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why the death penalty should not be abolished.

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Campaigner Michael Hayworth answers some of the tougher questions - like why it is fundamentally important to abolish the death penalty?
Anti-death penalty campaigners can rattle off 25 different reasons why we need to abolish the death penalty: its cruel, degrading, inhumane, what about families, it's just wrong and world peace.

Most of us can do this so quickly that we cause a small whirlpool in the organic latte that we proudly paid $4.80 for at a garage in the industrial estates of inner western Sydney.

Despite the overwhelming global trend against executions, a number of reasons for the death penalty continue to come up. Here is my attempt to respond to them.

1. We need to be 'tough on crime'

Everyone agrees that crime is bad and we need to stop it. This seems sensible and logical in every way, until we ask the question: do we need the death penalty to be 'tough' on crime? The answer is no, we don't.

The fallacy that crueler punishments deter crime doesn't take into account that there are complex social and economic factors that drive crime rates, and secondly, that criminals don't often plan on getting caught or think through all the consequences of their actions.

"Since Canada stopped executing the murder rate has dropped by 44 per cent"

Simplified statistics don't help either.

Did you know that since Canada stopped executing the murder rate has dropped by 44 per cent? Does this mean that stopping executions will stop murders? Of course not, but it does demonstrate that the issues that drive and prevent crime are too complex to fit into a one line statistic or sound-byte.

The point here is that preventing crime takes long-term research into the causes, effective police work and rehabilitation. All of which can happen without the use of the death penalty.

2. 'They did the crime, they should do the time'

Various iterations of this comment came thick and fast when Amnesty began calling for the clemency of Australians Andrew Chan and Myuran Sukumaran, currently on death row in Bali for drug offences. Ironically, with the death penalty, we are not talking about time, we are talking about the opposite.

Both men acknowledge their crimes and recognise that they must face punishment. But a death sentence deprives people of the opportunity to reform. Myuran Sukumaran and Andrew Chan are great examples of reform, one running art classes and the other studying to be a pastor. Their reform has come so far that a former governor of Kerobokan prison has argued they shouldn't be executed.

Many others who languish on death row across the world have acknowledged their crime and reformed. There is no benefit to the state in killing these people, a senseless deprivation of life.

The immediate counter argument is that the threat of death forces people to reform. Again, the evidence for this simply isn't conclusive.

Criminal justice systems the world over have had great success of reform without the threat of death, and often due to programs that focus on offender rehabilitation.

3. The criminal justice system is fair

Australia's criminal justice system is largely fair, but that certainly can't be said of many of the countries using the death penalty. We know that the death penalty is applied overwhelmingly to the working class, ethnic minorities and other marginalised groups. This happens not because people in these categories are more prone to crime, but because they have less access to legal resources.

Ask any criminal lawyer whether or not the amount of legal resources available on a particular case makes a difference and they will give you a deadpan 'yes'. Legal support might not get the verdict is changed, but mitigating circumstances can be presented, alternate arguments explored and evidence double-checked. All of this makes a difference to whether a death sentence is handed down.

"We can't give back a life once it is taken, and for one I would prefer a cautious approach to even the slightest possibility of taking an innocent person's life"

Many justice systems are stacked against the person charged with the crime. Siti Zainab is an Indonesian national on death row in Saudi Arabia. Siti was a domestic worker who, after horrific treatment at the hands of her employer, allegedly killed a member of the household. Domestic workers are often unable to escape their employers treatment in the Gulf and Siti reportedly suffers from a mental illness.

Regardless of the country, a fair criminal justice system does not mean an infallible one - errors can and do occur. Troy Davis was executed in Georgia, USA after seven of nine key witnesses changed their testimony, some going so far as to argue for Troy's innocence.

We can't give back a life once it is taken, and for one I would prefer a cautious approach to even the slightest possibility of taking an innocent person's life.

4. It is cheaper and more humane to execute people.

Even I was surprised by the facts on this one. A study done in California discovered that it was actually more expensive to execute a person than to keep them in jail for life. Yes, that's right - the amount of time and money spent on taking a person's life is greater than keeping them in prison.

For those of us who think there is a humane way to execute, let's reflect on how some executions actually occur.

Often prisoners are woken with no knowledge they are to be killed, taken to a remote location, tied to a post and shot in the chest. If they don't die, a captain takes a pistol and shoots them in the head. For hangings, people are sometimes strapped to a steel board to stop them moving as they are wheeled up to a noose.

Governments often keep this information on executions secret, even to the point of loading some of the guns with blanks so no one definitively knows who in the firing squad fired the death blow.

Whichever way you look at it, killing another human isn't humane, not even close. And when you get to the details it is simply vengeful and cruel.

5. But what about [insert horrible despot here]: surely they should be executed?

There are a lot of people who have done horrific, unspeakable things, but modern societies should not join their ranks by also carrying out a murder. People are judged by their actions, and killing another human being is about as profound as actions come.

We can't take back death, we know that systems make mistakes and we are lucky enough to live in a country where the majority of people oppose this cruel punishment.

"We can't take back death, we know that systems make mistakes and we are lucky enough to live in a country where the majority of people oppose this cruel punishment"

This knowledge give us an opportunity, a chance to ask our neighbours in the region to end this practice. Today, thousands of Australians will start a movement and light candles at vigils all across the country to end the backslide towards execution in Asia.

It might sound simple but we shouldn't underestimate the capacity of a group of Australians to change the world.
An edited version of this story first appeared on news.com.au Find out more about the Amnesty International Australia's campaigns against the death penalty and how you can help save lives today. Join our Human Rights Defenders program to help us abolish the death penalty.
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5 reasons some people think the world needs the death penalty

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Here are five reasons why some people think the world needs the death penalty, and five ways in which they're wrong.

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why the death penalty should be abolished.

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why the death penalty should be abolished.

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The risk of executing innocent people exists in any justice system
There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable.

The arbitrary application of the death penalty can never be ruled out
The death penalty is often used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups.

The death penalty is incompatible with human rights and human dignity
The death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.

The death penalty does not deter crime effectively
The death penalty lacks the deterrent effect which is commonly referred to by its advocates. As recently stated by the General Assembly of the United Nations, "there is no conclusive evidence of the deterrent value of the death penalty" (UNGA Resolution 65/206). It is noteworthy that in many retentionist states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals.

Public opinion is not a major stumbling block for abolition
Public support for the death penalty does not necessarily mean that taking away the life of a human being by the state is right. There are undisputed historical precedences where gross human rights violations had had the support of a majority of the people, but which were condemned vigorously later on. It is the job of leading figures and politicians to underline the incompatibility of capital punishment with human rights and human dignity.

It needs to be pointed out that public support for the death penalty is inextricably linked to the desire of the people to be free from crime. However, there exist more effective ways to prevent crime.

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Why the Death Penalty should be abolished

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The risk of executing innocent people exists in any justice system There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable.

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why the death penalty is still legal.

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The death penalty is the state-sanctioned punishment of executing an individual for a specific crime. Congress, as well as any state legislature, may prescribe the death penalty, also known as capital punishment, for crimes considered capital offenses. The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment's Due Process Clause, the Eighth Amendment applies to the states, as well as the federal government.

Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts look for objective factors to show a change in community standards and make independent evaluations about whether the statute in question is reasonable.

History of the Death Penalty

Initial Ban

In Furman v. Georgia, 408 U.S. 238 (1972), the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against impoverished and minority communities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society.

Reinstatement

In Gregg v. Georgia, 428 U.S. 153 (1976), the Court refused to expand Furman. The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence. Specifically, the Court upheld Georgia's new capital sentencing procedures, reasoning that the Georgia rules reduced the problem of arbitrary application as seen in earlier statutes.

Proportionality Requirement

In Coker v. Georgia, 433 U.S. 584 (1977), the U.S. Supreme Court held that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment's prohibition against cruel and unusual punishment.

In performing its proportionality analysis, the Supreme Court looks to the following three factors:

A consideration of the offense's gravity and the stringency of the penalty;

A consideration of how the jurisdiction punishes its other criminals;

And a consideration of how other jurisdictions punish the same crime.

Twenty-one years later, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court extended its ruling in , holding that the penalty is categorically unavailable for cases of child rape in which the victim lives. Because only six states in the country permitted execution as a penalty for child rape, the Supreme Court found that national consensus rendered the death penalty disproportionate in these cases.

Principle of Individualized Sentencing

To impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualized sentencing process. In Ring v. Arizon a, 536 U.S. 584 (2002), the Supreme Court held that it is unconstitutional for "a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty."

The Supreme Court further refined the requirement of "a finding of aggravating factors" in Brown v. Sanders, 546 U.S. 212 (2006). For cases in which an appellate court rules a sentencing factor to be invalid, the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor.

The decision in offered yet another clarification to the principle of individualized sentencing jurisprudence. Under Marsh, states may impose the death penalty when the jury finds any aggravating and mitigating factors to be equally weighted, without violating the principle of individualized sentencing.

Method of Execution

A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal.

State courts and lower federal courts have refused to strike down hanging and electrocution as impermissible methods of execution. In Baze v. Rees, 553. U.S 35 (2008), the Supreme Court held that the lethal injection does not constitute a cruel and unusual punishment. The Supreme Court in Baze also applied an "objectively intolerable" test to determine if the method of execution violates the Eighth Amendment's ban on cruel and unusual punishment. The legality of lethal injection was upheld in Glossip v. Gross, 576 U.S. (2015).

Classes of Persons Ineligible for the Death Penalty

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court decided that executing intellectually/developmentally disabled criminals violates the ban on "cruel and unusual punishment" because their cognitive disability lessens the severity of the crime, and therefore renders the extraordinary penalty of death as disproportionately severe. However, in Bobby v. Bies, 556 U.S. 825 (2009), the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled developmentally disabled before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate disability claims.

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court banned the death penalty for all juvenile offenders. The majority opinion pointed to teenagers' lack of maturity and responsibility, greater vulnerability to negative influences, and incomplete character development. The Court concluded that juvenile offenders assume diminished culpability for their crimes.

In Hall v. Florida, 572 U.S. (2014), the Supreme Court held that a brightline IQ threshold may not decide whether someone is intellectually/developmentally disabled for the purpose of being eligible for the death penalty.

For more on the death penalty, see this Florida State University Law Review article, and this Harvard Law Review article.

Federal Material

U.S. Constitution and Federal Statutes

Federal Judicial Decisions

U.S. Supreme Court:

State Material

State Statutes

State Judicial Decisions

N.Y. Court of Appeals:

Key Internet Sources

Cornell Law School Death Penalty Project

Cornell Center on the Death Penalty Worldwide

Death Penalty Information Center

Southern Center for Human Rights

See also: Criminal Procedure; Sentencing

[Last updated in September of 2022 by the Wex Definitions Team]

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The death penalty is the state-sanctioned punishment of executing an individual for a specific crime. Congress, as well as any state legislature, may prescribe the death penalty, also known as capital punishment, for crimes considered capital offenses.

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Death Penalty | Equal Justice Initiative

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The death penalty in America is a failed, expensive policy, defined by bias and error.

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The death penalty is wrong because it disproportionately affects certain groups, inflicts physical and psychological torment, burdens taxpayers, and doesn't deter or resolve the root causes of crime.
Over 70% of the countries in the world have abolished the death penalty, but it's still used in places like China, Japan, Saudi Arabia, and the United States. Public opinion is divided, but over the years, support for the death penalty has waned. Supporters say it's a valuable crime deterrent while opponents argue it fails in this purpose. In this article, we'll explore these claims, as well as other reasons why the death penalty is wrong.

#1. It's inhumane
#2. It inflicts psychological torment
#3. It burdens taxpayers
#4. It doesn't deter crime
#5. It doesn't address the root causes of crime
#6. It's biased against people experiencing poverty
#7. It's disproportionately hurts people with disabilities
#8. It has a racial bias
#9. It's used as a tool of authoritarianism
#10. It's irreversible

#1. It's inhumane
Content warning: This paragraph includes descriptions of a botched execution
Methods of execution have included firing squads, hanging, the electric chair, and lethal injections. Are these punishments inhumane? Death penalty critics look to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is an international treaty intended to prevent actions considered inhumane. While the Convention doesn't take a clear stance on the death penalty, many believe executions should be classified as cruel and inhumane. For those who believe executions can be performed "humanely," there's still the problem of botched executions. Research shows that 3% of executions between 1890-2010 in the US were botched. Lethal injection has the highest rate of error despite being the most common execution option. When injections go wrong, it can take a long time for a prisoner to die.

In 2014 in Oklahoma, Clayton Lockett was subjected to a botched execution. Things started poorly while the execution team hunted for a viable vein and realized they didn't have the right needles. Then, it took at least 16 pokes to get an IV inserted. Lockett was in clear distress as the drugs began to enter his body, and the execution was halted. Lockett died of a heart attack 43 minutes after the first drug - midazolam - was administered. While it's not clear if the drug can be blamed in Lockett's case, sedatives like midazolam have played a role in several botched executions. Given these facts, the death penalty can easily be considered inhumane.

#2. It inflicts psychological torment

While the death penalty can cause severe physical pain, the time spent on death row can inflict psychological torment, as well. According to The Death Penalty Information Center, death-row prisoners in the United States typically spend over a decade waiting for their execution dates or for their death sentences to be overturned. During those agonizing years, prisoners are isolated, excluded from any employment or educational programs, and restricted from exercise or visitation. This can cause what some experts call "death row syndrome," which makes prisoners suicidal and delusional. The prisoner is essentially tortured while on death row.

The death penalty doesn't only affect death-row prisoners. Those working on death row suffer, too. In 2022, NPR released an investigation where they spoke with current and former executioners, lawyers, wardens, and other workers who had been involved with more than 200 executions. They reported "serious mental and physical repercussions." Nearly everyone NPR spoke with no longer supported the death penalty. While some may still believe death is an appropriate punishment for certain crimes, society needs to consider the health of those tasked with carrying out that punishment.

#3. It burdens taxpayers with high costs

States use taxpayer money to fund executions. You may think death penalty sentences cost less than life imprisonment, but research shows that's not true. According to data collected by Amnesty International, Kansas paid 70% more for a death penalty case than a comparable non-death penalty case. The median cost of a non-death penalty case (through the end of incarceration) is $740,000 while the median cost of a death penalty case through execution is a striking $1.26 million. Why is the death penalty so expensive? Legal and pre-trial fees, as well as the length of death penalty trials, the cost of appeals, and heightened security on death row all cost more than non-death penalty cases.

Many taxpayers have moral qualms about their taxes going to the death penalty, but there are tangible consequences, too. The money used for death penalty cases is being diverted from other measures such as mental health treatment, victim services, drug treatment programs, and more. Most people would prefer their taxes to pay for these types of services rather than long trials, appeals, and other death-penalty case activities.

#3. It doesn't deter crime

Many people can admit the death penalty is not a perfect system, but if it deters crime, isn't it worth keeping? That statement contains a big "if." The Death Penalty Information Center has information showing that states without the death penalty have a consistently lower murder rate than states with the death penalty. Since 1990, the gap has increased. A 2020 analysis found that 9 out of 10 states with the highest pandemic murder rates were states with the death penalty. 8 out of the 11 states with the lowest pandemic murder rates had abolished the death penalty. Data like this suggests that the death penalty does not deter murder.

Why isn't the threat of death enough to dissuade people from committing murder? The answer may lie in human psychology and the minds of those committing crimes. According to an article in Psychology Today, most offenders don't behave rationally during a crime. Poor mental health is a common trigger. According to research, 43% of those in state prisons have a diagnosed mental disorder. When it comes to what's known as "expressive crimes," which are crimes driven by rage, depression, and drug or alcohol use, people are not thinking about the consequences they might face. The death penalty doesn't factor into their decision-making.

#4. It doesn't address the root causes of crime

The causes of crime are complex, but there's little doubt that the death penalty fails to address them. Consider the United States, which experienced a post-2020 increase in violence. According to the Brennan Center for Justice, gun violence was a major contributor. The FBI found that guns were responsible for 77% of murders nationwide in 2020. In the same report, COVID-19 was frequently referenced as a factor as more people experienced disruptions to their jobs and social lives. Americans' mental health suffered, as well, and while people with mental illness are more likely to be the victims of crime rather than perpetrators, certain illnesses (and a lack of treatment) are linked to criminal behavior.

The death penalty doesn't address any of the possible roots of violent crime, including socioeconomic disruptions and mental health. Considering the cost of death penalty cases and their effect on the mental health of all those involved, one could argue that the death penalty contributes to conditions that lead to crime.
Want to learn more about the death penalty? Check out these articles.
#6. It's biased against people experiencing poverty

The death penalty is not applied equally based on the crimes people commit. Certain groups are much more likely than others to receive a sentence. According to The International Federation of Human Rights, 95% of prisoners on death row in the United States come from "underprivileged backgrounds. " This doesn't mean people experiencing poverty have an inherent urge to commit crimes. The criminalization of poverty increases a person's risk for arrest, while the high cost of education, mental health treatment, substance abuse treatment, and other assistance can push people into crime.

Once in the criminal justice system, those with money can pay for private lawyers, investigations, appeals, and other actions that help them avoid the death penalty. Those experiencing poverty have to rely on underfunded public defenders. Rather than punishing those who've committed the most severe crimes, the system punishes those with the fewest resources. If the death penalty disproportionately affects people experiencing poverty, it's a deeply unfair and unjust system.

#7. It's disproportionately hurting people with intellectual disabilities

People with intellectual disabilities face increased discrimination in the criminal justice system. They're more likely to falsely confess to a crime, less equipped to work with lawyers, and more likely to experience harsh and violent treatment in prison. In the United States, jurisdictions using capital punishment are required to make sure that people with intellectual disabilities are not sentenced to death or executed. However, the standards for this determination are not consistent. According to The Innocence Project, at least 12 states use IQ scores to determine intellectual disability, a method many experts find problematic. Certain states also require clear evidence, while others only ask for a "preponderance of evidence." This means a person could be considered intellectually disabled in one state and not in another.

Even if a person with intellectual disabilities is not ultimately killed by the state, the road to a new sentence is brutal. Raymond Riles, who was sent to death row in 1976, remained there for more than 45 years despite being repeatedly deemed mentally incompetent. In 2021, his death sentence was finally tossed and he was sentenced to life in prison. Riles' story is just one of many where a person with intellectual disabilities is mistreated or executed.

#8. It has a racial bias

In the United States, racial discrepancies are the biggest concern for many death penalty critics. According to research, 35% of people executed in the last 40 years have been Black, despite the fact Black Americans only make up 13% of the general population. When researchers take a closer look, they discover patterns of discrimination based on race. Virginia in particular has been scrutinized for its history, which has roots in early capital punishment laws. White defendants could only be executed for first-degree murder, while a variety of non-homicide crimes could get enslaved Black defendants executed. Between 1900-1969, Virginia executed 73 Black men for non-homicide crimes, while 185 were executed for murder. In that same time frame, no white person was executed for a non-homicide crime while 46 were executed for murder. In 2021, Virginia abolished the death penalty, citing the state's history of racial disparities.

There's also racial bias regarding what crimes receive death penalty sentences. According to a 2003 study, prosecutors were more likely to seek the death penalty when the victim was white, while they were less likely to pursue that verdict if the victim was Black. Another study, this one from 2007, reflected similar findings. Nationally, mountains of research show racial bias in how the death penalty is applied.

#9. It's used as a tool of authoritarianism

In theory, the death penalty is only meant to punish the most serious crimes, like murder. However, in places around the world, governments use executions freely and for non-lethal crimes. According to Amnesty International, recorded executions in 2022 hit their highest figure in five years. 883 people (which does not count the thousands possibly executed in China) were killed across 20 countries, which represents a 53% rise since 2021. Amnesty's Secretary General says almost 40% of all known executions are for drug-related offenses, while in Iran, people were executed for protesting the regime. Because the governments still using the death penalty often hide their numbers, there are likely more executions not on the record.

It's clear many governments inflicting the death penalty are not interested in justice, but rather in suppression and control. By using the death penalty arbitrarily, authorities set shifting definitions for what's "unacceptable" in society and what's an appropriate punishment. It makes citizens fearful and violates their human rights. As long the death penalty is legal, it has the potential to be abused for a government's own purposes.

#10. It can't be reversed in light of new evidence or errors

What makes the death penalty distinct from life in prison is that the judgment can't be reversed if new evidence is discovered. It's a disturbingly frequent occurrence. In 2000, Professor James Liebman from Columbia Law School released a study examining every capital conviction and appeal between 1973-1995. More than 90% of the states that gave death sentences had overall error rates of 52% or higher. 85% of states had error rates of 60% or higher. A more recent analysis from 2014 collected data from all death sentences between 1973-2004. They estimated that around 1 in 25 of those given a death sentence had likely been incorrectly convicted. While most of those who receive a death penalty sentence are eventually removed from death row to serve life imprisonment, innocent prisoners are never freed.

The Death Penalty Information Center maintains a database of exonerations, which means the person was acquitted or the charges were dismissed completely. Reasons include false confessions, insufficient evidence, perjury, official misconduct, and inadequate legal defense. Data like this exposes how flawed the criminal justice system is and how frequent errors are. It's not a system we should trust with people's lives.

