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The Death Penalty The Death Penalty Chapter 20 1 Learning Objectives Contrast the issues in the debate over capital punishment Understand the history of the death penalty in America Discuss the legal issues that surround the death penalty Characterize the inmates on death row Speculate about the future of capital punishment The Debate over capital punishment Arguments Supporting the Death Penalty Arguments Against the Death Penalty Let’s be honest. At the end of the day, no one is truly going to change your mind regarding your opinions on the death penalty. That is not the objective of this chapter. There are reasons for the death penalty and reasons against it. How you weigh those are up to you. The goal of this chapter is to inform you of both sides, so that you can engage in an intellectual debate. Therefore, let’s set in stone that I am not here to debate you. Don’t feel the need to defend your views to me, and I will not defend mine to you. That being said, let’s get into some arguments for and against the death penalty. Pro DP: The three main reasons cited for the continued use of the death penalty are retribution, deterrence, and incapacitation. Retribution, of course, is the punishment. You took a life? We’ll take yours. The deterrence factor comes into play when we execute one offender in hopes that it will keep other offenders from committing similar death penalty eligible offenses. Finally, there is incapacitation. Incapacitation is the concept of stopping someone from acting. By executing someone, we are stopping their behavior for good. Against DP: Arguments against the death penalty are often rooted in morality. Opponents of the death penalty argue that the state does not have the right to take someone’s life; that the state would be just as evil as the offender. Opponents also emphasize that mistakes can be made, and the wrong people can be executed. For example, The Innocence Project focuses on getting innocent people out of jail, and has even freed innocent people who were on death row. Finally, there is the argument that the death penalty is discriminatory, often preying on poor people and racial minorities. Further, Van de Haag noted that arguments regarding the death penalty are often either utilitarian or moral. We’ve already outlined some of the moral aspects, a life for a life, or on the opposite, no one has the right to take life. The utilitarian argument for the death penalty is based on the belief that executions of wrongdoers deter others from committing crimes. Let’s separate facts. Studies, more than 200, have found that the death penalty does not deter crime. This was not always the case, though, as an economist in 1975 found that for every execution completed, 7-8 murders were prevented. Of course, those who support the death penalty were thrilled. His methodology was almost immediately questioned, and when the study was reanalyzed, they found there was no deterrent effect. 3 The Death Penalty in America Death row population Public opinion The death penalty has generated controversy ever since colonial times. The last public execution took place in Kentucky in 1936. Now, executions are often closed to a majority of the public, and are more humane than a hanging. But, who is on death row? What does the population look like? Death Row Population Between 1930 and 1967, 3,859 men and women were executed by state and federal authorities. In 1935, 199 people were put to death; since then, the number of yearly executions began to fall. In 1967, the Supreme Court ordered a stay of executions pending a hearing due to claims of discrimination. However, in 1976, the USSC reaffirmed the constitutionality of the death penalty and state legislatures were quick to enact new laws providing for the execution of convicted murderers. From 1977 to 2014, 1,379 people had been executed. In 2013, there were 3,088 people awaiting execution. Death penalty opponents argue that the decreased death row population reflects a public wary of executions, concern about whether capital punishment is carried out fairly, and media coverage of individuals who were wrongly convicted. Public Opinion It is very likely you have your own opinion on the death penalty, that has been shaped by many aspects. Since 1936, the Gallup Organization has been asking the public, “Are you in favor of the death penalty for a person convicted of murder?” The answers to this question have shifted dramatically over the decades that is has been asked. Prior to 1960, many Americans favored the death penalty. However, it reached a low in 1966 42%. Increases in violent crime led to an all time high approval rate of the death penalty in 1994, which was 80%. Since 1994, though, approval has dropped back down to 60%. However, some analysts argue that support for capital punishment plunges when alternatives, such as life without parole, are presented. The public becomes more spilt when asked “Would you rather have an offender face the death penalty or life without parole?” This argument is supported by data that has been collected by Gallup. 