Capital Punishment

The history of capital punishment goes back a very long time – to the very beginning of life as we know it. In fact, those who have researched the history of capital punishment have found that until prison systems were instituted around the 19th century, there existed no alternative as a punishment for a crime.

The authorities had no way to ensure they could keep criminals locked away from society, and they did not know of any other way to deter them from committing a similar crime in the future. So, the only viable solution, they decided, was to kill the criminal.

The history of capital punishment involves some brutal methods involving everything from drawing and quartering, to burning people at the stake, or boiling them alive. There was also flaying, impalement, and, of course, hanging. Today, prisons still rely on lethal injection, the firing squad, and the electric chair. Most historical records show that capital punishment has been a cornerstone in the development of the justice system in nearly every society.

Capital Punishment Examples

Many examples of capital punishment come out of the state of Texas. This is because Texas is the first state to actually carry out the death penalty. Texas was also the first state to carry out lethal injections specifically, when it put Charles Brooks, Jr. to death in 1982.

The first recorded execution in the state of Texas occurred in 1819, when the state executed George Brown for the crime of piracy. One of the earlier capital punishment examples to come out of Texas was of convicted murderer Nathan Lee, the last man to be hanged in the state since 1923.

There are also several capital punishment examples in Texas wherein people believed that the person executed was innocent. Take, for example, Cameron Todd Willingham, whom Texas put to death in February of 2004 for the murder of his three daughters by arson . The Texas Forensic Science Commission hired Dr. Craig Beyler to review the case, and he found that arson was not a guarantee in this situation.

Capital Crime

There are several crimes that qualify as a “capital crime,” and they tend to vary by country, and sometimes even by state. For instance, murder is almost always a capital crime, no matter where you go. What this means is that if a person kills someone, he risks the death penalty as a possible punishment.

Crimes against humanity , like genocide, also typically qualify as capital crimes. In some countries, crimes such as treason , espionage, and attempting to overthrow the government are all capital crimes. Other countries consider something as harmless as witchcraft or a minor drinking alcohol (not even being drunk, but simply drinking it) to be a capital crime.

Debate over Capital Punishment

As one might expect, there exists considerable debate over capital punishment. Some people do not believe in “an eye for an eye,” and instead believe that prisons should focus on rehabilitating inmates so they can be productive members of society when they eventually get out of prison. Another argument in the debate over capital punishment is that, in some cases, individuals who may be innocent might receive the death penalty, leading to a miscarriage of justice.

Still another argument in the debate over capital punishment is that some believe there is a racial, ethnic, or class bias , and that members of one race, for instance, receive the death penalty more than members of any other race. In fact, research shows that white individuals are more likely to support the death penalty when the perpetrator is black.

Capital Punishment in the States

As far as capital punishment in the states goes, lethal injection is the most commonly used method in the 31 states that allow the death penalty. In 2008, the Supreme Court approved the use of a three-part cocktail of drugs to “humanely” execute an inmate. The drugs work by putting the individual into an unconscious state, relaxing his muscles and, finally, stopping his heart.

There is a backup, or secondary, method of execution to support capital punishment in the states. Specifically, if lethal injection is unavailable for some reason, these states also have permission to use another method of execution.

In some states, like Alabama, Florida, and South Carolina, the state may provide to the individual the option of an alternative method. Such alternatives can include electrocution, hanging, or even a firing squad. With regard to backup capital punishment in the states, however, the states must consult their statutes to ensure the secondary methods they choose to use are constitutional.

Capital Punishment Statistics

The Bureau of Justice Statistics (BJS) collects capital punishment statistics that include people who are on death row, as well as those whom the states have executed during a given year. They get these capital punishment statistics from the Federal Bureau of Prisons and from the state department of corrections from each state.

The BJS also compiles capital punishment statistics of executions scheduled to take place during the following year to provide a more accurate picture. In their database, the BJS includes everything from the individual’s race and offense, to their age at the time of the arrest, and the method of execution.

Capital Punishment Example Involving a Teenager

An example of capital punishment occurred in the matter of Roper v. Simmons in 2005. Here, 17-year-old Christopher Simmons wanted to commit murder, so he convinced his younger friends, Charles Benjamin and John Tessmer, to join him in the burglary and murder of Shirley Crook.

Ultimately, Tessmer decided not to join Simmons and Benjamin when they went to Crook’s home. Once there, the two bound Crook and drove her in her own minivan to a local park, where they then threw her off a bridge, leaving her to drown in the river below.

The next day, Simmons bragged to friends about the murder, and the police arrested him at his high school. Simmons waived his right to an attorney and confessed to the murder after two hours of interrogation. He even recreated the act on video for the officers.

Because he was 17 years old, the State of Missouri tried Simmons as an adult and convicted him for the murder. The state sought the death penalty as a possible sentence because of the nature of the crime. Simmons’ attorney argued that the court should grant leniency because of Simmons’ age, lack of a record, and personal testimony from his family about his good character.

The jury , however, agreed to the death penalty, and Simmons hired a new lawyer . Simmons’ new lawyer argued that Simmons’ troubled past lent to his tendency to act impulsively. Both the trial court and the appellate court upheld Simmons’ sentence.

Supreme Court

In 2002, in the case of Atkins v. Virginia , the U.S. Supreme Court found the execution of a mentally disabled person was unconstitutional. The Missouri Supreme Court had stayed Simmons’ execution while awaiting the Supreme Court’s decision in the Atkins matter. Encouraged by this ruling, the Missouri Supreme Court then overturned the death penalty as a sentence for minors.

Simmons’ case then made its own path up to the U.S. Supreme Court. Following their Atkins precedent , the Court agreed with Missouri that the execution of minors was unconstitutional in that it violated the Eighth Amendment . Writing for the majority, Justice Kennedy wrote:

“Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. ( Citation omitted.). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism ; a proven balance in political mechanisms through separation of powers ; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity.

These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

Related Legal Terms and Issues

• Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.
• Restitution – The restoration of rights or property previously taken away or surrendered; reparation made by giving compensation for loss or injury caused by wrongdoing.
• Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to rule in a civil matter.