The death penalty: a reading list

Interested in learning more about the death penalty? Here's where to start:

This 2015 book (also made into a film) follows Bryan Stevenson as he establishes the Equal Justice Initiative. The book mostly focuses on Stevenson's work for Water McMillian, a Black man sentenced to death for a crime he didn't commit.

Written in 1994, this book follows a Roman Catholic nun as she learns about the death penalty in America, gets to know everyone touched by the system, and works through her beliefs.

In this award-winning 2022 book, Maurice Chammah tracks the story of capital punishment through stories of those with personal experience, like a prosecutor turned judge, a lawyer, executioners, and the prisoners living on death row. Chammah is a journalist and staff writer for The Marshall Project.

A collection of 99 first-person, anonymous accounts of men on death row in the United States, this 2021 book shines a light on the humanity of the people who've been sentenced to death. The book is organized into eight life stages from early childhood right to the moment a man faces his execution.

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10 Reasons Why The Death Penalty is Wrong

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The death penalty is wrong because it disproportionately affects certain groups, inflicts physical and psychological torment, burdens taxpayers, and doesn't deter or resolve the root causes of crime. Over 70% of the countries in the world have abolished the death penalty, but it's still used in places like China, Japan, Saudi Arabia, and the United [...]

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The Federal Death Penalty System:

Supplementary Data, Analysis and Revised Protocols for Capital Case Review

June 6, 2001

THE FEDERAL DEATH PENALTY SYSTEM: Supplementary Data, Analysis and Revised Protocols for Capital Case Review

U.S. Department of Justice Washington, D.C. June 6, 2001

TABLE OF CONTENTS

INTRODUCTION PART I: LEGAL RULES AND ADMINISTRATIVE PROCEDURES

1. Federal Death Penalty Law

2. The Capital Case Review Procedure

PART II: STUDY OF THE SYSTEM

1. The September 12, 2000 Report

2. Related Justice Department and Administration Decisions

3. The Supplementary Study

PART III: ANALYSIS OF THE DATA

1. Potential Federal Capital Cases

2. Subsequent Decisional Stages

PART IV: PROTOCOL REVISION

1. Broadening the Scope of the Process

2. Simplification of Decisions Against Seeking the Death Penalty

THE FEDERAL DEATH PENALTY SYSTEM: Supplementary Data, Analysis and Revised Protocols for Capital Case Review U.S. Department of Justice
INTRODUCTION Washington, D.C.
June 6, 2001

This report completes a survey and assessment of the federal death penalty system. At the direction of Attorney General Janet Reno, a study of decision-making processes and demographic factors in federal capital cases was carried out last year. The Department of Justice published an initial report setting out the results of this study on September 12, 2000 (hereafter, the "Sept. 12 report"). Attorney General Reno wished to supplement the information that was available at the time of the Sept. 12 report, and the Department undertook further information gathering and analysis. Noting the pendency of this follow-up study, President Clinton delayed the first scheduled federal execution in the modern period, and directed that the results of the Department's analysis be reported to the President by the end of April 2001.

Further study has now been carried out, and its results have been analyzed. The findings under the augmented data, and related policy decisions, may be summarized as follows:

The proportion of minority defendants in federal capital cases exceeds the proportion of minority individuals in the general population. The information gathered by the Department indicates that the cause of this disproportion is not racial or ethnic bias, but the representation of minorities in the pool of potential federal capital cases. A factor of particular importance is the focus of federal enforcement efforts on drug trafficking enterprises and related criminal violence. The prosecution of drug crimes has generally been a key priority both of Congress and of federal law enforcement for many years. Federal authorities are often better able to carry out effective prosecutions in this area for such reasons as the complexity of drug enterprise cases, their multi jurisdictional character, and the availability to federal prosecutors of greater investigative resources or more effective legal tools.

In areas where large-scale, organized drug trafficking is largely carried out by gangs whose membership is drawn from minority groups, the active federal role in investigating and prosecuting these crimes results in a high proportion of minority defendants in federal cases, including a high proportion of minority defendants in potential capital cases arising from the lethal violence associated with the drug trade. This is not the result of any form of bias, but reflects the normal factors that affect the division of federal and state prosecutorial responsibility: the nature of the offenses subject to federal jurisdiction, the demographics of crime in areas where that jurisdiction is exercised, the respective capacities of federal and state law enforcement authorities, and the cooperative arrangements and divisions of responsibility that federal and state authorities develop in light of these considerations.

Within the universe of federal cases that may be pursued as capital crimes, cases in which the death penalty is actually sought depend on subsequent exercises of prosecutorial judgment and discretion. Under existing Justice Department procedures, United States Attorneys cannot decide unilaterally whether to seek the death penalty in cases involving capital charges, but are required to submit all such cases to a central review procedure. These cases are reviewed by a committee of senior attorneys, and the Attorney General personally makes a final decision whether to seek a capital sentence. The Sept. 12 report found that at no stage of the review process were decisions to recommend or approve the seeking of a capital sentence made at higher rates for Black or Hispanic defendants than for White defendants. For example, in the cases considered by the Attorney General, the Attorney General approved seeking the death penalty for 38% of White defendants, 25% of Black defendants, and 20% of Hispanic defendants.

The data available in the preparation of the Sept. 12 report was limited to information concerning cases involving capital charges that were submitted to the review procedure. Data was not available concerning cases in the United States Attorneys' offices which would factually support charging an offense punishable by death, but which were not actually charged as capital crimes and submitted for review. Attorney General Reno accordingly directed that more complete information be obtained. The United States Attorney offices submitted this supplementary information subsequent to the Sept. 12 report.

Like the data considered in the Sept. 12 report, the augmented data provides no evidence that minority defendants are subjected to bias or otherwise disfavored in decisions concerning capital punishment. Within the broader universe of potential capital cases, capital charges and submission to the review procedure for a decision about seeking the death penalty did not occur with any greater frequency in cases involving Black or Hispanic defendants than in cases involving White defendants.

While the Department's review of existing federal death penalty procedures has produced no evidence of bias against racial or ethnic minorities, it has suggested that changes could be made to promote public confidence in the process's fairness and to improve its efficiency. For example, as noted above, consideration of the broader universe of potential capital cases reinforced the findings of the Sept. 12 study which tended to refute any assumption of bias against racial or ethnic minorities. However, obtaining information about this broader class of cases required an extraordinary effort because the existing review procedure does not regularly obtain information about cases in which a capital charge is factually supportable, but the U.S. Attorney office decides to charge (or accept a plea to) a noncapital crime. Hence, in the future, U.S. Attorneys will be required to submit information, including racial and ethnic data, about potential capital cases, as well as those in which a capital offense is actually being charged. This should help to maintain public confidence in the fairness of the process by making more complete racial and ethnic data available for both actual and potential federal capital cases on a continuing basis.

Part I of this report describes the legal rules and administrative procedures governing federal capital cases, including the existing safeguards against racial and ethnic bias. Part II describes the central findings of the Sept. 12 report, the reaction and policy decisions of Department and Administration officials at the time, their direction that more extensive data collection and analysis be carried out, and the results of further study. Part III analyzes the data as it bears on the role of racial or ethnic factors. Part IV discusses the contemplated revision of the Department's protocol for reviewing capital cases.

PART I: LEGAL RULES AND ADMINISTRATIVE PROCEDURES

Decisions of the Supreme Court beginning in the early 1970s imposed new restrictions on capital punishment, producing a temporary cessation in the use of the death penalty as a criminal sanction. Most states subsequently reformed their death penalty laws and procedures to conform to the new standards. Congress initially sought to do the same for federal cases through provisions of the Anti-Drug Abuse Act of 1988, which made the death penalty available for certain drug-related offenses. The federal death penalty was effectively revived on a broader basis through provisions of the Violent Crime Control and Law Enforcement Act of 1994, which added death penalty authorizations to many additional offense provisions, and established general statutory procedures for seeking and imposing capital sentences. The federal offenses for which the death penalty is currently authorized generally require as a necessary element the killing of a victim, but they include a few non-homicidal offenses, such as treason and espionage.
A. FEDERAL DEATH PENALTY LAW
These federal legislative enactments have been paralleled by the Justice Department's adoption of administrative standards and procedures for death penalty decisions in federal cases. Following the 1988 enactment, the Department adopted a policy that required United States Attorneys to submit to the Attorney General for review and approval any case in which the United States Attorney wished to seek the death penalty. Following the 1994 enactment's expansion of federal death penalty authorizations, the Department adopted the current protocol for death penalty cases. The current protocol requires United States Attorneys to submit to a centralized review process all cases involving a pending charge of an offense for which the death penalty is a legally authorized sanction, regardless of whether the United States Attorney wishes to seek the death penalty.

Both the legal rules and the administrative procedures that currently govern federal capital cases incorporate extensive safeguards against any influence of racial or ethnic bias or prejudice. The main features of the existing system are as follows:

In cases where a capital sentence is sought, the defendant is entitled to the appointment of two lawyers to represent him, "of whom at least 1 shall be learned in the law applicable to capital cases." 18 U.S.C. 3005. Indigent capital defendants have a continuing right at all stages of litigation and review to provision of needed defense resources, and to appointment of defense counsel who satisfy specific years-of-experience standards or "whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation." 21 U.S.C. 848(q).

If the defendant is convicted of a capital offense, the guilt-determination phase of the trial is followed by a special hearing to determine whether a sentence of death is justified. The hearing is normally held before a jury of 12 members. At the hearing, the prosecutor presents evidence in support of the aggravating factors for which notice has previously been provided, and the defense is free to present evidence concerning any mitigating factors. The government must prove the existence of aggravating factors beyond a reasonable doubt, and the jury must unanimously agree that such a factor or factors have been established. The defendant need only establish the existence of mitigating factors by a preponderance of the evidence, and each juror is free to conclude that such factors have been established, regardless of whether other members of the jury agree. To recommend a sentence of death, the jury must determine that the defendant had the requisite culpability with respect to the victim's death, and must unanimously agree that the aggravating factor or factors it has found sufficiently outweigh any mitigating factors to justify a capital sentence. If the jury does recommend a capital sentence, the court is required to sentence the defendant accordingly. If the jury does not unanimously agree that the death penalty should be imposed, the defendant is given a lesser (non-capital) sentence. 18 U.S.C. 3593-94.

The rules for capital sentencing hearings require special instructions and certifications to guard against any possible influence of bias or prejudice. The court instructs the jury that, "in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be." On returning a recommendation concerning the sentence, the jury must also return to the court a certificate signed by each juror, "that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or any victim was not involved in reaching his or her individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be." 18 U.S.C. 3593(f).

In cases where a capital sentence is imposed, the court of appeals' review of the case includes a determination of "whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor." If the appellate court finds that the sentence was based on such improper factors, it must send the case back to the trial court for another capital sentencing hearing or imposition of a noncapital sentence. 18 U.S.C. 3595. Following the appeal, there is regularly further judicial review in capital cases, including a motion for collateral relief under 28 U.S.C. 2255. The defendant may thereafter apply for executive clemency. As noted above, the defendant has a continuing right to adequate resources and representation by competent counsel at all stages of the process.

The Justice Department's capital case review procedure is governed by a protocol set out in section 9-10.010 et seq. of the United States Attorneys' Manual (USAM). The procedure "is designed to promote consistency and fairness." The protocol provides that "[a]s is the case in all other actions taken in the course of Federal prosecutions, bias for or against an individual based upon characteristics such as race or ethnic origin may play no role in the decision whether to seek the death penalty." USAM 9-10.080.

The protocol requires United States Attorneys to submit cases involving a pending charge of an offense for which the death penalty is a legally authorized sanction, regardless of whether or not the U.S. Attorney recommends seeking the death penalty. The death penalty cannot be sought without the prior written authorization of the Attorney General.

The U.S. Attorneys' capital case submissions are sent to the Criminal Division and must include a death penalty evaluation form for each defendant charged with a capital offense, a detailed prosecution memorandum, copies of indictments, written materials submitted by defense counsel in opposition to the death penalty, and other significant documents and evidence as appropriate. The Capital Case Unit of the Criminal Division reviews the submission, seeks additional information when necessary, and drafts an initial analysis and proposed recommendation.

The case is then forwarded to a committee of senior Justice Department lawyers, the Attorney General's capital case review committee. The review committee meets with the Capital Case Unit attorneys, the U.S. Attorney and/or the prosecutors in the U.S. Attorney's office who are responsible for the case, and defense counsel. During this meeting, defense counsel are afforded an opportunity to present any arguments against seeking the death penalty for their client. The review committee considers "all information presented to it, including any evidence of racial bias against the defendant or evidence that the Department has engaged in a pattern or practice of racial discrimination in the administration of the Federal death penalty." USAM 9-10.050. The review committee thereafter meets to finalize its recommendation to the Attorney General, to whom all submitted materials are forwarded. The Attorney General makes a final decision as to whether a capital sentence should be sought in the case.
PART II: STUDY OF THE SYSTEM

On September 12, 2000, the Department released the results of a survey of the federal death penalty system. The findings from that survey are set out exhaustively in the Sept. 12 report and its accompanying statistical tables, and need not be repeated here in detail. The central findings regarding racial and ethnic proportions were as follows:

Second, recommendations and decisions to seek the death penalty were less likely at each stage of the process for Black and Hispanic defendants than for White defendants. In other words, United States Attorneys recommended the death penalty in smaller proportions of the submitted cases involving Black or Hispanic defendants than in those involving White defendants; the Attorney General's capital case review committee likewise recommended the death penalty in smaller proportions of the submitted cases involving Black or Hispanic defendants than in those involving White defendants; and the Attorney General made a decision to seek the death penalty in smaller proportions of the submitted cases involving Black or Hispanic defendants than in those involving White defendants. (Sept. 12 report at 7.)

Attorney General Reno did not believe that the findings of this study showed that racial or ethnic bias affected the decision-making process in federal death penalty cases. However, the available information was generally limited to the information submitted by U.S. Attorney offices in connection with the capital case review procedure. She accordingly directed that further study be carried out to illuminate any statistical disparities at other stages of the process, such as decisions whether to pursue federal rather than state charges in potentially capital cases.

The follow-up to the Sept. 12 report outlined by Attorney General Reno included solicitation of external research proposals, submission by the United States Attorneys within 60 days of data about potential capital cases in their offices that were not submitted to the Department's capital case review process, and other examination of factors used to decide which homicide cases are taken into the federal system when there is joint state and federal jurisdiction.

With respect to the potential solicitation of external research proposals, the National Institute of Justice held a meeting with researchers and practitioners on January 10, 2001. The discussion at the meeting indicated that attempting to obtain a comprehensive understanding of the statistical proportions found in federal capital (and potential capital) cases would entail a highly complex, multi-year research initiative. It further indicated that even if such a study were carried out, it could not be expected to yield definitive answers concerning the reasons for disparities in federal death penalty cases. It was also clear that this approach could not produce policy-relevant findings within the time frame specified by President Clinton, or in time to inform decisions about carrying out death sentences whose execution dates were approaching.

It was possible, however, to carry out promptly the more defined tasks identified by the President and the Attorney General. The U.S. Attorneys submitted information concerning cases in their offices in which the facts would have supported a capital charge, but which were not charged as capital crimes and submitted to the departmental review procedure. Analysis of this additional information produced findings which were similar in character to the findings of the Sept. 12 report.

Within the broader pool of potential capital cases, the racial and ethnic proportions were again found to be different from those in the general population. This broader pool of cases involved 973 defendants, in comparison with the 682 defendants in the cases submitted to the departmental review procedure.⁽¹⁰⁾ Of the 973 defendants in the broader class, 17% (166) were White, 42% (408) were Black, and 36% (350) were Hispanic.⁽¹¹⁾

It was also possible to carry out within a reasonable time frame additional consultation concerning the reasons for the exercise of federal jurisdiction in potential capital cases. The information obtained indicates that the racial and ethnic proportions found in the general pool of potential federal capital cases, and differences among the racial and ethnic proportions in different districts, result from non-invidious causes. Some of these causes are general in nature, and apply to the findings in many districts; others reflect unique conditions in particular districts and the relationship between federal and state authorities in those districts. Part III of this report provides more specific analysis of this information.
PART III: ANALYSIS OF THE DATA

As discussed in Part I of this report, a wide range of protections and remedies exist, both legal and administrative, to guard against any influence of racial or ethnic bias in the administration of capital punishment at the federal level. Nor is there anything in the character, training, or background of federal prosecutors that would dispose them to act from such invidious motives. Rather, they are experienced legal professionals whose values and practices are shaped by general societal attitudes and the specific values of the legal system that strongly condemn discrimination based on race or ethnicity.

Given the absence of any reason to expect a priori that racial or ethnic bias would play a role in federal capital punishment decisions, the question then becomes whether there is empirical evidence which nevertheless demonstrates that the system is subverted by such bias. The findings of the Sept. 12 report and the further study conducted thereafter do not support such a conclusion. The following analysis considers this issue first in relation to the general pool of potential federal capital cases, and thereafter in relation to the decisions made at subsequent stages of the review process.

In assessing the implications of statistical data as possible evidence of bias or prejudice, it is necessary to distinguish between statistical disparities on the one hand and discrimination on the other. For example, in a federal district that prosecutes a large number of securities fraud cases, a finding that the defendants in these cases are practically all White would not imply that federal prosecutors in these cases are engaging in favoritism to potential Black and Hispanic defendants, or discriminating against White defendants. Rather, it may just be the case that most persons who commit these crimes in the district are White. Account must be taken of the differing incidences of crimes in different demographic groups.

Turning to the area of federal capital cases, it must also be understood that federal criminal jurisdiction is limited, and generally supplementary, in character. The Sept. 12 report (at p. 4) explained:
1. Eastern District of Virginia

In evaluating the data . . . the reader should bear in mind that the vast majority of homicides in the United States, like most violent crimes, are investigated exclusively by local police officers working hand-in-hand with local prosecutors, who file charges against defendants in state courts, either as a capital case or non-capital case. When a homicide is prosecuted federally - either as a capital or non-capital case - it is often because of the availability of certain federal laws or because of a federal initiative to address a particular crime problem. Criminal organizations often operate in multiple jurisdictions, making it difficult for any single local prosecutor to investigate or prosecute a case. Additionally, many states lack the equivalent of the federal witness protection program and the ability to conduct complex long-term investigations using resource intensive investigative techniques such as court-ordered wiretaps and undercover operations.

Apart from these differences in laws and resources, which often affect whether a particular homicide is prosecuted in state or federal court - either as a capital or non-capital case - state and federal law enforcement officials often work cooperatively to maximize their overall ability to prevent and prosecute violent criminal activity in their respective communities. Such cooperation is a central feature of current federal law enforcement policy. In some areas, these cooperative efforts lead to agreements that certain kinds of offenses, particularly violent crimes, will be handled by federal authorities . . . . In some cities, a large number of cases involving multiple murders by drug and other criminal organizations are investigated by joint federal and local task forces and prosecuted federally due to some of the factors cited above, such as the geographic reach of the organization and the availability of a witness protection program.

As discussed in Part II of this report, the proportion of Black and Hispanic defendants in the pool of potential federal capital cases exceeds the proportion of Blacks and Hispanics in the general population. The Department's follow-up study of this issue produced no evidence that this statistical disparity results from bias or prejudice, as opposed to non-invidious factors like those discussed above, which can result in disparities in any part of the criminal justice system. To see concretely how these factors can affect the demographic proportions in federal capital cases, it is helpful to examine more specifically the nature of these cases, and the reasons for the exercise of federal jurisdiction, in a number of particular districts.
Drug-related killings
In the 1995-2000 period considered by the Sept. 12 report, the U.S. Attorney office for the Eastern District of Virginia charged capital offenses in 66 cases and submitted these cases to the Department's capital case review procedure. Of these 66 defendants, 5 were White, 59 were Black, and 2 were Hispanic.

While the defendants in these cases were predominantly Black, analysis of the underlying grounds for federal prosecution shows only legitimate, non-invidious reasons for the district's actions. Of the 66 capital cases submitted by this district, 51% involved drug-related murders, 29% involved killings committed by inmates at the Lorton correctional facility, and 20% involved a mixed bag of offenses as discussed below. The reasons for the exercise of federal jurisdiction in these cases were as follows:

Most of the capital charges in the Eastern District of Virginia (51%) resulted from drug cases. The cases in this category originated primarily from large-scale trafficking organizations involving multiple murders, as indicated by the fact that 70% of them were charged under the provision defining the Continuing Criminal Enterprise (CCE) drug offense, 21 U.S.C. 848, or as conspiracies in relation to a CCE murder; 12% were charged as murder in aid of racketeering under 18 U.S.C. 1959, or under both 18 U.S.C. 1959 and 21 U.S.C. 848; and 18% were charged under 18 U.S.C. 924(j) (causing death through use of a firearm during drug offense). Most of these drug-related murder cases arose from federal, state, and local task forces.