4 The Death penalty + the constitution Key U.S. Supreme Court Decisions Furman v. Georgia Gregg v. Georgia McClesky v. Kemp Atkins v. Virginia Ring v. Arizona Roper v. Simmons Death obviously differs from other punishments in that it is final and irreversible. As a result, the USSC has examined the decision-making process in capital cases to ensure that the Constitution’s requirements regarding due process, equal protection, and cruel and unusual punishments are fulfilled. Therefore, there have been multiple key USSC decisions regarding the death penalty. Furman v. Georgia (1972): The USSC ruled that the death penalty was itself not unconstitutional, but the way that is was administered constituted cruel and unusual punishment. There was ambiguity in the wording and there was a lack of systematic administration of the sentence. The USSC ruled that the death penalty was to be invalided in 39 states and DC. Gregg v. Georgia (1976): In Gregg the Court upheld those laws that required the sentencing judge or jury to take into account specific aggravating or mitigating factors in deciding which convicted murderers should be sentenced to death. Gregg also introduced the idea of bifurcated trials, in which guilt is determined in the first part of the trial and then execution was decided in the second part. The purpose of the two-stage decision making process is to ensure thorough deliberation before someone is given the ultimate punishment. The Court also endorsed a proportionality review, in which a higher appellate court reviews each death sentence to see if the DP was also imposed in similar cases. McClesky v. Kemp (1987): In this case, McClesky was a Black man who killed a white police officer during a robbery. He was given the death penalty. However, before the Supreme Court, McClesky’s attorney cited research showing a disparity in the imposition of the DP in Georgia, based on the race of the victim and the race of the defendant. It was found that defendants who killed White people received the DP 11 times more than those who killed Black people. In a 5-4 vote, the Justices rejected McClesky’s assertion that Georgia’s capital-sentencing practices violated the equal protection clause of the Constitution b producing racial discrimination. Atkins v. Virginia (2002): The USSC found that executing the mentally retarded was unconstitutional. Daryl Atkins, IQ of 59, was sentenced to death for killing Eric Nesbitt in a 7-11 parking lot. One of the pitfalls of this case is that the court did not define retardation. Ring v. Arizona (2002): Also in 2002, the USSC ruled that juries, rather than judges, must make he crucial factual decisions as to whether a convicted murderer should receive the death penalty. Ring overturned the law where judges alone decided whether there were aggravating factors that warrant capital punishment. Roper v. Simmons (2005): The USSC reduced the scope of capital punishment even further by ruling that offenders cannot be sentenced to death for crimes they committed before they reached the age of 18. Prior to this decision, the U.S. was among only a half-dozen countries in the entire world with laws that permitted death sentences for juveniles. 5 The death penalty + the constitution (2) Continuing legal issues Execution of the mentally ill Effective counsel Death-qualified juries Execution for child rape Appeals There are, of course, many other continuing legal issues with regards to capital punishment. Execution of the Mentally Ill: Insanity is recognized defense for commission of a crime because mens rea (criminal intent) is not present. But, the question then becomes if those who become mentally ill after their crime are still able to be executed. Is it right? The Supreme Court answered this question in Ford v. Wainwright (1985). Though he didn’t show signs of being mentally ill during trial, Ford began to show signs of serious delusion during his prison time. Justice Marshall concluded that the 8th Amendment prohibited the state from executing the insane- the accused must comprehend the fact that they had been sentenced to death and understand the reason for it. However, there have been exceptions. Once such occurred in 1991, when a suspect murdered two people and then shot himself in the head. He didn’t hit all of his brain, and was left with the mental capabilities of a small child, who had no idea he was going to be executed. The USSC denied the appeal and he was executed. Although the Supreme Court has rued that the insane should not be executed, how competence should be determined remains an issue. A second issue concerns the morality of treating a mentally ill inmate with the intent to then execute them. This occurred in 2003, where the U.S. Eighth Circuit Court of Appeals ruled that Arkansas could force an inmate to take antipsychotic drugs to make him sane enough to execute. He was killed in 2004. Effective Counsel: In Strickland v. Washington (1984) the USSC ruled that defendants in capital cases have the right to representation that meets an “objective standard of reasonableness.” Basically, the defendant must have reasonable representation. Counsel must be present and engaged, as a result of one counsel member sleeping through his defendant’s capital murder trial. The right to effective counsel was reaffirmed in June of 2003 when it overturned the death sentence of an inmate whose lawyers failed to provide adequate counsel. Death Qualified Juries: Should people who are opposed to the death penalty be excluded from juries in capital cases? In Witherspoon v. Illinois (1986)