The defendants in these cases are not White because the members of the drug gangs that engage in large-scale trafficking in the Eastern District of Virginia are not White. However, the large federal role in that district in prosecuting serious drug crimes generally, and potentially capital drug-related homicides in particular, has nothing to do with the race of the defendants. Rather, the factors which have contributed to this assumption of federal responsibility include the following:

First, Virginia prosecutors have had little ability to use state grand juries in investigations. The availability of compulsory process to federal prosecutors through the use of federal grand juries has provided a critical advantage in the investigation of ongoing drug conspiracies, which account for most of the drug-related murders in the district.

Second, until recently, each defendant was entitled to a separate trial in the state system. This is a severe disadvantage in prosecuting cases involving multiple defendants, whose joint activities may have resulted in numerous killings. There is no comparable problem in federal prosecutions, in which it is usually possible to secure a joint trial for defendants who have engaged in this type of coordinated criminal activity.
Cases from Lorton
Third, Virginia has many prosecution units. The Eastern District of Virginia has within its boundaries 43 counties, each with its own Commonwealth's Attorney, and 21 independent cities, most of which also have their own Commonwealth's Attorneys. The state Attorney General does not have general prosecution authority throughout the state. Thus, in the state system, defendants who commit crimes in more than one jurisdiction must be prosecuted in each jurisdiction separately. Again, this is a serious disadvantage in attempting to prosecute drug trafficking activity, and related violence and homicides, which cut across jurisdictional boundaries within the state. The U.S. Attorney, in contrast, can prosecute a defendant or defendants in a single trial for activities committed in the various state jurisdictions which constitute federal crimes.

Fourth, Virginia prosecutors are generally in a less favorable position to prosecute conspiracy cases. Their offices often have limited resources and cannot devote the manpower to investigate ongoing conspiracies, particularly when the organizations permeate numerous other jurisdictions as well. Task forces including both law enforcement officers and prosecutors make the most sense in these cases. Combining the abilities of local law enforcement officers and the prosecution advantages of the federal system, it is possible to make many serious cases which might otherwise go unsolved or resist successful prosecution.

As a result of recent reforms, persons sentenced to imprisonment for the commission of felonies under the District of Columbia Code will serve their sentences in the regular federal prison system. However, prior to these reforms, incarcerated D.C. felons were housed in a separate prison located in Lorton, Virginia. The Eastern District of Virginia was responsible for prosecuting killings committed by inmates at that institution, which accounted for 29% of the cases it submitted to the Department's capital case review procedure. Not surprisingly, the incarcerated felon population deriving from a majority Black urban jurisdiction (D.C.) has been predominantly Black, and the defendants in potential capital cases arising from killings by inmates in that incarcerated felon population have been Black.
Other cases

The remaining 20% of the cases submitted by the Eastern District of Virginia involved five espionage defendants, two bank robbery defendants, two kidnapping defendants, three carjacking defendants, and one murder in a federal enclave. The five espionage defendants were White. Their race, of course, had nothing to do with the decision to prosecute these cases federally; espionage, by its nature, is a crime that only the federal government prosecutes. Likewise, the murder in a federal enclave implicated obvious federal interests.
2. District of Puerto Rico
The carjacking case involved three members of the same family who hijacked trucks and killed the drivers. They committed their crimes in more than one state and in more than one local jurisdiction within Virginia. Federal prosecution made possible a joint trial of these crimes, which otherwise would have had to be tried separately in various local Virginia jurisdictions.

The bank robbery was a complicated case in which the need to utilize the powers of a federal grand jury made federal prosecution appropriate. The two kidnapping cases arose from abduction-murders in which state prosecution was not an option, because it was not provable which particular states the victims were in at the time the kidnappers killed them. This is not an impediment to a successful federal kidnapping prosecution.

The District of Puerto Rico submitted 72 cases, all involving Hispanic defendants, to the Department's capital case review procedure. The District of Puerto Rico has an unusually large number of homicide cases because the U.S. Attorney has agreed with the local authorities that the U.S. Attorney's office will prosecute fatal carjacking cases. The obvious reason the defendants in these cases were Hispanic is that the population of Puerto Rico is generally Hispanic.

3. District of Columbia

The United States Attorney's office for the District of Columbia submitted cases involving 23 defendants to the Department's capital case review procedure, of whom 22 were Black. Most of these cases (66%) involved defendants charged in multi-defendant racketeering (RICO) and Continuing Criminal Enterprise (CCE) drug offense cases. Of the remainder, 13% involved federal carjacking charges, 13% involved killing a federal witness, 4% involved killing a law enforcement officer, and 4% involved terrorism.

The U.S. Attorney's office is responsible for the prosecution of local crimes under the District of Columbia Code, as well as being responsible for the prosecution of federal offenses in D.C. Hence, in contrast to other districts, the U.S. Attorney office in D.C. has jurisdiction to prosecute crimes occurring in its geographic area regardless of whether it brings federal charges. The choice for that office in murder cases is between pursuing a murder prosecution under local D.C. law in the D.C. Superior Court, or bringing a federal charge and prosecuting the case in federal district court.

Because of D.C.'s demographics, cases involving serious violent crimes - whether prosecuted under federal law or local D.C. law - usually involve Black defendants. Where the choice is made to proceed in federal court, the decision has nothing to do with the defendant's race or ethnicity. Rather, it depends on the availability of a federal offense that applies to the criminal conduct, and whether there are prosecutorial advantages in litigating in one forum rather than the other.

For example, as noted above, most of the cases from D.C. submitted to the review procedure involved drug-related killings. The U.S. Attorney's office has frequently brought federal prosecutions involving drug trafficking groups and street gangs as a valuable alternative to single-incident murder cases in the local Superior Court for several reasons:

First, the federal courts are better suited and better equipped to handle multi-defendant complex criminal prosecutions than the local Superior Court. The federal district court in D.C. has extensive experience in handling these complex cases, which raise significant witness and jury security issues.

Second, use of the federal RICO and CCE offenses makes it possible to join together evidence relating to drug trafficking, murders, and other violence in a single case. This is a major advantage in comparison with single-incident prosecution of murders in the local Superior Court.
4. Central District of California
Third, the Federal Rules of Evidence are superior from a prosecutorial standpoint to the evidence rules applied in Superior Court proceedings - for example, in relation to the admissibility of evidence of the defendant's commission of similar or related crimes on other occasions.

Fourth, federal RICO/CCE prosecutions allow the government to: (1) introduce evidence of acts committed by violent defendants when they were juveniles, (2) avoid statutes of limitations issues for crimes other than murders (e.g., assaults and drug trafficking), (3) avoid venue problems in prosecuting multijurisdictional criminal operations, and (4) achieve consolidated trials of related criminal activity where severance would more likely occur in a Superior Court prosecution.

The Central District of California submitted cases involving 15 defendants to the Department's capital case review procedure, including three White defendants, four Black defendants, and six Hispanic defendants. The 40% (six out of 15) figure for Hispanics in this district was somewhat greater than the proportion of Hispanic defendants in submitted cases generally (29%). However, the proportion of Hispanic defendants in federal capital cases in this district is increased by federal prosecution of members of the "Mexican Mafia." This prison gang has been a serious problem in the California correctional system. The problem can be ameliorated through federal prosecution, which results in the defendants serving their sentences in the federal prison system.

Thus, the causes of the exercise of federal jurisdiction in potential capital cases are varied. Some, such as a federal enforcement emphasis on the prosecution of drug enterprises and related violence, are common to many districts. Others, such as the Eastern District of Virginia's jurisdiction over killings by inmates in D.C.'s prison, and the agreement concerning carjacking prosecutions in the District of Puerto Rico, are specific to particular districts. The common feature of these causes is that they may result in racial and ethnic disparities in federal capital cases when coupled with the demographics of crime in the areas where federal jurisdiction is exercised, but they do not involve any influence of racial or ethnic bias on federal prosecutorial decisions. Rather, as with the division of federal and state responsibility in other areas of prosecution and law enforcement, they reflect non-invidious decisions based on relative federal and state capacities, and cooperative arrangements developed with state and local authorities that take account of those capacities.

A final question in this area is that of "geographic" or "regional" disparity in federal capital cases, which was also identified as a matter meriting further examination in the follow-up to the Sept.12 study. This question, which relates to the fact that some districts have generated larger numbers of potential capital cases than others, can be taken in two ways:

Taken in one way, the reference to "geographic" disparities may reflect a concern that such disparities result from racial or ethnic bias. Articulated more fully, the thought would be that U.S. Attorney personnel in some districts, for reasons of racial or ethnic bias, may have a particular desire to secure the death penalty for minority defendants. Hence, they exercise federal jurisdiction to prosecute more potentially capital cases involving such defendants, so as to be able to convict them federally for capital crimes and secure their execution. This might account for the unusually large number of capital case submissions from some districts.

If this were actually what was going on, one would expect the districts with unusually large numbers of capital case submissions to seek the death penalty with special vigor in relation to minority defendants. The data do not support this notion. For example, aside from the Eastern District of Virginia and the District of Puerto Rico, which have been discussed above, the districts with the largest number of capital case submissions have been the District of Maryland, the Eastern District of New York, and the Southern District of New York. The figures from these districts are as follows:

The District of Maryland charged capital crimes and submitted to the Department's review procedure cases involving 41 defendants, of whom 36 were Black. However, it recommended the death penalty for only five of the 36, a proportion of 14%. This is below the national proportion of 25% for recommendations by U.S. Attorneys that the death penalty be sought for Black defendants in submitted cases.

The Eastern District of New York submitted cases involving 58 defendants to the review procedure, of whom 19 were White, 20 were Black, 12 were Hispanic, and 7 were in the "Other" category. It only recommended the death penalty for one of the Black defendants, and for none of the Hispanic defendants.

The Southern District of New York submitted cases involving 50 defendants to the review procedure, involving 4 White defendants, 17 Black defendants, 28 Hispanic defendants, and 1 "Other" defendant. This was a considerably higher proportion of Hispanic defendants than the national norm - but the district recommended the death penalty for none of them. The district recommended the death penalty for 5 of the 17 Black defendants, a proportion of 29%, which differed little from the national norm of 25%.

B. SUBSEQUENT DECISIONAL STAGES
A second way of taking the reference to "geographic" disparities would be as reflecting a sense that it is intrinsically necessary or desirable for capital cases to be distributed in some proportionate manner among the various districts, independent of any concern about racial or ethnic bias. In this sense, however, geographic "disparities" are neither avoidable nor undesirable. As this report has explained at length, the federal criminal jurisdiction is supplementary and complementary to state and local law enforcement jurisdiction. This necessarily results in large differences among the districts in enforcement priorities and in the division of responsibilities with their state and local counterparts. For example, in districts which accord a high priority to federal prosecution of violent drug gangs, that focus tends to generate a high volume of federal prosecutions involving drug-related killings. Other districts may not prioritize such prosecutions to the same degree because (for example) drugs are generally less of a problem in their areas, state and local authorities have relatively good capacities for dealing with such crimes, or there is relatively little advantage in federal, as opposed to state or local, prosecution in these cases.

There is nothing illegitimate about a district focusing on the actual needs of the geographic area for which it is responsible in decisions about the exercise of federal jurisdiction. Rather, a U.S. Attorney who failed to do so would be derelict in his or her basic responsibilities. To the extent that this results in varying numbers of federal capital cases among the districts, it is no different than, nor any more objectionable than, the "disparities" among the districts which occur equally in non-capital cases.

With respect to recommendations and decisions by the Attorney General's review committee and by the Attorney General, there is little to add to the discussion in Part II of this report. Decisions to seek the death penalty have been recommended and approved in lower proportions of cases involving Black or Hispanic defendants than White defendants. There is nothing in these findings which suggests that the system involves racial or ethnic bias against minorities. As discussed above, the review process is designed to shield the review committee members and the Attorney General as far as possible from information concerning race and ethnicity in the submitted cases. What decisionmakers do not know about cannot influence their decisions.

Analysis of the actions of the U.S. Attorneys' offices is somewhat more complex, because they make a larger number of decisions which may affect the capital or non-capital treatment of their cases. However, the conclusion is the same. The U.S. Attorney offices have charged capital offenses and submitted cases to the review procedure in lower proportions of potential capital cases involving Black or Hispanic defendants than White defendants. They have also recommended seeking the death penalty in the submitted cases in lower proportions of cases involving Black or Hispanic defendants than White defendants. The racial and ethnic proportions in their recommendations have been similar to the racial and ethnic proportions in the recommendations and decisions by the review committee and the Attorney General. (Sept. 12 report at 7, 38-39.)

Following a decision by the Attorney General to seek the death penalty, a capital sentence may nevertheless not be sought because the U.S. Attorney office subsequently reaches a plea agreement to a non-capital charge with the defendant.⁽¹⁶⁾ This has occurred for 48% of the White defendants, 25% of the Black defendants, and 28% of the Hispanic defendants in cases where the Attorney General approved the death penalty. (Sept. 12 report at 31-32).⁽¹⁷⁾ While White defendants superficially fared better at this stage, inferring that these disparities resulted from racial or ethnic bias on the part of the U.S. Attorney offices would be unwarranted for a number of reasons:

First, in contrast to a recommendation for or against seeking the death penalty, the decision about pleas is not under the control of the U.S. Attorney's office. It takes two to make a plea agreement. Inferring bias from disparities in such agreements would not be justified unless non-invidious causes could be excluded, including possible differences in the inclination of defendants from different groups to seek or accept plea agreements. Indeed, since the actions of U.S. Attorney offices at all earlier stages of the process carry no suggestion of bias against racial or ethnic minorities - but rather involve seeking the death penalty with less frequency in cases involving Black or Hispanic defendants - it would be an odd assumption that such bias suddenly springs into existence at the end of the process, and becomes an operative factor at that point in decisions about non-capital pleas.

Second, the findings of the Department's study would not be suggestive of bias by the U.S. Attorneys' offices, even if one were to impute to those offices complete responsibility for the occurrence or nonoccurrence of pleas at the final stage of the process. Consider the class of potential capital cases in which a U.S. Attorney office concludes, either initially or at some point in the process, that a capital sentence should not be sought. The means the office potentially has at its disposal to achieve the desired non-capital treatment of the case include: (1) refraining from a capital charge and review procedure submission in the first place, (2) submitting the case to the review procedure with a recommendation against the death penalty and persuading the Attorney General to accept this recommendation, (3) reaching a non-capital plea agreement with the defendant following the review procedure submission of the case but prior to a decision by the Attorney General whether to seek the death penalty, or (4) reaching a non-capital plea agreement with the defendant subsequent to a decision by the Attorney General to seek the death penalty.

These methods will not necessarily be successful to the same degree at all stages of the process in achieving the desired result (i.e., non-capital treatment of the case) in relation to defendants from different population groups. To the extent that the desired result is not achieved at earlier stages in the process, there may be more motivation to use the methods available at later stages to secure a non-capital disposition. Given the possibility of such trade-offs between actions at different stages, the racial and ethnic proportions at the final plea stage are uninformative as possible indications of bias by the U.S. Attorney offices. Rather, one must look at what happens in the process as a whole.

This point can be assessed in quantitative terms by aggregating the effects of the various actions noted above that the U.S. Attorney offices can take to secure non-capital treatment of a case - refraining at the start from a capital charge and review procedure submission, submitting the case and successfully recommending against the death penalty, reaching a non-capital plea after submission but before an Attorney General decision, or reaching a non-capital plea after an Attorney General decision to seek the death penalty. When the figures are toted up, one finds that these actions of the U.S. Attorney offices secured non-capital treatment for 74% of the White defendants, 81% of the Black defendants, and 86% of the Hispanic defendants, in potential capital cases.⁽¹⁸⁾ As with the other findings of the Department's study, there is nothing in these figures which suggests possible bias against minority defendants. Rather, the U.S. Attorney offices have exercised their powers with greater frequency to avoid death penalty prosecutions of minority defendants.⁽¹⁹⁾
PART IV: PROTOCOL REVISION

While the Department's study of its death penalty decision-making processes has found no evidence of bias against racial or ethnic minorities, the study has indicated that certain modifications of the capital case review procedure are warranted to promote public confidence in the fairness of the process and to improve its efficiency. Some of these changes effectively broaden the scope of the process, including submission of information concerning a larger class of cases by the U.S. Attorney offices. Other changes would simplify and abbreviate the process in cases where the decision is against seeking a capital sentence.

Under the existing protocol, U.S. Attorneys submit to the capital case review procedure only cases in which an offense is being charged for which the death penalty is a legally authorized sanction. This limited the information that was available for the Sept. 12 report. Information was subsequently obtained from the U.S. Attorneys' offices concerning a broader class of potential capital cases, but a special, ad hoc effort was necessary to do so.

The Department has concluded that information of this type should regularly be available. This should help to maintain public confidence in the system by making more complete racial and ethnic data available for both actual and potential federal capital cases. The amendment to the protocol will specifically require that, where a United States Attorney has obtained an indictment charging a capital offense or conduct that could be charged as a capital offense, the United States Attorney must fill out and submit a death penalty evaluation form, even if the United States Attorney does not intend to request authorization to seek the death penalty. These forms will include (among other information) gender, race, and ethnicity information for defendants and victims, the charges against the defendant, and the reasons the United States Attorney decided not to seek the death penalty or charge a capital offense.

The amendments to the protocol will also include two other changes in the direction of increased centralization:

First, in cases where the Attorney General approves seeking a capital sentence, the United States Attorney office will be required to submit the notice of intention to seek the death penalty it proposes to file in the case to the Criminal Division's Capital Case Unit. As discussed in Part I of this report, the notice includes a specification of the aggravating factors that the government intends to prove as the basis for imposing a capital sentence. Review by the Criminal Division will ensure consistent application of the statutory and nonstatutory aggravating factors in federal death penalty proceedings.

Second, where the Attorney General approves seeking a capital sentence, Attorney General approval will also be required for subsequent decisions to refrain from pursuing a capital sentence in the case. Under the current protocol, a United States Attorney can effectively negate a decision by the Attorney General to seek a capital sentence by subsequently reaching a plea agreement with the defendant to a noncapital offense. As in other areas, however, if subsequent developments show grounds for reconsidering a decision by the Attorney General, the proper recourse is to advise the Attorney General of the changed circumstances. The revised protocol will require this approach.

The revised protocol will maintain a uniform requirement that the approval of the Attorney General be obtained both for decisions to seek a capital sentence and for decisions not to seek a capital sentence. The United States Attorneys will be required to submit information concerning cases involving capital charges, regardless of their recommendations concerning the sentence. However, an expedited and simplified decisional process - not requiring the participation of defense counsel - will be authorized in cases in which the U.S. Attorney does not wish to seek a capital sentence. The full-dress review process will be reserved for cases in which: (1) the United States Attorney does wish to seek the death penalty, or (2) the reviewers decline to accept the United States Attorney's recommendation against seeking the death penalty on the basis of the abbreviated review process.

This modification of the protocol will produce a more efficient process with no loss of fairness. The data of the Sept. 12 report showed that the United States Attorneys recommended against seeking the death penalty for 494 out of 682 defendants in submitted cases. (Sept. 12 report at 12.) In such cases, notwithstanding the negative recommendation, the full process must be run through under the current system. This includes submission of information concerning the case and supporting materials by the U.S. Attorney; preparation of an initial analysis and recommendation by the Criminal Division's Capital Case Unit; consideration by the capital case review committee, including hearing argument from defense counsel and U.S. Attorney personnel; and further review and a final decision by the Attorney General. In the vast majority of these cases - 94% - the Attorney General concurs in the U.S. Attorney's recommendation not to seek the death penalty. (Sept. 12 report at 40-41.) Hence, the normal result is no change from what the U.S. Attorney recommended.

The revised protocol will make it possible to focus the review procedure's resources more fully on cases in which the U.S. Attorney does propose to seek the death penalty, while providing a quicker and less burdensome process for reaching a final decision against seeking a capital sentence where the U.S. Attorney recommends against the death penalty. Defense resources will be conserved by not regularly requiring a presentation to the review committee by defense counsel where the U.S. Attorney office is not seeking a capital sentence. In addition, the costs of appointing a second lawyer for the defendant - as required by 18 U.S.C. 3005 for death penalty cases - will more frequently be avoided because the abbreviated process will produce quicker final decisions by the Department not to seek a capital sentence.

The Attorney General will, of course, retain legal authority as head of the Justice Department to determine in an exceptional case that the death penalty is an appropriate punishment, notwithstanding the United States Attorney's view that it should not be pursued. However, if the Attorney General declines to accept the United States Attorney's recommendation against a capital sentence on the basis of the abbreviated review process, the full review procedure will then be employed, including providing defense counsel an opportunity to be heard by the review committee. Hence, the protocol revision will increase the general efficiency of the process, while sacrificing no safeguard of fairness for defendants in cases where the Department may ultimately decide to seek the death penalty.

1. The capital sentencing procedures for most federal crimes appear in 18 U.S.C. 3591ff. Separate procedures of a similar character for certain drug-related capital offenses are set forth in 21 U.S.C. 848(e)-(r). Back

2. See McCleskey v. Kemp, 481 U.S. 279, 309 & n.30 (1987). Back

3. See id.; Batson v. Kentucky, 476 U.S. 79 (1986); Georgia v. McCollum, 505 U.S. 42 (1992). Back

4. Defense counsel, however, choose in some cases to provide participants in the review process with information concerning a defendant's race or ethnicity. Back

5. Except where otherwise indicated, the figures in this report relate to the operation of the Department's current capital case review procedure from its establishment in January 1995 until July 2000, which was the cutoff date for data considered in the Sept. 12 report. Defendants are classified for purposes of discussion and analysis as White, Black, or Hispanic. "Hispanic" includes Hispanic individuals regardless of race. It can be estimated that about 90% of the defendants in the "Hispanic" category would be characterized as White in racial terms. See Sept. 12 report at T-xvi & n.2. The Department's data also places some defendants in an "Other" category. This category is generally not discussed separately in this report because it combines individuals from several different groups - Asian, Pacific Islander, Native American, Aleut, Indian, or unknown - and the numbers involved are small. The "Other" defendants were 29 out of the 682 defendants considered under the review procedure, comprising 4% of the total. Back

6. The figures in the accompanying textual discussion relate to the period 1995-2000, during which the current statutes and capital case review procedure were in effect. In the period 1988-1994, the federal death penalty was only available for certain drug-related killings under 21 U.S.C. 848(e), and U.S. Attorneys submitted for the Attorney General's review only cases in which they recommended seeking the death penalty. See Sept. 12 report at 1-2. The cases so submitted involved 52 defendants, who were 13% (7) White, 75% (39) Black, 10% (5) Hispanic, and 2% (1) "Other." The Attorney General approved seeking the death penalty for 100% of the White defendants (7 out of 7), 87% of the Black defendants (34 out of 39), and 100% of the Hispanic defendants (5 out of 5). See Sept. 12 report at 6-7, 23-24. Back

7. Attorney General's Remarks Regarding the Federal Death Penalty Study (Dept. of Justice Sept. 12, 2000); Press Conference with Attorney General Reno and Deputy Attorney General Holder, Topic: The Death Penalty (Sept. 12, 2000). Back

8. See id. Back

9. Statement by the President: Staying the Execution of Juan Raul Garcia (The White House Dec. 7, 2000). Back

10. The supplementary data submitted by the U.S. Attorney offices included "A" data and "C" data. The "A" data was data on 231 cases (beyond the 682 submitted to the review procedure) that the offices provided in response to a directive to submit information concerning: (1) any cases that should have been, but were not, submitted to the capital case review procedure, (2) cases exempted from submission because the defendant pled to a noncapital offense, and (3) cases that could have been brought as death eligible cases but were not. When added to the 682 defendants in submitted cases, the "A" data produced a broader class of 913 defendants who were 17% (158) White, 42% (387) Black, 37% (334) Hispanic, and 4% (34) "Other." The "C" data was data on additional cases which, according to the districts, had gone or were going through the review process, or involved fugitives. Adding the "C" cases as well as the "A" cases produces a universe of 973 defendants in potential capital cases, as indicated in the accompanying text. Back

11. The remaining 5% of defendants (49) in the augmented class were in the "Other" category. Back

12. The numbers of defendants whose cases were submitted to the review procedure were 134 out of 166 White defendants, 324 out of 408 Black defendants, and 195 out of 350 Hispanic defendants. See Sept. 12 report at 6. If only "A" cases are included in defining the universe of potential capital cases, the corresponding proportions of defendants in potential capital cases who were capitally charged and submitted to the review procedure are as follows: 85% of White defendants (134 out of 158), 84% of Black defendants (324 out of 387), and 58% of Hispanic defendants (195 out of 334). Back

13. The corresponding figures if "A" cases but not "C" are included in defining the universe of potential capital cases are as follows: 28% of White defendants (44 out of 158), 18% of Black defendants (71 out of 387), and 10% of Hispanic defendants (32 out of 334). Back

14. See, e.g., Bureau of Justice Statistics, Homicide Trends in the United States - Trends by Race, www.ojp.usdoj.gov/bjs/homicide/race.htm; Bureau of Justice Statistics, Violent Victimization and Race, 1993-98, at 2, 4, 6, 10 (Mar. 2001); Bureau of Justice Statistics, Correctional Populations in the United States, 1997, at iii, 4-5 (Nov. 2000). Back

15. The figures for submissions and recommendations by these districts, and the national average of 25% for recommendations to seek the death penalty in submitted cases involving Black defendants (81 out of 324 defendants), are documented in the Sept. 12 report, Table 5A, at T-14 to T-17. Back

16. The U.S. Attorneys currently have discretion to make such plea agreements. Under the revised protocol discussed in Part IV of this report, the Attorney General's approval will be required for a non-capital plea agreement subsequent to a decision by the Attorney General to seek a capital sentence. Back

17. The U.S. Attorney offices reached subsequent non-capital plea agreements with 51 out of the 159 defendants for whom the Attorney General authorized seeking the death penalty. See Sept. 12 report at 31. There were also 11 cases, almost all involving minority defendants, in which the Attorney General subsequently reversed her decision to seek the death penalty. See Sept. 12 report at 33, Table 3A at T-6 (reconsideration of decision to seek the death penalty for 1 White defendant, 3 Black defendants, 5 Hispanic defendants, and 2 "Other" defendants). In addition, in relation to 4 defendants (1 Black and 3 Hispanic), the death penalty was not pursued through trial because of dismissals or other judicial action. See id. Back

18. For example, the supplementary data submitted by the U.S. Attorney offices showed 166 White defendants in potential capital cases. Figures documented in the Sept. 12 report at 6, 41, 31-32 show the following: In relation to 32 of these defendants, the U.S. Attorney offices refrained from a capital charge and review procedure submission. In relation to 62 of these defendants, the U.S. Attorney offices submitted their cases to the review procedure with a recommendation against the death penalty, and the Attorney General concurred. In relation to 8 of these defendants, U.S. Attorney offices reached a non-capital plea agreement with the defendant following submission to the review procedure but before an Attorney General decision about the death penalty. In relation to 21 of these defendants, U.S. Attorney offices reached a non-capital plea agreement with the defendant after an Attorney General decision to seek the death penalty. Summing 32, 62, 8, and 21 gives 123 White defendants for whom the U.S. Attorney office successfully sought and secured non-capital treatment of their cases. This is 74% of the 166 White defendants in potential capital cases. Carrying out the same computation process for Black and Hispanic defendants yields the figures of 81% and 86% appearing in the text.

These figures include both "A" and "C" cases in defining the universe of potential capital cases. If the starting point is the somewhat smaller universe of potential capital cases which includes "A" cases but not "C" cases, the corresponding figures (by the same process of computation) are that the U.S. Attorney offices successfully avoided capital treatment for 73% of White defendants, 80% of Black defendants, and 85% of Hispanic defendants. Back

19. The Sept. 12 report (at pp. 30-31) noted that focusing on plea agreements which occur after the Attorney General authorizes seeking the death penalty is potentially misleading, because plea agreements that foreclose a capital sentence can also occur at earlier stages of the process, including prior to indictment and review procedure submission, and during the pendency of cases in the review process. Statistical information was not available at the time concerning cases which were not submitted to the review procedure for such reasons as pre-indictment plea agreements to non-capital charges. The supplementary data submitted by the U.S. Attorney offices following the Sept. 12 report provided information on the broader universe of potential capital cases in the U.S. Attorney offices, making possible the accompanying textual discussion's more complete assessment of the treatment of defendants from different population groups. Back

20. Specifically, between the initial revival of the federal death penalty in 1988 and the July 2000 endpoint for data considered in the Sept. 12 report, juries convicted defendants of capital offenses in 57 out of 62 cases in which the government sought the death penalty. Where the defendant was convicted of a capital offense, the jury returned a death penalty verdict for 6 out of 14 White defendants, 16 out of 33 Black defendants, and 3 out of 6 Hispanic defendants. (Sept. 12 report at 32-34.) Back

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The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review June 6, 2001 THE FEDERAL DEATH PENALTY SYSTEM: Supplementary Data, Analysis and Revised Protocols for Capital Case Review U.S. Department of Justice Washington, D.C.

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Read CNN's Death Penalty Fast Facts to learn more about capital punishment in the United States.

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About 2000 men, women, and teenagers currently wait on America's "death row." Their time grows shorter as federal and state courts increasingly ratify death penalty laws, allowing executions to proceed at an accelerated rate. It's unlikely that any of these executions will make the front page, having become more or less a matter of routine in the last decade. Indeed, recent public opinion polls show a wide margin of support for the death penalty. But human rights advocates and civil libertarians continue to decry the immorality of state-sanctioned killing in the U.S., the only western industrialized country that continues to use the death penalty. Is capital punishment moral?

Capital punishment is often defended on the grounds that society has a moral obligation to protect the safety and welfare of its citizens. Murderers threaten this safety and welfare. Only by putting murderers to death can society ensure that convicted killers do not kill again.

Second, those favoring capital punishment contend that society should support those practices that will bring about the greatest balance of good over evil, and capital punishment is one such practice. Capital punishment benefits society because it may deter violent crime. While it is difficult to produce direct evidence to support this claim since, by definition, those who are deterred by the death penalty do not commit murders, common sense tells us that if people know that they will die if they perform a certain act, they will be unwilling to perform that act.

If the threat of death has, in fact, stayed the hand of many a would be murderer, and we abolish the death penalty, we will sacrifice the lives of many innocent victims whose murders could have been deterred. But if, in fact, the death penalty does not deter, and we continue to impose it, we have only sacrificed the lives of convicted murderers. Surely it's better for society to take a gamble that the death penalty deters in order to protect the lives of innocent people than to take a gamble that it doesn't deter and thereby protect the lives of murderers, while risking the lives of innocents. If grave risks are to be run, it's better that they be run by the guilty, not the innocent.

Finally, defenders of capital punishment argue that justice demands that those convicted of heinous crimes of murder be sentenced to death. Justice is essentially a matter of ensuring that everyone is treated equally. It is unjust when a criminal deliberately and wrongly inflicts greater losses on others than he or she has to bear. If the losses society imposes on criminals are less than those the criminals imposed on their innocent victims, society would be favoring criminals, allowing them to get away with bearing fewer costs than their victims had to bear. Justice requires that society impose on criminals losses equal to those they imposed on innocent persons. By inflicting death on those who deliberately inflict death on others, the death penalty ensures justice for all.

This requirement that justice be served is not weakened by charges that only the black and the poor receive the death penalty. Any unfair application of the death penalty is the basis for extending its application, not abolishing it. If an employer discriminates in hiring workers, do we demand that jobs be taken from the deserving who were hired or that jobs be abolished altogether? Likewise, if our criminal justice system discriminates in applying the death penalty so that some do not get their deserved punishment, it's no reason to give Iesser punishments to murderers who deserved the death penalty and got it. Some justice, however unequal, is better than no justice, however equal. To ensure justice and equality, we must work to improve our system so that everyone who deserves the death penalty gets it.

The case against capital punishment is often made on the basis that society has a moral obligation to protect human life, not take it. The taking of human life is permissible only if it is a necessary condition to achieving the greatest balance of good over evil for everyone involved. Given the value we place on life and our obligation to minimize suffering and pain whenever possible, if a less severe alternative to the death penalty exists which would accomplish the same goal, we are duty-bound to reject the death penalty in favor of the less severe alternative.

There is no evidence to support the claim that the death penalty is a more effective deterrent of violent crime than, say, life imprisonment. In fact, statistical studies that have compared the murder rates of jurisdictions with and without the death penalty have shown that the rate of murder is not related to whether the death penalty is in force: There are as many murders committed in jurisdictions with the death penalty as in those without. Unless it can be demonstrated that the death penalty, and the death penalty alone, does in fact deter crimes of murder, we are obligated to refrain from imposing it when other alternatives exist.

Further, the death penalty is not necessary to achieve the benefit of protecting the public from murderers who may strike again. Locking murderers away for life achieves the same goal without requiring us to take yet another life. Nor is the death penalty necessary to ensure that criminals "get what they deserve." Justice does not require us to punish murder by death. It only requires that the gravest crimes receive the severest punishment that our moral principles would allow us to impose.

While it is clear that the death penalty is by no means necessary to achieve certain social benefits, it does, without a doubt, impose grave costs on society. First, the death penalty wastes lives. Many of those sentenced to death could be rehabilitated to live socially productive lives. Carrying out the death penalty destroys any good such persons might have done for society if they had been allowed to live. Furthermore, juries have been known to make mistakes, inflicting the death penalty on innocent people. Had such innocent parties been allowed to live, the wrong done to them might have been corrected and their lives not wasted.

In addition to wasting lives, the death penalty also wastes money. Contrary to conventional wisdom, it's much more costly to execute a person than to imprison them for life. The finality of punishment by death rightly requires that great procedural precautions be taken throughout all stages of death penalty cases to ensure that the chance of error is minimized. As a result, executing a single capital case costs about three times as much as it costs to keep a person in prison for their remaining life expectancy, which is about 40 years.

Finally, the death penalty harms society by cheapening the value of life. Allowing the state to inflict death on certain of its citizens legitimizes the taking of life. The death of anyone, even a convicted killer, diminishes us all. Society has a duty to end this practice which causes such harm, yet produces little in the way of benefits.

Opponents of capital punishment also argue that the death penalty should be abolished because it is unjust. Justice, they claim, requires that all persons be treated equally. And the requirement that justice bc served is all the more rigorous when life and death are at stake. Of 19,000 people who committed willful homicides in the U.S. in 1987, only 293 were sentenced to death. Who are these few being selected to die? They are nearly always poor and disproportionately black. It is not the nature of the crime that determines who goes to death row and who doesn't. People go to death row simply because they have no money to appeal their case, or they have a poor defense, or they lack the funds to being witnesses to courts, or they are members of a political or racial minority.

The death penalty is also unjust because it is sometimes inflicted on innocent people. Since 1900, 350 people have been wrongly convicted of homicide or capital rape. The death penalty makes it impossible to remedy any such mistakes. If, on the other hand, the death penalty is not in force, convicted persons later found to be innocent can be released and compensated for the time they wrongly served in prison.

The case for and the case against the death penalty appeal, in different ways, to the value we place on life and to the value we place on bringing about the greatest balance of good over evil. Each also appeals to our commitment to"justice": Is justice to be served at all costs? Or is our commitment to justice to be one tempered by our commitment to equality and our reverence for life? Indeed, is capital punishment our duty or our doom?

(Capital punishment) is . . . the most premeditated of murders, to which no criminal's deed, however calculated . . can be compared . . . For there to be an 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 mercy for months. Such a monster is not encountered in private life.
--Albert Camus

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 no equality between the crime and the retribution unless the criminal is judicially condemned and put to death.--Immanuel Kant

For further reading:

Hugo Adam Bedau, Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment (Boston: Northeastern University Press, 1987).

Walter Berns, For Capital Punishment (New York: Basic Books, 1979.)

David Bruch, "The Death Penalty: An Exchange," The New Republic, Volume 192 (May 20, 1985), pp. 20-21.

Edward I. Koch, "Death and Justice: How Capital Punishment Affirms Life," The New Republic, Volume 192 (April 15,1985), pp. 13-15.

Ernest van den Haag and John P. Conrad, The Death Penalty: A Debate (New York: Plenum Press, 1983).
This article was originally published in Issues in Ethics - V. 1, N.3 Spring 1988

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Capital Punishment:Our Duty or Our Doom?

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But human rights advocates and civil libertarians continue to decry the immorality of state-sanctioned killing in the U.S. Is capital punishment moral?

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Why support for the death penalty is much higher among white Americans

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Sentencing a person to die is the ultimate punishment. There is no coming back from the permanence of the death penalty. In the U.S., the death penalty is currently authorized by the federal government, the military and 29 states. The primary rationale for using the death penalty is deterrence.

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Since our nation's founding, the government -- colonial, federal, and state -- has punished a varying percentage of arbitrarily-selected murders with the ultimate sanction: death.

More than 14,000 people have been legally executed since colonial times, most of them in the early 20th Century. By the 1930s, as many as 150 people were executed each year. However, public outrage and legal challenges caused the practice to wane. By 1967, capital punishment had virtually halted in the United States, pending the outcome of several court challenges.

In 1972, in Furman v. Georgia, the Supreme Court invalidated hundreds of death sentences, declaring that then existing state laws were applied in an "arbitrary and capricious" manner and, thus, violated the Eighth Amendment's prohibition against cruel and unusual punishment, and the Fourteenth Amendment's guarantees of equal protection of the laws and due process. But in 1976, in Gregg v. Georgia, the Court resuscitated the death penalty: It ruled that the penalty "does not invariably violate the Constitution" if administered in a manner designed to guard against arbitrariness and discrimination. Several states promptly passed or reenacted capital punishment laws.

Today, states have laws authorizing the death penalty, as does the military and the federal government. Several states in the Midwest and Northeast have abolished capital punishment. Alaska and Hawaii have never had the death penalty. The vast majority of executions have taken place in 10 states from the South and over 35% have occurred in Texas. In 2004, the high courts of Kansas and New York struck down their death penalty statutes as unconstitutional and the legislatures have yet to reinstate them.

Today, about 3,350 people are on "death row." Virtually all are poor, a significant number are mentally disabled, more than 40 percent are African American, and a disproportionate number are Native American, Latino, and Asian.

The ACLU believes that, in all circumstances, the death penalty is unconstitutional under the Eighth Amendment. We also believe that the death penalty continues to be applied in an arbitrary and discriminatory manner in violation of the Fourteenth Amendment.

Frequently Asked Questions raised by the public about Capital Punishment
: Doesn't the Death Penalty deter crime, especially murder?
: No, there is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment. States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment show no significant changes in either crime or murder rates.

The death penalty has no deterrent effect. Claims that each execution deters a certain number of murders have been thoroughly discredited by social science research. People commit murders largely in the heat of passion, under the influence of alcohol or drugs, or because they are mentally ill, giving little or no thought to the possible consequences of their acts. The few murderers who plan their crimes beforehand -- for example, professional executioners -- intend and expect to avoid punishment altogether by not getting caught. Some self-destructive individuals may even hope they will be caught and executed.

Death penalty laws falsely convince the public that government has taken effective measures to combat crime and homicide. In reality, such laws do nothing to protect us or our communities from the acts of dangerous criminals.

Several recent studies of public attitudes about crime and punishment found that a majority of Americans support alternatives to capital punishment: When people were presented with the facts about several crimes for which death was a possible punishment, a majority chose life imprisonment without parole as an appropriate alternative to the death penalty (see PA., 2007).

: Isn't the Death Penalty necessary as just retribution for victims' families?
: No. "Reconciliation means accepting you can't undo the murder; but you can decide how you want to live afterwards" ( Murder Victims' Families for Reconciliation, Inc.)

Furthermore, study after study has found serious racial disparities in the charging, sentencing and imposition of the death penalty. People who kill whites are far more likely to receive a death sentence than those whose victims were not white, and blacks who kill whites have the greatest chance of receiving a death sentence.

Minorities are death-sentenced disproportionate to their numbers in the population. This is not primarily because minorities commit more murders, but because they are more often sentenced to death when they do.

Our criminal justice system cannot be made fail-safe because it is run by human beings, who are fallible. Executions of innocent persons occur.

The death penalty is like a lottery, in which fairness always loses. Who gets the death penalty is largely determined, not by the severity of the crime, but by: the race, sex, and economic class of the prisoner and victim; geography -- some states have the death penalty, others do not, within the states that do some counties employ it with great frequency and others do not; the quality of defense counsel and vagaries in the legal process.

Lethal injection is the latest technique, first used in Texas in l982, and now mandated by law in a large majority of states that retain capital punishment. Although this method is defended as more humane, efficient, and inexpensive than others, one federal judge observed that 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." In Texas, there have been three botched injection executions since 1985. In other states, dozens of botched executions have occurred, leading to suspensions of executions in Florida, California, and other states.

In 2006, it took the Florida Department of Corrections 34 minutes to execute inmate Angel Nieves Diaz by way of lethal injection, usually a 15 minute procedure. During the execution, Diaz appeared to be in pain and gasped for air for more than 11 minutes. He was given a rare second dose of lethal chemicals after the execution team observed that the first round did not kill him. A medical examiner reported the second dose was needed because the needles were incorrectly inserted through his veins and into the flesh in his arms. Not only did Diaz die a slow and excruciating death because the drugs were not delivered into his veins properly, his autopsy revealed that he suffered 12 inch chemical burns in his arms by the highly concentrated drugs flowing under his skin.

More recently, an Ohio inmate did not die when his injections were incorrectly administered. Minutes into the execution, he raised his head and said, "It don't work, it don't work."

Eyewitness accounts confirm that execution by lethal injection and other means is often an excruciatingly painful, and always degrading, process that ends in death.

Capital punishment is a barbaric remnant of uncivilized society. It is immoral in principle, and unfair and discriminatory in practice. It assures the execution of some innocent people. As a remedy for crime, it has no purpose and no effect. Capital punishment ought to be abolished now.

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The Death Penalty: Questions and Answers

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Since our nation's founding, the government -- colonial, federal, and state -- has punished a varying percentage of arbitrarily-selected murders with the ultimate sanction: death. More than 14,000 people have been legally executed since colonial times, most of them in the early 20th Century. By the 1930s, as many as 150 people were executed each year.

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Despite the movement toward abolition, many countries have retained capital punishment, and, in fact, some have extended its scope. More than 30 countries have made the importation and possession for sale of certain drugs a capital offense. Iran, Singapore, Malaysia, and the Philippines impose a mandatory death sentence for the possession of relatively small amounts of illegal drugs. In Singapore, which has by far the highest rate of execution per capita of any country, about three-fourths of persons executed in 2000 had been sentenced for drug offenses. Some 20 countries impose the death penalty for various economic crimes, including bribery and corruption of public officials, embezzlement of public funds, currency speculation, and the theft of large sums of money. Sexual offenses of various kinds are punishable by death in about two dozen countries, including most Islamic states. In the early 21st century there were more than 50 capital offenses in China.

Despite the large number of capital offenses in some countries, in most years only about 30 countries carry out executions. In the United States, where roughly 60 percent of the states and the federal government have retained the death penalty, about two-thirds of all executions since 1976 (when new death penalty laws were affirmed by the Supreme Court) have occurred in just six states- Texas, Virginia, Florida, Missouri, Louisiana, and Oklahoma. China was believed to have executed about 1,000 people annually (no reliable statistics are published) until the first decade of the 21st century, when estimates of the number of deaths dropped sharply. Although the number of executions worldwide varies from year to year, some countries-including Belarus, Congo (Kinshasa), Iran, Jordan, Nigeria, Saudi Arabia, Singapore, Taiwan, Vietnam, and Yemen-execute criminals regularly. Japan and India also have retained the death penalty and carry out executions from time to time.

In only a few countries does the law allow for the execution of persons who were minors (under the age of 18) at the time they committed their crime. Most such executions, which are prohibited by the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, have occurred in the United States, which has not ratified the convention and which ratified the covenant with reservations regarding the death penalty. Beginning in the late 1990s, there was considerable debate about whether the death penalty should be imposed on the mentally impaired; much of the controversy concerned practices in the United States, where more than a dozen such executions took place from 1990 to 2001 despite a UN injunction against the practice in 1989. In 2002 and 2005, respectively, the U.S. Supreme Court ruled that the execution of the mentally impaired and those under age 18 was unconstitutional, and in 2014 it held that states could not define such mental impairment as the possession of an IQ ( intelligence quotient) score of 70 or below. The court banned the imposition of the death penalty for rape in 1977 and specifically for child rape in 2008.

In the late 1990s, following a series of cases in which persons convicted of capital crimes and awaiting execution on death row were exonerated on the basis of new evidence-including evidence based on new DNA-testing technology-some U.S. states began to consider moratoriums on the death penalty. In 2000 Illinois Gov. George Ryan ordered such a moratorium, noting that the state had executed 12 people from 1977 to 2000 but that the death sentences of 13 other people had been overturned in the same period. In 2003, on the eve of leaving office, Ryan emptied the state's death row by pardoning 4 people and commuting the death sentences of 167 others. A number of states subsequently abolished capital punishment, including New Jersey (2007), Illinois (2011), Connecticut (2012), and Washington (2018). Further bolstering abolition efforts in the United States was California Gov. Gavin Newsom's announcement of a moratorium on capital punishment in 2019.
The Editors of Encyclopaedia Britannica

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Capital punishment - Capital punishment in the early 21st century

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Capital punishment - Capital punishment - Capital punishment in the early 21st century: Despite the movement toward abolition, many countries have retained capital punishment, and, in fact, some have extended its scope. More than 30 countries have made the importation and possession for sale of certain drugs a capital offense.

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The color of a defendant and victim's skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43 % of total executions since 1976 and 55 % of those currently awaiting execution. A moratorium of the death penalty is necessary to address the blatant prejudice in our application of the death penalty.

The jurisdictions with the highest percentages of minorities on its death row:

U.S. Military (86%)
Colorado (80%)
U.S. Government (77%)
Louisiana (72%)
Pennsylvania (70%)

While white victims account for approximately one-half of all murder victims, 80% of all Capital cases involve white victims. Furthermore, as of October 2002, 12 people have been executed where the defendant was white and the murder victim black, compared with 178 black defendants executed for murders with white victims.

For many years reports from around the country have found that a pervasive racial prejudice in the application of the death penalty exists.

In January 2003, researchers at the University of Maryland concluded in a study commissioned by the Maryland Governor that defendants are much more likely to be sentenced to death if they have killed a white person. Urgent: Maryland residents can take action to send a free fax to their state legislators about a pending death penalty bill!

In August 2001, the New Jersey Supreme Court released a report which also found that the state's death penalty law is more likely to proceed against defendants who kill white victims.

In April 2001, researchers from the University of North Carolina released a study of all homicide cases in North Carolina between 1993 and 1997. The study found that the odds of getting a death sentence increased three and a half times if the victim was white rather than black.

Supreme Court Decisions on Race and the Death Penalty Miller-El v. Cockrell

In the 2003 Supreme Court case Miller-El v. Cockrell, the Supreme Court ruled in his favor that Miller-El should have been given the opportunity to prove that his death sentence was the result of discriminatory jury practices. Such practices included the so called ""Texas shuffle"" to limit or eliminate African American jurors. Other practices included disparate questioning of potential jurors based on race, and a training memo instructing prosecutors on ways to skew juries based on race.
McClesky v. Kemp
In the 1987 Supreme Court case McClesky v. Kemp, counsel on behalf of death row prisoner Warren McClesky argued that death penalty sentences in Georgia were racially biased related to the race of the victim. The court ruled against McClesky who was executed by electrocution in 1991, ruling that racial disparities in the death penalty were not a violation of one's Constitutional right of "equal protection of the law."
Batson v. Kentucky
In this 1977 case the Supreme Court ruled that prosecutors may not use race as a factor in eliminating potential jurors from the jury pool. Likewise, a former Assistant District Attorney in Philadelphia, Pennsylvania, wrote explicit directions to his prosecutors on how to strike African-Americans from juries, without violating the Supreme Court's ruling.
Legislation
In 1998, Kentucky became the first death penalty state to pass the Racial Justice Act, a law that prohibits the death penalty from being sought on the basis of race. Following this victory, Racial Justice Act legislation was introduced, but was not passed, in Florida, Georgia, Illinois, Nebraska, North Carolina, and South Carolina.

In 1997, David Baldus and statistician George Woodworth examined the death penalty rates among all death eligible defendants in Philadelphia, Pennsylvania between the years of 1983 and 1993. The results of their study proved that the odds of receiving the death penalty in Philadelphia increased by 38% when the accused was black.

Nationwide, a 1990 General Accounting Office (GAO) report reviewed numerous studies of patterns of racial discrimination in death penalty sentencing. Their review found that for homicides committed under otherwise similar circumstances, and where defendants had similar criminal histories, a defendant was several times more likely to receive the death penalty if the victim was white than if his victim was African American.

University of Iowa law professor David Baldus found that during the 1980s prosecutors in Georgia sought the death penalty for 70 % of black defendants with white victims, but for only 15% of white defendants with black victims.

Prosecutors have unfettered discretion in deciding which cases become capital cases, seeking the death penalty in approximately 1 percent of all capital eligible cases. Notably among the 38 states that allow the death penalty, approximately 98% of the prosecutors are white.

In the Okmulgee Judicial District of Georgia, District Attorney Joseph Briley tried 33 capital cases between 1974 and 1994. Twenty-four of the cases were against black defendants. In cases in which the defendant was black and the victim was white, Briley used 96 out of his 103 jury challenges against African-Americans.

In addition, between 1983 and 1993 prosecutors in Philadelphia voted to remove 52% of potential black jurors while trying to remove only 23% of other potential jurors.

In the fall of 2000, The U.S. Department of Justice (DOJ) released the results of an initial survey of federal death penalty prosecutions. The report shows that the federal death penalty, like its application in the states, is used disproportionately against people of color. Of the 18 prisoners currently on federal death row, 16 are either African-American, Hispanic or Asian. From 1995-2000, 80% of all the federal capital cases recommended by U.S. Attorneys to the Attorney General seeking the death penalty involved people of color. Even after review by the Attorney General, 72% of the cases approved for death penalty prosecution involved minority defendants.

The DOJ study also revealed the influence that the race of the victim has in determining potential capital cases. U.S. Attorneys recommended the death penalty in 36 % of the cases with black defendants and non-black victims, but only recommended the death penalty in 20 % of the cases with black defendants and black victims.

The DOJ study left many questions unanswered, prompting calls for a more thorough review. In June 2000, Attorney General John Ashcroft announced that the follow-up review of 950 cases had shown no evidence of racial bias. These results are unreliable because they were not based on the total number of cases that prosecutors could have submitted to former Attorney General Janet Reno for review, but only on those that were actually submitted. Following hearings chaired by Senator Russell Feingold (D-WI) on oversight of the federal death penalty in June 2001, Attorney General Ashcroft ordered the National Institute of Justice to undergo a study on the possibility of racial and geographic biases in the federal death penalty.

Since taking office two years ago, Ashcroft has overturned local U.S. district attorneys' decisions not to seek the death penalty 28 times, which is more than the number of "overrides" during Attorney General Janet Reno's tenure. Of these 28 ""overrides,"" two involved suspects who are white; 23 involved suspects who are black, Latino or Native American; and three involved suspects whose race could not be determined.

A systemic racial bias in the application of the death penalty exists at both the state and federal level. A moratorium on the death penalty is needed to address this miscarriage of justice.

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The color of a defendant and victim's skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43 % of total executions since 1976 and 55 % of those currently awaiting execution.

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1. Financial costs to taxpayers of capital punishment is several times that of keeping someone in prison for life.

2. It is barbaric and violates the "cruel and unusual" clause in the Bill of Rights.

3. The endless appeals and required additional procedures clog our court system.

4. We as a society have to move away from the "eye for an eye" revenge mentality if civilization is to advance.

5. It sends the wrong message: why kill people who kill people to show killing is wrong.

6. Life in prison is a worse punishment and a more effective deterrent.

7. Other countries (especially in Europe) would have a more favorable image of America.

8. Some jury members are reluctant to convict if it means putting someone to death.

9. The prisoner's family must suffer from seeing their loved one put to death by the state, as well as going through the emotionally-draining appeals process.

10. The possibility exists that innocent men and women may be put to death.

11. Mentally ill patients may be put to death.

12. It creates sympathy for the monstrous perpetrators of the crimes.

13. It often draws top talent laywers who will work for little or no cost due to the publicity of the case and their personal beliefs against the morality of the death penalty, increasing the chances a technicality or a manipulated jury will release a guilt person.

14. It is useless in that it doesn't bring the victim back to life.

1. The death penalty gives closure to the victim's families who have suffered so much.

2. It creates another form of crime deterrent.

3. Justice is better served.

4. Our justice system shows more sympathy for criminals than it does victims.

5. It provides a deterrent for prisoners already serving a life sentence.

6. DNA testing and other methods of modern crime scene science can now effectively eliminate almost all uncertainty as to a person's guilt or innocence.

7. Prisoner parole or escapes can give criminals another chance to kill.

8. It contributes to the problem of overpopulation in the prison system.

9. It gives prosecutors another bargaining chip in the plea bargain process, which is essential in cutting costs in an overcrowded court system.

Related Links

Overview/Background

The United States remains in the minority of nations in the world that still uses death as penalty for certain crimes. Many see the penalty as barbaric and against American values. Others see it as a very important tool in fighting violent pre-meditated murder. Two things have once again brought this issue to national debate. One is the release of some highly publicized studies that show a number of innocents had been put to death. The second is the issue of terrorism and the need to punish its perpetrators.

1. Financial costs to taxpayers of capital punishment is several times that of keeping someone in prison for life. Most people don't realize that carrying out one death sentence costs 2-5 timesmore than keeping that same criminal in prison for the rest of his life. How can this be? It has to do with the endless appeals, additional required procedures, and legal wrangling that drag the process out. It's not unusual for a prisoner to be on death row for 15-20 years. Judges, attorneys, court reporters, clerks, and court facilities all require a substantial investment by the taxpayers. Do we really have the resources to waste?

2. Life in prison is a worse punishment and a more effective deterrent. For those of you who don't feel much sympathy for a murderer, keep in mind that death may be too good for them. With a death sentence, the suffering is over in an instant. With life in prison, the pain goes on for decades. Prisoners are confined to a cage and live in an internal environment of rape and violence where they're treated as animals. And consider terrorists. Do you think they'd rather suffer the humiliation of lifelong prison or be "martyred" by a death sentence? What would have been a better ending for Osama bin Laden, the bullet that killed him instantly, or a life of humiliation in an American prison (or if he was put through rendition to obtain more information).

3. It often draws top talent laywers who will work for little or no cost due to the publicity of the case and their personal beliefs against the morality of the death penalty, increasing the chances a technicality or a manipulated jury will release a guilt person. Top attorneys are world-class manipulators. They know how to cover up facts and misdirect thinking. They know how to select juries sympathetic to their side. They know how to find obscure technicalities and use any other means necessary to get their client off without any punishment. Luckily, most criminal defendants cannot afford to hire these top guns; they must make do with a low-paid public defender or some other cheaper attorney. However, a death penalty case changes everything. First of all, a death penalty case almost always garners significant media attention. Lawyers want that exposure, which enhances their name recognition & reputation for potential future plantiffs and defendants. Second of all, thousands of attorneys have made their personal crusade in life the stomping out of the death penalty. Entire organizations have sprung up to fight death penalty cases, often providing all the funding for a legal defense. For an example, look no further than theCasey Anthony trial, in which a pool of top attorneys took on a high profile death penalty case and used voir dire and peremptory challenges to craft one of the stupidest juries on record, who ended up ignoring facts and common sense or release an obviously guilty woman who killed her daughter. After the "not guilty" verdict was rendered, defense attorneys such as Cheney Mason went into long-winded speeches for the media about the evils of the death penalty.

4. It is useless in that it doesn't bring the victim back to life. Perhaps the biggest reason to ban the death penalty is that it doesn't change the fact that the victim is gone and will never come back. Hate, revenge, and anger will never cure the emptiness of a lost loved one. Forgiveness is the only way to start the healing process, and this won't happen in a revenge-focused individual.

1. It creates another form of crime deterrent. Crime would run rampant as never before if there wasn't some way to deter people from committing the acts. Prison time is an effective deterrent, but with some people, more is needed. Prosecutors should have the option of using a variety of punishments in order to minimize crime.

2. It provides a deterrent for prisoners already serving a life sentence. What about people already sentenced to life in prison. What's to stop them from murdering people constantly whilein prison? What are they going to do--extend their sentences? Sure, they can take away some prison privileges, but is this enough of a deterrent to stop the killing? What about a person sentenced to life who happens to escape? What's to stop him from killing anyone who might try to bring him in or curb his crime spree?

3. DNA testing and other methods of modern crime scene science can now effectively eliminate almost all uncertainty as to a person's guilt or innocence. One of the biggest arguments against the death penalty is the possibility of error. Sure, we can nevercompletely eliminate all uncertainty, but nowadays, it's about as close as you can get. DNA testing is over 99 percent effective. And even if DNA testing and other such scientific methods didn't exist, the trial and appeals process is so thorough it's next to impossible to convict an innocent person. Remember, a jury of 12 members mustunanimously decide there's not even a reasonable doubt the person is guilty. The number of innocent people that might somehow be convicted is no greater than the number of innocent victims of the murderers who are set free.

4. It gives prosecutors another bargaining chip in the plea bargain process, which is essential in cutting costs in an overcrowded court system. The number of criminal cases that are plea bargained (meaning the accused admits guilt in return for a lesser sentence or some other concession) can be as high as 80 or 90 percent of cases. With the time, cost, and personnel requirements of a criminal case, there really isn't much of a choice. The vast majority of people that are arraigned are in fact guilty of the crime they are accused. Even if you believe a defendant only deserves life in prison, without the threat of a death sentence, there may be no way to get him to plead guilty and accept the sentence. If a case goes to trial, in addition to the enormous cost, you run the chance that you may lose the case, meaning a violent criminal gets off scot free. The existence of the death penalty gives prosecutors much more flexibility and power to ensure just punishments.

Reader Comments Death Penalty Information Center ProDeathPenalty.com Death Penalty Organization - Pro and Con Criminal Justice: Capital Punishment Focus Miscellaneous Death Penalty Links National Coalition to Ban the Death Penalty DeathPenalty.org NoDeathPenalty.org ReligiousToleragance.org
Is anything missing? Is any of the material inaccurate? Please let me know.
Joe Messerli
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BalancedPolitics.org - Death Penalty (Pros & Cons, Arguments For and Against, Advantages & Disadvantages)

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Free balanced, two-sided discussion of controversial social and policital issues (pros and cons)

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The death penalty in the US: What the data says - USAFacts

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With the federal Justice Department announcing a policy to resume executions, executions of those on death row across the country have decreased in recent years.

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In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines-like bail, civil asset forfeiture, or the Brady doctrine-so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

Irick exhibited signs of mental illness as early as 6, leading some to hypothesize that he had suffered brain damage from his abuse. Around the time of the offense, he reportedly started hallucinating, telling the victim's family, with whom he lived, that he heard the devil's commands, who gave him "instructions on what to do." A neuropsychologist believed Irick was likely schizophrenic or psychotic during this period, and in post-trial proceedings, the state's own expert called Irick's competence into question.

But the jury never heard this evidence. The defense attorneys presented no family history, called no witnesses, and presented no mental health evidence. It was only after a jury sentenced him to death for the rape and murder of a young girl that lawyers on appeal uncovered the trauma and illness that marred Irick's life, at which point it was too late.

Although America's use of the death penalty is declining rapidly, even with fewer cases, courts are not getting better at ensuring that only the most culpable are sentenced to death, and the system is deeply broken. Below, we explore the state of the death penalty in America today.

1. The death penalty is dying.

There's ample evidence that the death penalty is on the wane in America. Here's what we know about why.
New death sentences are down-and prosecutors are seeking it less.
The data behind the 2017 numbers is telling: Responsibility for new death sentences continued to lie within a handful of outlier jurisdictions, with 31 percent of the sentences coming from three counties: Riverside, California; Clark, Nevada; and Maricopa, Arizona. In 2017, for the first time since 1974, there were no death sentences in Harris County, Texas. [ Death Penalty Information Center ] Put differently, out of the 3,141 counties in the U.S., only 16 sentenced five or more people to death between 2010 and 2015. Two percent of counties nationwide now account for the majority of prisoners on states' death rows. [ Emily Bazelon / New York Times Magazine ]

Juries are rejecting it.
But there is another reason for the decline: Juries are rejecting prosecutors' requests to sentence people to death.

Prosecutors had not sought a death sentence in Dallas, a traditional death penalty stronghold, since 2015. But in 2017, they tried and failed twice. Jurors in the Justin Smith case indicated they were deadlocked on the penalty decision, and Smith reached a plea agreement with the prosecutor sentencing him to life in prison without parole. [ Tasha Tsiaperas / Dallas Morning News ] A month later, a jury declined to sentence Erbie Bowser to death. A former military veteran and special education teacher, the government accused him of killing his girlfriend, her daughter, his estranged wife, and her daughter. The defense argued that he was seriously mentally ill and suffered from chronic traumatic encephalopathy (CTE). [ Jessica Pishko / Slate ] After eight hours of deliberations, the jury signaled it was hopelessly deadlocked and he received a life verdict. [ Tasha Tsiaperas / Dallas Morning News ]

In Wake County, North Carolina, home to Raleigh, juries have declined to sentence a defendant to death in eight out of eight cases over the last decade. After the last life sentence, the elected prosecutor stated: "At some point, we have to step back and say, 'Has the community sent us a message on that?'" [ Brandon Garrett / Slate ] North Carolina overall is rejecting the death penalty: The state sentenced no one to death in 2017, making it the third year since 2012 that it had no death sentences. Only a single person has been sent to the state's death row in the past three and a half years, and most of the state's prosecutors are no longer seeking the death penalty. The ones who are, are failing: Juries did not impose death sentences in all four trials where North Carolina prosecutors sought the penalty in 2017. In three of those trials, juries chose LWOP, and in a fourth, they convicted of a lesser crime. [ Gretchen M. Engel / Herald-Sun ]
Executions are plummeting.
The number of actual executions has also fallen significantly. In 1999, the United States executed 98 people - the most ever executed in this country. With few exceptions, that number has steadily declined, with 35 executions in 2014, 28 in 2015, 20 in 2016, and 23 in 2017. [ Death Penalty Information Center ] The 23 executions in 2017 were the second fewest since 1991, and as of the end of August 2018, there have been just 16 executions . [ Death Penalty Information Center ]
Public support for the death penalty is declining.

And while some voters are still in favor, the tide is turning.

In California, voters narrowly passed Proposition 66 to speed up the state's use of the death penalty, with 51 percent voting in favor of it. But 47 percent voted to repeal the death penalty altogether (Proposition 62), suggesting that the tide may too be changing in that state. In Los Angeles , the county with the largest number of death row prisoners, 52.3 percent voted for the repeal.

In Nebraska, the 2016 referendum in which voters opted to repeal the legislature's death penalty abolition bill is a source of controversy. Governor Pete Ricketts is being sued by the ACLU of Nebraska, on behalf of the state's death row prisoners, for overstepping his executive office boundaries by donating $425,000 along with staff members' time to the organization Nebraskans for the Death Penalty. [ Josh Saul / Newsweek ] According to the lawsuit, Ricketts provided the majority of total funding for the petition drive to get the referendum on the ballot in its first months. [ Taylor Dolven / VICE ]

2. The death penalty is broken.

Those who are executed are not the worst of the worst, despite the Supreme Court's requirement that capital punishment be limited to society's most culpable. In Roper v. Simmons (2005), the Supreme Court ruled: "Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Capital punishment must be limited to those offenders ... whose extreme culpability makes them 'the most deserving of execution.'"

The Court has established bright line rules prohibiting the execution of certain groups, finding it cruel and unusual in violation of the Eighth Amendment : the insane [ Ford v. Wainwright (1986)], the intellectually disabled [ Atkins v. Virginia (2002)], and juveniles under 18 [ Roper v. Simmons (2005)].

And yet numerous cases arise where people may be intellectually disabled or insane, but are nevertheless on death row. The vast majority of those executed in 2017 suffered from some form of impairment. Twenty of the 23 men had one or more of the following impairments: significant evidence of mental illness; evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range; serious childhood trauma, neglect, or abuse. All eight of the men who were under 21 at the time of their capital offenses had experienced serious trauma. [ Death Penalty Information Center ]

Many argue - in court pleadings and in the media - that serious mental illness,intellectual disability, or mental decline because of aging should also render people ineligible for the death sentence. Several states, including Ohio, Indiana, South Dakota, Tennessee, Texas, and Virginia, have or are considering legislation proposing such a rule. [ Bob Taft and Joseph E. Kernan / Washington Post ] A 2014 poll showed that Americans oppose executing the mentally ill by a margin of 2-1. [ DPIC]

And yet death row is replete with those suffering from serious mental illness, trauma, and other impairments. A study by Frank R. Baumgartner and Betsy Neil found that those executed between 2000 and 2015 suffered from serious mental illness at a far greater rate than those in the general population. And 39.7 percent experienced childhood abuse, compared to 1 in 10 kids in the U.S. [ Frank Baumgartner and Betsy Neil / Washington Post ]

Texas is trying to kill Andre Thomas, a man who gouged out his own eye and ate it after receiving the death penalty. He had a lengthy history of mental illness -he started hearing voices at age 9; had multiple suicide attempts, also starting at 9; and as an adult, started putting duct tape over his mouth because, he said, God told him not to talk. He also claimed he heard voices of God dueling with the voices of demons. [ Michael Hall / Texas Monthly ]

In Alabama, Vernon Madison was sentenced to death even though parts of his brain are essentially dead due to a stroke. He is incontinent, has slurred speech, impaired vision, and cannot walk without assistance. He has both dementia and amnesia, and does not remember the crime for which he is sentenced to die. In 2018, the Supreme Court issued a last minute stay of execution , over the dissent of three justices [ S.M. / The Economist ]

Prosecutors also keep putting the innocent on death row.
As of Oct. 17, 2017, 160 people have been exonerated from the nation's death rows, and numerous executions have taken place despite strong evidence of innocence. According to one study, 1 out of every 25 people sentenced to death is most likely innocent. [ Pema Levy / Newsweek ]

In California, despite recent attempts to speed up the death penalty, Vincent Benavides Figueroa was recently exonerated after spending 25 years on death row. He had been convicted of raping, sodomizing, and murdering his girlfriend's 21-month-old daughter, but medical experts who testified at trial recanted their testimony, stating there was zero evidence the girl was "raped to death." They acknowledged that they reviewed incomplete medical records at the time of trial, records that omitted the fact that many of her injuries actually occurred during initial attempts to save her life at a hospital. As the Los Angeles Times pointed out, had Proposition 66 been in effect at the time of Mr. Benavides's conviction, he would almost certainly have been executed. [ Radley Balko / Washington Post ]

In Illinois, Gabriel Solache was exonerated in 2017 after a judge overturned his conviction and death sentence for a stabbing-murder during a home robbery. With no physical or eyewitness evidence tying him to the case, the prosecution relied almost entirely on his confession. But the judge found that the disgraced Chicago detective Reynaldo Guevara told "bald-faced lies" about whether he beat a false confession out of Solache during a three-day interrogation where Solache received little sleep, drink, or water until he incriminated himself-a "confession" transcribed entirely in English even though Solache only spoke Spanish. Upon release, ICE immediately seized Solache. [ Nereida Moreno / Chicago Tribune ]

Race clearly plays a role in the imposition of the death penalty.

In 1983, David Baldus found that defendants accused of killing white victims were 4.3 times more likely to receive a death sentence than those accused of killing a Black person. [ Adam Liptak / New York Times ] That trend remains true: Recent reports in Pennsylvania , Florida , and Oklahoma found that death sentences are more common when the victim is white and less common when the victim is Black.

The race of the defendant featured prominently in two capital punishment cases that made headlines in 2017:

Georgia is fighting hard to execute Keith Tharpe notwithstanding a juror's admission that he voted for death because Tharpe is Black, stating he "wondered if Black people even have souls." The 11 th Circuit Court of Appeals recently declined to hear the case on procedural grounds. [ Bill Rankin / Atlanta-Journal Constitution ]

3. The death penalty is in chaos, largely because of unconstitutional laws.

Many states are struggling after utilizing laws around capital punishment that violate the Constitution.

Florida currently has 346 people on its death row, and now it must decide what to do with many of those cases after courts upended its sentencing scheme. In 2016, in Hurst v. Florida , the Supreme Court struck down Florida's death penalty statute that made a jury's decision of life or death only a recommendation and allowed a judge to override it. [ Harry Lee Anstead / Tallahassee Democrat ] In October of the same year, the Florida Supreme Court found that the state's revamped law, which did not require unanimous jury verdicts, was unconstitutional. [ Bill Chappell / NPR ] That left prosecutors and courts with the task of deciding what do with about 285 cases - nearly 75 percent of the death row population at the time. [ Larry Hannan / Slate ] But whether those prisoners get relief depends largely on a date because the unanimity jury requirement is retroactive only to 2002. [ Nathalie Baptiste / Mother Jones ] As a result, in October 2017, the state executed Mark Lambrix, even though the jury in his first trial voted only 8-4 in favor of death, and then in the second 10-2. [ Jason Dearen / Orlando Sentinel ]

Changes are also afoot in Texas. In March 2017, the Supreme Court declared Texas's scheme for evaluating intellectual disability unconstitutional (Moore v. Texas ). That test, which one judge linked to the character Lennie in John Steinbeck's Of Mice and Men , lacked any basis in science and medical standards. [ Robert Barnes / Washington Post ] Prosecutors asked the Texas Court of Criminal Appeals, the highest criminal court, to change Moore's death sentence to a life sentence, and agreed that he is intellectually disabled when evaluated according to current medical standards. [ Jolie McCullough / Texas Tribune ] Using new, more scientific standards for evaluating intellectual disability, the court found that Moore, who dropped out of school in the ninth grade and still struggled to understand the days of the week at age 13, still did not meet the definition. [ Jolie McCullough / Texas Tribune ]

4. Lethal injection may be torturing people.

Most states use midazolam for the anesthetic. It is unclear if midazolam reliably causes unconsciousness; once the second drug is administered, "the prisoners will be paralyzed, unable to move a muscle, unable to indicate in any way if they are experiencing the suffocating effects of the paralytic and the searing pain of the potassium chloride." [ Op-ed: Ty Alper / Los Angeles Times ]

Oklahoma infamously botched Clayton Lockett 's 2014 execution; he died 43 minutes after administration of a cocktail of midazolam, bromide, and potassium chloride. During that time, he raised and jerked his head, repeatedly tried to speak, groaned, and writhed. [ Katie Fretland / The Guardian ] The state then imposed a moratorium on executions and convened a commission to investigate. In April 2017, the commission recommended extending the moratorium until "significant reforms" are instituted. [ Tracy Connor / NBC News ] The state recently announced, however, that it has "finalized" its new three-drug cocktail. [ Michael Cook / BioEdge ]

In Arkansas in April 2017, Marcel Williams arched his back and breathed heavily during his execution. [ Ed Pilkington and Jacob Rosenberg / The Guardian ] Later the same week, a reporter witnessing the execution of another prisoner, Kenneth Williams (no relation to Marcel Williams), described him "[c]oughing, convulsing, lurching, and jerking." The reporter said, "It was clear that he was in trouble. It was clear that he was striving for breath." [ Liliana Segura / The Intercept ]

States are also experimenting with new drug combinations - but those are also causing problems.

In Ohio, executions had been on hold since Dennis McGuire's botched 2014 execution, using a two-drug combination that included midazolam. That has ended, and the state is using midazolam, rocuronium bromide, and potassium chloride. [ Jackie Borchardt / Cleveland.com ] But during Gary Otte's September 2017 execution, according to his lawyer, Otte appeared to be in pain after the administration of midazolam and looked like he was struggling for air. His lawyer also noted that Otte was crying. [ Eric Heisig / Cleveland.com ] Ohio encountered further controversy when it had to call off its November 2017 execution of 69-year-old Alva Campbell after 30 minutes of struggling to find a vein. Campbell's lawyers had warned that an exam failed to find veins suitable for IV insertion in arguments that Campbell was too ill to execute. [ Andrew Welsh-Huggins / Associated Press ]

In Alabama, officials similarly called off Doyle Lee Hamm's execution in February 2018 after the team spent several hours probing him and jabbing him in search of a usable vein, and even punctured his bladder, penetrating his femoral artery. [ Roger Cohen / New York Times ]

A few justices are troubled by these botched executions. Dissenting from the Supreme Court's refusal to intervene in Alabama's execution of Thomas Arthur earlier this year, Justice Sonia Sotomayor, joined by Justice Stephen Breyer, called midazolam-centered execution protocols "our most cruel experiment yet." [ Mark Joseph Stern / Slate ] So are companies. Drug companies across the world are trying to keep states from using their products in executions; Pfizer is one famous example. [ Erik Eckholm / New York Times ] Johnson & Johnson is another. [ Carolyn Johnson / Washington Post ]

Amid this controversy, states are trying to keep their drugs and suppliers secret. In Arkansas in August 2017, the state paid $250 cash for four vials of midazolam from an unknown source, enough for two executions. [ Taylor Dolven / VICE ] Controversy also brewed after the Arkansas Department of Corrections director revealed that one of the drugs used - potassium chloride - was "donated" to her after she drove her car to pick it up from an unnamed supplier. [ Jacob Rosenberg / Arkansas Times ]

5. Conditions of confinement on death row are cruel and unusual.

Extended time on death row may amount to cruel and unusual punishment. Although the Supreme Court has rejected this claim, which is based on a 1995 case ( Lackey v. Texas ), Justice Breyer has signaled a commitment to it, lodging a number of dissents from denials of certiorari. Regarding the long delay at issue in Foster v. Florida , he wrote: "[Twenty-seven] years awaiting execution is unusual by any standard, even that of current practice in the United States, where the average executed prisoner spends between 11 and 12 years under sentence of death." [ David Savage / Los Angeles Times ]

6. The fallacy of clemency.

In Texas, for example, the politically appointed Texas Board of Pardons and Paroles must recommend parole before the governor can grant it. The board is not required to hold a hearing on a clemency petition, and during the six years that George W. Bush was governor, none of the 152 people executed received one. Since 2001, the state has executed 314 people while the board has recommended clemency just six times. Idaho, Louisiana, Oklahoma, and Arizona operate similarly. Georgia keeps its clemency proceedings secret, making it impossible to know how they make decisions. [ Jess Stoner / The Morning News ]

7. What's next for the death penalty?

In 2013, Colorado Governor John Hickenlooper granted a temporary reprieve to Nathan Dunlap, one of the state's three death row inmates . Hickenlooper called Colorado's system of capital punishment "imperfect and inherently inequitable" and called it "highly unlikely" that he would reconsider the death penalty for Dunlap. In a published order, he wrote that "[i]t is a legitimate question whether we as a state should be taking lives." [ Karen Augé / Denver Post ] Hickenlooper also noted that, in Dunlap's case, three jurors later said they might not have supported the death penalty if they had known Dunlap was bipolar. [ Kirk Mitchell and John Frank / Denver Post ]

Oregon Governor Kate Brown announced in 2016 she would continue the death penalty moratorium imposed by her predecessor due to "serious concerns" about the "constitutionality and workability" of Oregon's death penalty statute. [ Tony Hernandez / The Oregonian ]

The Supreme Court also plans to take up two death penalty-related cases in fall 2018. In Madison v. Alabama , the Court will consider whether states can execute people who committed murders but, due to cognitive dysfunction, no longer remember their crimes. The second case, Bucklew v. Precythe , deals with whether a prisoner's medical condition could render execution by lethal injection "cruel and unusual." [ Garrett Epps/The Atlantic ]

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Capital Punishment in the United States: Explained

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In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines-like bail, civil asset forfeiture, or the Brady doctrine-so that everyone can understand them.

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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

1. Context and Basic Concepts

1. Historical Practices

2. Philosophic Frameworks and Approaches

2. Retributivist Approaches

1. Classic Retributivism: Kant and lex talionis

2. Lex talionis as a Principle of Proportionality

3. Retributivism and the Right to Life

4. Retributivism and Fairness

5. Challenges to Retributivism

3. Utilitarian Approaches

1. Classic Utilitarian Approaches: Bentham, Beccaria, Mill

2. Empirical Considerations: Incapacitation, Deterrence

3. Utilitarian Defenses: "Common Sense" and "Best Bet"

4. Challenges to Utilitarianism

5. Other Consequential Considerations

4. Capital Punishment as Communication

5. The Institution of Capital Punishment

1. Procedural Issues: Imperfect Justice

2. Discrimination: Race, Class

3. Medicine and the Death Penalty

4. Costs: Economic Issues

6. State Authority and Capital Punishment

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)

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. 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":

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.

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.

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).

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).

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

Aquinas, Thomas. Summa Theologiae. (1271-1272)
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.

Beccaria, Cesare. On Crimes and Punishments. (1764) Trans. David Young. Indianapolis: Hackett Publishing Company, 1986.
Quotations and references are by page number and chapter number to this translation and edition.

Bentham, Jeremy. An Introduction to Principles of Morals and Legislation (1789, 1823).
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.

Hobbes, Thomas. Leviathan. (1651) Edited by Richard Tuck. Cambridge: Cambridge University Press, 1991.
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.

Kant, Immanuel. The Metaphysical Elements of Justice, Part I of The Metaphysics of Morals. (1797) Translated by John Ladd. Indianapolis: Bobbs-Merrill, 1965.
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.

Locke, John. Two Treatises of Government. (1690) Ed Peter Laslett. Cambridge: Cambridge University Press, 1988.
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.

Rousseau, Jean Jacques. On the Social Contract. (1762) Trans. Donald A. Cress. Indianapolis: Hackett, 1987.
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.

Banner, Stuart. The Death Penalty: An American History. Cambridge: Harvard University Press, 2003.
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.

Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. Oxford: Oxford University Press, 1997.
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, Hugo Adam. Killing as Punishment: Reflections on the Death Penalty in America. Boston: Northeastern University Press, 2004.
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.

Black, Charles L., Jr. Capital Punishment: The Inevitability of Caprice and Mistake. Second edition. New York: Norton, 1981.
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.

Hart, H. L. A. "Prolegomenon to the Principles of Punishment." Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon Press, 1968. pp. 1-27.
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.

Nathanson, Stephen. An Eye For An Eye? The Morality of Punishing by Death. Second edition. Totowa, NJ: Rowman & Littlefield, 2001.
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.

Nozick, Robert. Anarchy, State, & Utopia. New York: Basic Books, 1974.
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.

Nozick, Robert. Philosophical Explanations. Cambridge: Harvard U P, 1981.
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.

Pojman, Louis, and Jeffrey Reiman. The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998.
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.

Schabas, William. The Abolition of the Death Penalty in International Law. Third edition. Cambridge: Cambridge University Press, 2002.
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.

Sorell, Tom. "Aggravated Murder and Capital Punishment." Journal of Applied Philosophy 10 (1993): 201-213.
An excellent analysis of the arguments of John Stuart Mill and Immanuel Kant in defense of capital punishment for at least some murders.

Sorell, Tom. Moral Theory and Capital Punishment. Oxford: Basil Blackwell in association with the Open University, 1987.
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.

Ten, C.L. Crime, Guilt, and Punishment. Oxford: Clarendon Press, 1987.
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: bob_hoag@berea.edu
Berea College
U.S.A.

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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.

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Opinion

Leg tie-downs on the gurney in the execution room at the Oregon State Penitentiary, in Salem, Ore. Credit... Rick Bowmer/Associated Press

SALEM, Ore. - As superintendent of the Oregon State Penitentiary, I planned and carried out that state's only two executions in the last 54 years. I used to support the death penalty. I don't anymore.

I was born and raised in the segregated South. I was 13 when Emmett Till was lynched for "flirting" with a white woman. I can remember upstanding black Christians expressing hope that his murderers would be caught and hanged. It seemed quite reasonable to me then that death was the only proportionate response for people who would so egregiously violate the norms of a society.

Years later, as a young law enforcement officer, I lost a close friend, John Tillman Hussey, and a cousin, Louis Perry Bryant - both law enforcement officers themselves - to execution-style murders at the hands of felons who were attempting to avoid arrest. I remember feeling that justice had been served when one of their killers was executed.

In 1994, during my interview for the superintendent job, I was asked if I would be willing to conduct an execution. I said yes. Oregon had not executed anyone in decades, but the death penalty was part of the criminal justice system, and I had to be prepared for all of the duties that a superintendent could be called upon to perform.

Shortly afterward, I was charged with executing two inmates on the penitentiary's death row, Douglas Franklin Wright and Harry Charles Moore. Moore had been convicted of killing his half sister and her former husband, and he said he'd take legal action against anyone who tried to stop his execution. Wright was sentenced to death for killing three homeless men. He later admitted to killing a 10-year-old boy. He, too, had given up his appeals.

Regardless of their crimes, the fact that I was now to be personally involved in their executions forced me into a deeper reckoning with my feelings about capital punishment. After much contemplation, I became convinced that, on a moral level, life was either hallowed or it wasn't. And I wanted it to be.

I could not see that execution did anything to enhance public safety. While death penalty supporters suggest that capital punishment has the power of deterrence, a 2012 report by the National Research Council found that research "is not informative about whether capital punishment decreases, increases or has no effect on homicide rates."

I now believed that capital punishment was a dismal failure as a policy, but I was still expected to do my job. So I met with my staff and explained my position. I made it known that anyone who felt similarly opposed could back out of our assignment. According to state policy, assisting in the executions was voluntary for everyone but the superintendent. And yet each of those asked to serve chose to stay to ensure that the job was done professionally.

I'm a Vietnam-era veteran, and a law enforcement professional who has been trained to deal with life-or-death situations, as were many of my colleagues. We focused on carrying out our responsibilities and leaving everyone involved with as much dignity as possible.

I began to feel the weight of this undertaking while practicing for the executions. Teams rehearsed for more than a month. There was a full "run through" of the execution every week.

The weight intensified during the executions, which took place eight months apart, and it didn't subside until well after they were completed. I cannot put into words the anxiety I felt about the possibility of a botched procedure. I wasn't certain how my staff would fare. These were the first executions in Oregon in over three decades. These were the first executions in Oregon to be administered by use of lethal injections. I was the first black superintendent of the Oregon State Penitentiary. All of these firsts had the potential to come together in a very negative way if my team made a single mistake.

Planning an execution is a surreal business. During a prisoner's final days, staff members keep the condemned person under 24-hour surveillance to, among other things, ensure that he doesn't harm or kill himself, thus depriving the people of Oregon of the right to do the same. I can understand the administrative logic for this reality, but it doesn't make this experience any less strange.

During the execution itself, correctional officers are responsible for everything, from strapping the prisoner's ankles and wrists to a gurney to administering the lethal chemicals. One of the condemned men asked to have his wrist straps adjusted because they were hurting him. After the adjustment was made, he looked me in the eye and said: "Yes. Thanks, boss."

After each execution, I had staff members who decided they did not want to be asked to serve in that capacity again. Others quietly sought employment elsewhere. A few told me they were having trouble sleeping, and I worried they would develop post-traumatic stress disorder if they had to go through it another time.

Together, we had spent many hours planning and carrying out the deaths of two people. The state-ordered killing of a person is premeditated and calculated, and inevitably some of those involved incur collateral damage. I have seen it. It's hard to avoid giving up some of your empathy and humanity to aid in the killing of another human being. The effects can lead to all the places you'd expect: drug use, alcohol abuse, depression and suicide.

But the job gets done - despite the qualms and the cost. That's the way it's supposed to work. Capital punishment keeps grinding on, out of sight of society.

The average citizen will never find himself looking a death row prisoner in the eye, administering a lethal injection and stating the time of death in front of observers and reporters. But we all share the burden of a policy that has not been shown to make the public any safer, and that endures despite the availability of reasonable alternatives.

I am encouraged that Oregon now has a moratorium on executions, and there have not been any in the state since the ones I oversaw. Nationwide, in the past few decades, executions have also been declining, from a high of 98 in 1999 to 15 so far this year. But people continue to be sentenced to death.

Since I retired from corrections in 2010, my mission has been to persuade people that capital punishment is a failed policy. America should no longer accept the myth that capital punishment plays any constructive role in our criminal justice system. It will be hard to bring an end to the death penalty, but we will be a healthier society as a result.

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Opinion | What I Learned From Executing Two Men

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Opinion SALEM, Ore. - As superintendent of the Oregon State Penitentiary, I planned and carried out that state's only two executions in the last 54 years. I used to support the death penalty. I don't anymore. I was born and raised in the segregated South.

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Religious Statements

2014 Public Religion Research Institute Poll Finds That Most Religious Affiliations in the United States Prefer Life in Prison Without Parole to the Death Penalty

The September 2014 "American Values Survey" by the Public Religion Research Institute (PRPI) showed that 48% of Americans said they preferred life without parole as the punishment for murder, as compared to 44% who said they preferred the death penalty. The poll found what PRPI commentators described as "significant religious divides on this issue." Support for the death penalty was lowest among Hispanic and Black Protestants, at 24% and 25%, respectively. 68% of each preferred life without parole. Catholics, Jews, other non-Christian religions, and the religiously unaffiliated all preferred life without parole to the death penalty. Only White evangelical (59 percent) and White mainline Protestants (52 percent) expressed majority support for the death penalty, with 34% and 40% from these groups, respectively, preferring life without parole.

(J. Piacenza, Support for Death Penalty by Religious Affiliation (Apr. 9, 2015))

Gallup Poll: Who Supports the Death Penalty?

The combined aggregate results from the nine surveys conducted from 2001 through 2004 show some interesting, albeit subtle, differences in death penalty support by religious affiliation.

Church Attendance

Americans who attend religious services on a regular basis are slightly less likely to support the death penalty than those who attend less frequently. Although a majority of frequent and infrequent churchgoers support the death penalty, the data show that 65% of those who attend services weekly or nearly weekly favor capital punishment, compared with 69% of those who attend services monthly and 71% of those who seldom or never attend.

Religious Preference

Individuals who self-identify as Protestants are somewhat more likely to endorse capital punishment than are Catholics and far more likely than those with no religious preference. More than 7 in 10 Protestants (71%) support the death penalty, while 66% of Catholics support it. Fifty-seven percent of those with no religious preference favor the death penalty for murder.

*Results are based on telephone interviews with 6,498 national adults, aged 18 and older, conducted Feb. 19-21, 2001; May 10-14, 2001; Oct. 11-14, 2001; May 6-9, 2002; Oct. 14-17, 2002; May 5-7, 2003; Oct 6-9, 2003; May 2-4, 2004; and Oct. 11-14, 2004. For results based on the total sample of national adults, one can say with 95% confidence that the maximum margin of sampling error is ± 2 percentage points. (Press Release " Who Supports the Death Penalty? " by Joseph Carroll, Gallup Poll (November 16, 2004)).

Zogby Polls Finds Dramatic Decline in Catholic Support For the Death Penalty

A national poll of Roman Catholic adults conducted by Zogby International found that Catholic support for capital punishment has declined dramatically in recent years. The Zogby Poll was released on March 21, 2005 at a press conference of the United States Conference of Catholic Bishops as it announced a new Campaign to End the Use of the Death Penalty. The poll revealed that only 48% of Catholics now support the death penalty. Comparable polls by other organizations had registered a 68% support among Catholics in 2001. In addition, the percentage of Catholics who are strongly supportive of capital punishment hs halved, from a high of 40% to 20% in the most recent survey. The poll also found that:

Regular churchgoers are less likely to support the death penalty than those who attend infrequently.

Younger Catholics are among those least likely to support the death penalty.

A third of Catholics who once supported the use of the death penalty now oppose it.

Among the major reasons Catholics gave for their opposition to capital punishment was "respect for life," and 63% voiced concerns about what the use of the death penalty "does to us as a people and a country." Cardinal Theodore McCarrick, Archbishop of Washington, was joined at the press conference by John Zogby, President of Zogby International, Bud Welch, whose daughter was killed in the Oklahoma City bombing, and Kirk Bloodsworth, who was freed from death row after DNA evidence led to his exoneration. ( United States Conference of Catholic Bishops Press Release, March 21, 2005)

Public Religion Research Poll Finds That Mainline Protestant Clergy are Strongly Opposed to the Death Penalty

A national poll of Mainline Protestant clergy conducted in 2008 by Public Religion Research, LLC, revealed that 66% of mainline clergy oppose the death penalty while only 27% support it. The level of opposition to capital punishment varies significantly based on denomination. Eighty-two percent of ministers from the Universal Church of Christ (UCC) and 81% of Episcopal ministers oppose capital punishment. However, only 53% of American Baptist ministers oppose the death penalty. The survey also found that Mainline Protestant ministers are less likely to speak out on controversial social issues. Twenty-six percent of Mainline Protestant clergy state that they often discuss the issue of capital punishment.

The seven largest Mainline Protestant denominations in the United States include the United Methodist Church, the Evangelical Lutheran Church in America, the Presbyterian Church USA, American Baptist Churches USA, the Episcopal Church, the United Church of Christ, and the Christian Church (Disciples of Christ). (" Clergy Voices: Findings from the 2008 Mainline Protestant Clergy Voices Survey, " Public Religion Research, March 6, 2009)

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opinion polls: death penalty support and religion

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Opinion Polls: Death Penalty Support and Religion

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2014 Public Religion Research Institute Poll Finds That Most Religious Affiliations in the United States Prefer Life in Prison Without Parole to the Death Penalty The September 2014 "American Values Survey" by the Public Religion Research Institute (PRPI) showed that 48% of Americans said they...

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The death penalty prevents future murders.

Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.
For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced results showing that for every inmate who was executed, 7 lives were spared because others were deterred from committing murder. Similar results have been produced by disciples of Ehrlich in follow-up studies.

Moreover, even if some studies regarding deterrence are inconclusive, that is only because the death penalty is rarely used and takes years before an execution is actually carried out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty.

Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the question of deterrence closely, wrote: "Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks."

Finally, the death penalty certainly "deters" the murderer who is executed. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in prison is prevented from robbing on the streets. Vicious murderers must be killed to prevent them from murdering again, either in prison, or in society if they should get out. Both as a deterrent and as a form of permanent incapacitation, the death penalty helps to prevent future crime.

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Deterrence (In Support of the Death Penalty)

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The death penalty prevents future murders. Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty.

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Ex. Ord. No. 13491. Ensuring Lawful Interrogations

Ex. Ord. No. 13491, , 74 F.R. 4893, provided:

By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:

Section 1. Revocation. Executive Order 13440 of , is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from , to , concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order. Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order.

Sec. 2. Definitions. As used in this order:

(a) "Army Field Manual 2-22.3" means FM 2-22.3, Human Intelligence Collector Operations, issued by the Department of the Army on .

(b) "Army Field Manual 34-52" means FM 34-52, Intelligence Interrogation, issued by the Department of the Army on .

(c) "Common Article 3" means Article 3 of each of the Geneva Conventions.

(d) "Convention Against Torture" means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, , 1465 U.N.T.S. 85, S. Treaty Doc. No. 100-20 (1988).

(e) "Geneva Conventions" means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, (6 UST 3516).

(f) "Treated humanely," "violence to life and person," "murder of all kinds," "mutilation," "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" refer to, and have the same meaning as, those same terms in Common Article 3.

(g) The terms "detention facilities" and "detention facility" in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.

Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.

(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340-2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.

(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.

(c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation-including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2-22.3, and its predecessor document, Army Field Manual 34-52-issued by the Department of Justice between , and .

Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals.

(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.

(b) International Committee of the Red Cross Access to Detained Individuals. All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.

Sec. 5. Special Interagency Task Force on Interrogation and Transfer Policies.

(a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on Interrogation and Transfer Policies (Special Task Force) to review interrogation and transfer policies.

(b) Membership. The Special Task Force shall consist of the following members, or their designees:

(i) the Attorney General, who shall serve as Chair;

(ii) the Director of National Intelligence, who shall serve as Co-Vice-Chair;

(iii) the Secretary of Defense, who shall serve as Co-Vice-Chair;

(iv) the Secretary of State;

(v) the Secretary of Homeland Security;

(vi) the Director of the Central Intelligence Agency;

(vii) the Chairman of the Joint Chiefs of Staff; and

(viii) other officers or full-time or permanent part-time employees of the United States, as determined by the Chair, with the concurrence of the head of the department or agency concerned.

(c) Staff. The Chair may designate officers and employees within the Department of Justice to serve as staff to support the Special Task Force. At the request of the Chair, officers and employees from other departments or agencies may serve on the Special Task Force with the concurrence of the head of the department or agency that employ such individuals. Such staff must be officers or full-time or permanent part-time employees of the United States. The Chair shall designate an officer or employee of the Department of Justice to serve as the Executive Secretary of the Special Task Force.

(d) Operation. The Chair shall convene meetings of the Special Task Force, determine its agenda, and direct its work. The Chair may establish and direct subgroups of the Special Task Force, consisting exclusively of members of the Special Task Force, to deal with particular subjects.

(e) Mission. The mission of the Special Task Force shall be:

(i) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2-22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and

(ii) to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.

(f) Administration. The Special Task Force shall be established for administrative purposes within the Department of Justice and the Department of Justice shall, to the extent permitted by law and subject to the availability of appropriations, provide administrative support and funding for the Special Task Force.

(g) Recommendations. The Special Task Force shall provide a report to the President, through the Assistant to the President for National Security Affairs and the Counsel to the President, on the matters set forth in subsection (d) within 180 days of the date of this order, unless the Chair determines that an extension is necessary.

(h) Termination. The Chair shall terminate the Special Task Force upon the completion of its duties.

Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340-2340A; the War Crimes Act [of 1996], 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109-366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

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42 U.S. Code § 2000dd - Prohibition on cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government

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Ex. Ord. No. 13491. Ensuring Lawful Interrogations Ex. Ord. No. 13491, , 74 F.R.

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Unless a call is received from state officials to stay the execution, the execution proceeds as planned. While a lethal-injection machine exists, and was once used by several states, most states now opt to perform the injections manually due to the fear of mechanical failure. Usually an execution team comprises prison employees. Some states use the same personnel for every execution, while others rotate the duty among several employees.

The execution team is either in a separate room or behind a curtain and cannot be seen by witnesses or the condemned. In some cases, the executioners may wear a hood to conceal their identity. At the warden's signal, the execution team will begin injecting lethal doses of two or three drugs into the IVs. Some states use multiple executioners, all of whom inject drugs into an IV tube -- but only one of the executioners is actually delivering the lethal injection. None of the executioners know who has delivered the lethal dose and who has injected drugs into a dummy bag.

The drugs are administered, in this order:

Anesthetic - Sodium thiopental, which has the trademark name Pentothal, puts the inmate into a deep sleep. This drug is a barbiturate that induces general anesthesia when administered intravenously. It can reach effective clinical concentrations in the brain within 30 seconds, according to an Amnesty International report. For surgical operations, patients are given a dose of 100 to 150 milligrams over a period of 10 to 15 seconds. For executions, as many as 5 grams (5,000 mg) of Pentothal may be administered. This in itself is a lethal dose. It's believed by some that after this anesthetic is delivered, the inmate doesn't feel anything.

Saline solution flushes the intravenous line.

Paralyzing agent - Pancuronium bromide, also known as Pavulon, is a muscle relaxant that is given in a dose that stops breathing by paralyzing the diaphragm and lungs. Conventionally, this drug takes effect in one to three minutes after being injected. In many states, this drug is given in doses of up to 100 milligrams, a much higher dose than is used in surgical operations -- usually 40 to 100 micrograms per one kilogram of body weight. Other chemicals that can be used as a paralyzing agent include tubocurarine chloride and succinylcholine chloride.

Saline solution flushes the intravenous line.

Toxic agent (not used by all states) - Potassium chloride is given at a lethal dose in order to interrupt the electrical signaling essential to heart functions. This induces cardiac arrest.

Within a minute or two after the last drug is administered, a physician or medical technician declares the inmate dead. The amount of time between when the prisoner leaves the holding cell and when he or she is declared dead may be just 30 minutes. Death usually occurs anywhere from five to 18 minutes after the execution order is given. After the execution, the body is placed in a body bag and taken to medical examiner, who may perform an autopsy. It is then either claimed by the inmate's family or interred by the state.

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Unless a call is received from state officials to stay the execution, the execution proceeds as planned. While a lethal-injection machine exists, and was once used by several states, most states now opt to perform the injections manually due to the fear of mechanical failure. Usually an execution team comprises prison employees.

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Executions

"With each development in the technology of execution, the same promises have been made, that each new technology was safe, reliable, effective and humane. Those claims have not generally been fulfilled." ‑Austin Sarat

It is estimated that 3% of U.S. executions in the period from 1890 to 2010 were botched. In the 2014 book, Gruesome Spectacles: Botched Executions and America's Death Penalty, Austin Sarat, a professor of jurisprudence and political science at Amherst College, describes the history of flawed executions in the U.S. during that period. Sarat reports that over those 120 years, 8,776 people were executed and 276 of those executions (3.15%) went wrong in some way. Lethal injection had the highest rate of botched executions. In his book, he defines a botched execution as follows:

Botched executions occur when there is a breakdown in, or departure from, the "protocol" for a particular method of execution. The protocol can be established by the norms, expectations, and advertised virtues of each method or by the government's officially adopted execution guidelines. Botched executions are "those involving unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner." Examples of such problems include, among other things, inmates catching fire while being electrocuted, being strangled during hangings (instead of having their necks broken), and being administered the wrong dosages of specific drugs for lethal injections.

A report in the Salt Lake City Tribune takes a different view of the suggestion that there have been no botched executions by firing squad since 1890. The paper reports that in September 1951, a Utah firing squad shot Eliseo J. Mares in the hip and abdomen and that it was "several minutes" before he was declared dead. Utah's May 16, 1879 firing-squad execution of Wallace Wilkerson also was botched. See Botched Executions in American History.

Examples of Post-Furman Botched Executions

List compiled by:

Prof. Michael L. Radelet
University of Colorado
[email protected]

Last addition: March 1, 2018

NOTE: The cases below are not presented as a comprehensive catalogue of all botched executions, but simply a listing of examples that are well-known. There are 51 executions or attempted executions listed: 2 by asphyxiation, 10 by electrocution, and 39 by lethal injection, including 3 failed executions that were halted when execution personnel were unable to set an IV line.

1. August 10, 1982. Virginia. Frank J. Coppola. Electrocution. Although no media representatives witnessed the execution and no details were ever released by the Virginia Department of Corrections, an attorney who was present later stated that it took two 55-second jolts of electricity to kill Coppola. The second jolt produced the odor and sizzling sound of burning flesh, and Coppola's head and leg caught on fire. Smoke filled the death chamber from floor to ceiling with a smoky haze.[1]

2. April 22, 1983. Alabama. John Evans. Electrocution. After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans's leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans's left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans's lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans's body charred and smoldering.[2]

3. Sept. 2, 1983. Mississippi. Jimmy Lee Gray. Asphyxiation. Officials had to clear the room eight minutes after the gas was released when Gray's desperate gasps for air repulsed witnesses. His attorney, Dennis Balske of Montgomery, Alabama, criticized state officials for clearing the room when the inmate was still alive. Said noted death penalty defense attorney David Bruck, "Jimmy Lee Gray died banging his head against a steel pole in the gas chamber while the reporters counted his moans (eleven, according to the Associated Press)."[3] Later it was revealed that the executioner, Barry Bruce, was drunk.[4]

4. December 12, 1984. Georgia. Alpha Otis Stephens. Electrocution. "The first charge of electricity ... failed to kill him, and he struggled to breathe for eight minutes before a second charge carried out his death sentence ..."[5] After the first two minute power surge, there was a six minute pause so his body could cool before physicians could examine him (and declare that another jolt was needed). During that six-minute interval, Stephens took 23 breaths. A Georgia prison official said, "Stephens was just not a conductor" of electricity.[6]

5. March 13, 1985. Texas. Stephen Peter Morin. Lethal Injection. The Associated Press reported that, because of Morin's history of drug abuse, the execution technicians were forced to probe both of Morin's arms and one of his legs with needles for nearly 45 minutes before they found a suitable vein.[7]

6. October 16, 1985. Indiana. William E. Vandiver. Electrocution. After the first administration of 2,300 volts, Vandiver was still breathing. The execution eventually took 17 minutes and five jolts of electricity.[8] Vandiver's attorney, Herbert Shaps, witnessed the execution and observed smoke and the smell of burning. He called the execution "outrageous." The Department of Corrections admitted the execution "did not go according to plan."[9]

7. August 20, 1986. Texas. Randy Woolls. Lethal Injection. A drug addict, Woolls helped the execution technicians find a useable vein for the execution.[10]

8. June 24, 1987. Texas. Elliot Rod Johnson. Lethal Injection. Because of collapsed veins, it took nearly an hour to complete the execution.[11]

9. December 13, 1988. Texas. Raymond Landry. Lethal Injection. Pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutes after the drugs first started flowing into his arms.[12] Two minutes after the drugs were administered, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. The curtain separating the witnesses from the inmate was then pulled, and not reopened for fourteen minutes while the execution team reinserted the catheter into the vein. Witnesses reported "at least one groan." A spokesman for the Texas Department of Correction, Charles Brown (sic), said, "There was something of a delay in the execution because of what officials called a 'blowout.' The syringe came out of the vein, and the warden ordered the (execution) team to reinsert the catheter into the vein."[13]

10. May 24, 1989. Texas. Stephen McCoy. Lethal Injection. He had such a violent physical reaction to the drugs (heaving chest, gasping, choking, back arching off the gurney, etc.) that one of the witnesses (male) fainted, crashing into and knocking over another witness. Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyze a chain reaction. The Texas Attorney General admitted the inmate "seemed to have had a somewhat stronger reaction," adding, "The drugs might have been administered in a heavier dose or more rapidly."[14]

11. July 14, 1989. Alabama. Horace Franklin Dunkins, Jr. Electrocution. It took two jolts of electricity, nine minutes apart, to complete the execution. After the first jolt failed to kill the prisoner (who was mildly retarded), the captain of the prison guard opened the door to the witness room and stated "I believe we've got the jacks on wrong."[15] Because the cables had been connected improperly, it was impossible to dispense sufficient current to cause death. The cables were reconnected before a second jolt was administered. Death was pronounced 19 minutes after the first electric charge. At a post-execution news conference, Alabama Prison Commissioner Morris Thigpen said, "I regret very very much what happened. [The cause] was human error."[16]

12. May 4, 1990. Florida. Jesse Joseph Tafero. Electrocution. During the execution, six-inch flames erupted from Tafero's head, and three jolts of power were required to stop his breathing. State officials claimed that the botched execution was caused by "inadvertent human error" - the inappropriate substitution of a synthetic sponge for a natural sponge that had been used in previous executions.[17] They attempted to support this theory by sticking a part of a synthetic sponge into a "common household toaster" and observing that it smoldered and caught fire.[18]

13. September 12, 1990. Illinois. Charles Walker. Lethal Injection. Because of equipment failure and human error, Walker suffered excruciating pain during his execution. According to Gary Sutterfield, an engineer from the Missouri State Prison who was retained by the State of Illinois to assist with Walker's execution, a kink in the plastic tubing going into Walker's arm stopped the deadly chemicals from reaching Walker. In addition, the intravenous needle was inserted pointing at Walker's fingers instead of his heart, prolonging the execution.[19]

14. October 17, 1990. Virginia. Wilbert Lee Evans. Electrocution. When Evans was hit with the first burst of electricity, blood spewed from the right side of the mask on Evans's face, drenching Evans's shirt with blood and causing a sizzling sound as blood dripped from his lips. Evans continued to moan before a second jolt of electricity was applied. The autopsy concluded that Evans suffered a bloody nose after the voltage surge elevated his high blood pressure.[20]

15. August 22, 1991. Virginia. Derick Lynn Peterson. Electrocution. After the first cycle of electricity was applied, and again four minutes later, prison physician David Barnes inspected Peterson's neck and checked him with a stethoscope, announcing each time "He has not expired." Seven and one-half minutes after the first attempt to kill the inmate, a second cycle of electricity was applied. Prison officials later announced that in the future they would routinely administer two cycles before checking for a heartbeat.[21]

16. January 24, 1992. Arkansas. Rickey Ray Rector. Lethal Injection. It took medical staff more than 50 minutes to find a suitable vein in Rector's arm. Witnesses were kept behind a drawn curtain and not permitted to view this scene, but reported hearing Rector's eight loud moans throughout the process. During the ordeal Rector (who suffered from serious brain damage) helped the medical personnel find a vein. The administrator of State's Department of Corrections medical programs said (paraphrased by a newspaper reporter) "the moans did come as a team of two medical people that had grown to five worked on both sides of his body to find a vein." The administrator said "That may have contributed to his occasional outbursts." The difficulty in finding a suitable vein was later attributed to Rector's bulk and his regular use of antipsychotic medication.[22]

17. April 6, 1992. Arizona. Donald Eugene Harding. Asphyxiation. Death was not pronounced until 10 1/2 minutes after the cyanide tablets were dropped.[23] During the execution, Harding thrashed and struggled violently against the restraining straps. A television journalist who witnessed the execution, Cameron Harper, said that Harding's spasms and jerks lasted 6 minutes and 37 seconds. "Obviously, this man was suffering. This was a violent death ... an ugly event. We put animals to death more humanely."[24] Another witness, newspaper reporter Carla McClain, said, "Harding's death was extremely violent. He was in great pain. I heard him gasp and moan. I saw his body turn from red to purple."[25] One reporter who witnessed the execution suffered from insomnia and assorted illnesses for several weeks; two others were "walking vegetables" for several days.[26]

18. March 10, 1992. Oklahoma. Robyn Lee Parks. Lethal Injection. Parks had a violent reaction to the drugs used in the lethal injection. Two minutes after the drugs were dispensed, the muscles in his jaw, neck, and abdomen began to react spasmodically for approximately 45 seconds. Parks continued to gasp and violently gag until death came, some eleven minutes after the drugs were first administered. Tulsa World reporter Wayne Greene wrote that the execution looked "painful," "scary and ugly." "It was overwhelming, stunning, disturbing - an intrusion into a moment so personal that reporters, taught for years that intrusion is their business, had trouble looking each other in the eyes after it was over."[27]

19. April 23, 1992. Texas. Billy Wayne White. Lethal Injection. White was pronounced dead some 47 minutes after being strapped to the execution gurney. The delay was caused by difficulty finding a vein; White had a long history of heroin abuse. During the execution, White attempted to assist the authorities in finding a suitable vein.[28]

20. May 7, 1992. Texas. Justin Lee May. Lethal Injection. May had an unusually violent reaction to the lethal drugs. According to one reporter who witnessed the execution, May "gasped, coughed and reared against his heavy leather restraints, coughing once again before his body froze ...."[29] Associated Press reporter Michael Graczyk wrote, "Compared to other recent executions in Texas, May's reaction to the drugs was more violent. He went into a coughing spasm, groaned and gasped, lifted his head from the death chamber gurney and would have arched his back if he had not been belted down. After he stopped breathing, his eyes and mouth remained open."[30]

21. May 10, 1994. Illinois. John Wayne Gacy. Lethal Injection. After the execution began, the lethal chemicals unexpectedly solidified, clogging the IV tube that led into Gacy's arm, and prohibiting any further passage. Blinds covering the window through which witnesses observed the execution were drawn, and the execution team replaced the clogged tube with a new one. Ten minutes later, the blinds were then reopened and the execution process resumed. It took 18 minutes to complete.[31] Anesthesiologists blamed the problem on the inexperience of prison officials who were conducting the execution, saying that proper procedures taught in "IV 101" would have prevented the error.[32]

22. May 3, 1995. Missouri. Emmitt Foster. Lethal Injection. Seven minutes after the lethal chemicals began to flow into Foster's arm, the execution was halted when the chemicals stopped circulating. With Foster gasping and convulsing, the blinds were drawn so the witnesses could not view the scene. Death was pronounced thirty minutes after the execution began, and three minutes later the blinds were reopened so the witnesses could view the corpse.[33] According to William "Mal" Gum, the Washington County Coroner who pronounced death, the problem was caused by the tightness of the leather straps that bound Foster to the execution gurney; it was so tight that the flow of chemicals into the veins was restricted. Foster did not die until several minutes after a prison worker finally loosened the straps. The coroner entered the death chamber twenty minutes after the execution began, diagnosed the problem, and told the officials to loosen the strap so the execution could proceed.[34] In an editorial, the St. Louis Post-Dispatch called the execution "a particularly sordid chapter in Missouri's capital punishment experience."[35]

23. January 23, 1996. Virginia. Richard Townes, Jr. Lethal Injection. This execution was delayed for 22 minutes while medical personnel struggled to find a vein large enough for the needle. After unsuccessful attempts to insert the needle through the arms, the needle was finally inserted through the top of Mr. Townes's right foot.[36]

24. July 18, 1996. Indiana. Tommie J. Smith. Lethal Injection. Because of unusually small veins, it took one hour and nine minutes for Smith to be pronounced dead after the execution team began sticking needles into his body. For sixteen minutes, the execution team failed to find adequate veins, and then a physician was called.[37] Smith was given a local anesthetic and the physician twice attempted to insert the tube in Smith's neck. When that failed, an angio-catheter was inserted in Smith's foot. Only then were witnesses permitted to view the process. The lethal drugs were finally injected into Smith 49 minutes after the first attempts, and it took another 20 minutes before death was pronounced.[38]

25. March 25, 1997. Florida. Pedro Medina. Electrocution. A crown of foot-high flames shot from the headpiece during the execution, filling the execution chamber with a stench of thick smoke and gagging the two dozen official witnesses. An official then threw a switch to manually cut off the power and prematurely end the two-minute cycle of 2,000 volts. Medina's chest continued to heave until the flames stopped and death came.[39] After the execution, prison officials blamed the fire on a corroded copper screen in the headpiece of the electric chair, but two experts hired by the governor later concluded that the fire was caused by the improper application of a sponge (designed to conduct electricity) to Medina's head.

26. May 8, 1997. Oklahoma. Scott Dawn Carpenter. Lethal Injection. Carpenter was pronounced dead some 11 minutes after the lethal injection was administered. As the drugs took effect, Carpenter began to gasp and shake. "This was followed by a guttural sound, multiple spasms and gasping for air" until his body stopped moving, three minutes later.[40]

27. June 13, 1997. South Carolina. Michael Eugene Elkins. Lethal Injection. Because Elkins's body had become swollen from liver and spleen problems, it took nearly an hour to find a suitable vein for the insertion of the catheter. Elkins tried to assist the executioners, asking "Should I lean my head down a little bit?" as they probed for a vein. After numerous failures, a usable vein was finally found in Elkins's neck.[41]

28. April 23, 1998. Texas. Joseph Cannon. Lethal Injection. It took two attempts to complete the execution. After making his final statement, the execution process began. A vein in Cannon's arm collapsed and the needle popped out. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, "It's come undone." Officials then pulled a curtain to block the view of the witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed.[42]

29. August 26, 1998. Texas. Genaro Ruiz Camacho. Lethal Injection. The execution was delayed approximately two hours due, in part, to problems finding suitable veins in Camacho's arms.[43]

30. October 5, 1998. Nevada. Roderick Abeyta. Lethal Injection. It took 25 minutes for the execution team to find a vein suitable for the lethal injection.[44]

31. July 8, 1999. Florida. Allen Lee Davis. Electrocution. "Before he was pronounced dead ... the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair."[45] His execution was the first in Florida's new electric chair, built especially so it could accommodate a man Davis's size (approximately 350 pounds). Later, when another Florida death row inmate challenged the constitutionality of the electric chair, Florida Supreme Court Justice Leander Shaw commented that "the color photos of Davis depict a man who - for all appearances - was brutally tortured to death by the citizens of Florida."[46] Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina (q.v.), calling the three executions "barbaric spectacles" and "acts more befitting a violent murderer than a civilized state."[47] Justice Shaw included pictures of Davis's dead body in his opinion.[48] The execution was witnessed by a Florida State Senator, Ginny Brown-Waite, who at first was "shocked" to see the blood, until she realized that the blood was forming the shape of a cross and that it was a message from God saying he supported the execution.[49] (See Photos taken after execution-graphic images).

32. May 3, 2000. Arkansas. Christina Marie Riggs. Lethal Injection. Riggs dropped her appeals and asked to be executed. However, the execution was delayed for 18 minutes when prison staff couldn't find a suitable vein in her elbows. Finally, Riggs agreed to the executioners' requests to have the needles in her wrists.[50]

33. June 8, 2000. Florida. Bennie Demps. Lethal Injection. It took execution technicians 33 minutes to find suitable veins for the execution. "They butchered me back there," said Demps in his final statement. "I was in a lot of pain. They cut me in the groin; they cut me in the leg. I was bleeding profusely. This is not an execution, it is murder." The executioners had no unusual problems finding one vein, but because Florida protocol requires a second alternate intravenous drip, they continued to work to insert another needle, finally abandoning the effort after their prolonged failures.[51]

34. December 7, 2000. Texas. Claude Jones. Lethal Injection. Jones was a former intravenous drug abuser. His execution was delayed 30 minutes while the execution team struggled to insert an IV into a vein. One member of the execution team commented, "They had to stick him about five times. They finally put it in his leg." Jim Willett, the warden of the Walls Unit and the man responsible for conducting the execution, wrote: "The medical team could not find a vein. Now I was really beginning to worry. If you can't stick a vein then a cut-down has to be performed. I have never seen one and would just as soon go through the rest of my career the same way. Just when I was really getting worried, one of the medical people hit a vein in the left leg. Inside calf to be exact. The executioner had warned me not to panic as it was going to take a while to get the fluids in the body of the inmate tonight because he was going to push the drugs through very slowly. Finally, the drug took effect and Jones took his last breath."[52]

35. June 28, 2000. Missouri. Bert Leroy Hunter. Lethal Injection. Hunter had an unusual reaction to the lethal drugs, repeatedly coughing and gasping for air before he lapsed into unconsciousness.[53] An attorney who witnessed the execution reported that Hunter had "violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth like this repeatedly. ... He suffered a violent and agonizing death."[54] However, three reporters who witnessed the execution did not substantiate these observations, with two reporting that Hunter simply coughed several times and the third stating that he saw no violent reaction to the drugs. [55]

36. November 7, 2001. Georgia. Jose High. Lethal Injection. High was pronounced dead some one hour and nine minutes after the execution began. After attempting to find a useable vein for "15 to 20 minutes," the emergency medical technicians under contract to do the execution abandoned their efforts. Eventually, one needle was stuck in High's hand, and a physician was called in to insert a second needle between his shoulder and neck.[56]

37. May 2, 2006. Ohio. Joseph L. Clark. Lethal Injection. It took 22 minutes for the execution technicians to find a vein suitable for insertion of the catheter. But three or four minutes thereafter, as the vein collapsed and Clark's arm began to swell, he raised his head off the gurney and said five times, "It don't work. It don't work." The curtains surrounding the gurney were then closed while the technicians worked for 30 minutes to find another vein. Media witnesses later reported that they heard "moaning, crying out and guttural noises."[57] Finally, death was pronounced almost 90 minutes after the execution began. A spokeswoman for the Ohio Department of Corrections told reporters that the execution team included paramedics, but not a physician or a nurse.[58]

38. December 13, 2006. Florida. Angel Diaz. Lethal Injection. After the first injection was administered, Mr. Diaz continued to move, and was squinting and grimacing as he tried to mouth words. A second dose was then administered, and 34 minutes passed before Mr. Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Mr. Diaz had some sort of liver disease.[59] After performing an autopsy, the Medical Examiner, Dr. William Hamilton, stated that Mr. Diaz's liver was undamaged, but that the IV catheters (which had been inserted in both arms) had gone through Mr. Diaz's veins and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein. Two days after the execution, Governor Jeb Bush temporarily suspended all executions in the state and appointed a commission "to consider the humanity and constitutionality of lethal injections."[60] In 2014, pictures from the autopsy of Mr. Diaz's body, along with a long article describing his painful death, were published in THE NEW REPUBLIC.[61]

39. May 24, 2007. Ohio. Christopher Newton. Lethal Injection. According to the Associated Press, "prison medical staff" at the Southern Ohio Correctional Facility struggled to find veins on each of Newton's arms during the execution. Newton, who weighted 265 pounds, was declared dead almost two hours after the execution process began. The execution "team" stuck Newton at least ten times with needles before getting the shunts in place were the needles are injected.[62]

40. June 26, 2007. Georgia. John Hightower. Lethal Injection. It took approximately 40 minutes for the nurses to find a suitable vein to administer the lethal chemicals, and death was not pronounced until 7:59, 59 minutes after the execution process began.[63]

41. June 4, 2008. Georgia. Curtis Osborne. Lethal Injection. After a 55-minute delay while the U.S. Supreme Court reviewed his final appeal, prison medical staff began the execution by trying to find suitable veins in which to insert the IV. The executioners struggled for 35 minutes to find a vein, and it took 14 minutes after the fatal drugs were administered before death was pronounced by two physicians who were inside the death chamber.[64]

42. Sept. 15, 2009. Ohio. Romell Broom (pictured, after execution attempt). Attempted Lethal Injection. Efforts to find a suitable vein and to execute Mr. Broom were terminated after more than two hours when the executioners were unable to find a useable vein in Mr. Broom's arms or legs. During the failed efforts, Mr. Broom winced and grimaced with pain. After the first hour's lack of success, on several occasions Broom tried to help the executioners find a good vein. "At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.[65] Finally, Ohio Governor Ted Strickland ordered the execution to stop, and announced plans to attempt the execution anew after a one-week delay so that physicians could be consulted for advice on how the man could be killed more efficiently.[66] The executioners blamed the problems on Mr. Broom's history of intravenous drug use. As of March 1, 2018, Mr. Broom remained on Ohio's death row.

43. Sept. 27, 2010. Georgia. Brandon Joseph Rhode. Lethal Injection. After the Supreme Court rejected his appeals, "Medics then tried for about 30 minutes to find a vein to inject the three-drug concoction." It then took 14 minutes for the lethal drugs to kill him. The execution had been delayed six days because a prison guard had given Rhode a razor blade, which Rhode used to attempt suicide.[67]

44. Jan. 16, 2014. Ohio. Dennis McGuire. Lethal Injection. McGuire gasped for air for some 25 minutes while the drugs used in the execution, hydromorphone and midazolam, slowly took effect. Witnesses reported that after the drugs were injected, McGuire was struggling, with his stomach heaving and fist clenched, making "horrible" snorting and choking sounds.[68] In a lawsuit filed after the execution, Mr. McGuire's family alleged that the inmate experienced "repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain," the lawsuit said. "It looked and sounded as though he was suffocating."[69]

45. April 29, 2014. Oklahoma. Clayton D. Lockett. Lethal Injection. Despite prolonged litigation and numerous warnings from defense attorneys about the dangers of using an experimental drug protocol with the drug midazolam, Oklahoma went ahead and scheduled the executions of Clayton Lockett and Charles Warner. Plans for the execution and the drugs used were cloaked in secrecy, with the state refusing to release information about the source and efficacy of the lethal drugs, making it impossible to accurately predict the effects of the combination of drugs. Nonetheless, Oklahoma Governor Mary Fallon pressured the Courts to allow the execution, a bill was introduced in the Oklahoma House of Representatives to impeach the Justices who had voted to stay the execution, and the state Supreme Court allowed the executions to go forward.

Mr. Lockett was the first who was scheduled to die. An hour before the execution began, the governor was notified that the executioner (a "phlebotomist") was having problems finding a usable vein, but she did not intervene. After an hour, a vein was finally found in Mr. Lockett's "groin area," and the execution went forward. Ten minutes after the administration of the first drug, a sedative, the physician supervising the process (whose very presence violated ethical standards of several medical organizations) announced that the inmate was unconscious, and therefore ready to receive the other two drugs that would actually kill him. Those two drugs were known to cause excruciating pain if the recipient was conscious. However, Mr. Lockett was not unconscious. Three minutes after the latter two drugs were injected, "he began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow."[70] Officials then lowered the blinds to prohibit witnesses from seeing what was going on, and 15 minutes later the witnesses were ordered to leave the room.

Twenty minutes after the first drugs were administered, the Director the Oklahoma Department of Corrections halted the execution, and issued a two-week stay (later extended by extensive litigation) for the execution of Mr. Warner. Mr. Lockett died 43 minutes after the execution began, of a heart attack, while still in the execution chamber.[71]

46. July 23, 2014. Arizona. Joseph R. Wood. Lethal Injection. After the chemicals (midazolam and hydromorphone) were injected, Mr. Wood repeatedly gasped for one hour and 40 minutes before death was pronounced. During the ordeal, Mr. Wood's attorneys filed an emergency appeal to a Federal District Court and placed a phone call to Supreme Court Justice Anthony Kennedy in a failed effort to halt the botched execution. Meanwhile, a spokesperson for the Arizona Attorney General's office claimed that Mr. Wood was asleep and was simply snoring. In the days before the execution, defense attorneys won a stay from the U.S. Court of Appeals for the Ninth Circuit on their motion to compel the state to reveal the source of the drugs and the training of the executioners. However, this stay was later overturned by the Supreme Court.[72] A reporter for the Arizona Republic who witnessed the execution, Michael Kiefer, said that he counted 640 gasps from Wood before he finally died.[73]

47. December 9, 2015. Georgia. Brian Keith Terrell. Lethal Injection. "[I]t took an hour for the nurse assigned to the execution to get IVs inserted into both of the condemned man's arms. She eventually had to put one into Terrell's right hand. Terrell winced several times, apparently in pain."[74]

48. February 3, 2016. Georgia. Brandon Jones. Lethal Injection. After spending 24 minutes unsuccessfully trying to insert an IV into Jones' left arm, the executioners spent 8 minutes trying to insert it in his right arm, and when that failed they again attempted to insert it in his left arm. They then asked a physician to violate several codes of medical ethics for assistance, and he or she spent 13 minutes inserting and stitching the IV near Jones' groin. Six minutes later, Jones' eyes popped open. He was 72 years old at the time of his execution.[75]

49. December 8, 2016. Alabama. Ronald Bert Smith, Jr. Lethal Injection. Smith (a former Eagle Scout and Army reservist) was convicted of a 1994 murder of a convenience store clerk, and his jury at trial (after anti-death penalty citizens were removed) voted 7-5 to recommend a punishment of life imprisonment without parole. Alabama, however, requires neither unanimity nor a majority jury vote before the trial judge can sentence a defendant to death. Smith heaved, gasped and coughed while struggling for breath for 13 minutes after the lethal drugs were administered, and death was pronounced 34 minutes after the execution began. He also "clenched his fists and raised his head during the early part of the procedure." Alabama used the controversial sedative midazolam (a "valium-like drug") in the execution.[76]

50. November 15, 2017. Ohio. Alva Campbell. Lethal Injection. "The execution team first worked on both of Alva Campbell's arms for about 30 minutes Wednesday while he was on a gurney in the state's death chamber and then tried to find a vein in his right leg below the knee. ... About 80 minutes after the execution was scheduled to begin, the 69-year-old Campbell shook hands with two guards after it appeared the insertion was successful. About two minutes later, media witnesses were told to leave without being told what was happening. ... Gary Mohr, head of the Ohio Department of Rehabilitation and Correction, ... [then] called off the execution after talking with the medical team [saying] 'It was my decision that it was not likely that we're going to access veins.' ... Prison officials brought Campbell into the death chamber in a wheelchair and provided him a wedge pillow on the gurney, which was meant to help him breathe. Campbell has suffered from breathing problems related to a longtime smoking habit. His attorneys said he has required a walker, relied on a colostomy bag and needed breathing treatments four times a day." [77]

51. February 22, 2018. Alabama. Doyle Lee Hamm. Lethal Injection (failed). Despite several warnings from defense counsel that it would be impossible to find a vein in which to insert the catheter (Hamm suffered from advanced lymphatic cancer and carcinoma), the State went forward with the execution. For 2.5 hours, the executioners tried to find a vein, leaving Hamm with a ten-twelve puncture marks, including six in his groin and others that punctured his bladder and penetrated his femoral artery. Finally, approaching a midnight deadline that prohibited further attempts, the execution was called off. Alabama Corrections Commissioner Jeff Dunn later told reporters, "I wouldn't necessarily characterize what we had tonight as a problem."[78] [NOTE: On March 5, 2018, attorneys for Doyle Hamm submitted a preliminary report from an anesthesiologist who evaluted Hamm on February 25. WARNING: Report contains graphic images and descriptions.]

Sources

ENDNOTES

[25]. Id.

[47]. Id.

# data[].attributes.attachment_link.description
Executions "With each devel­op­ment in the tech­nol­o­gy of exe­cu­tion, the same promis­es have been made, that each new tech­nol­o­gy was safe, reli­able, effec­tive and humane. Those claims have not gen­er­al­ly been ful­filled." ‑Austin Sarat It is estimated that 3% of U.S. executions in the period from 1890 to 2010 were botched.

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In Indiana prior to 1913, all executions were by hanging. From 1913 through 1994, all executions were by electric chair. Since 1995, all executions have been by lethal injection. Current execution procedure is found at Indiana Code 35-38-6 and requires that the lethal injection execution take place inside the walls of the Indiana State Prison at Michigan City before sunrise.

Indiana Code 35-38-6-1 Execution Procedure

(a) The punishment of death shall be inflicted by intravenous injection of a lethal substance or substances into the convicted person:
(1) in a quantity sufficient to cause the death of the convicted person; and
(2) until the convicted person is dead.
(b) The death penalty shall be inflicted before the hour of sunrise on a date fixed by the sentencing court. However, the execution must not occur until at least one hundred (100) days after the conviction.
(c) The superintendent of the state prison, or persons designated by the superintendent, shall designate the person who is to serve as the executioner.
(d) The department of correction may adopt rules under IC 4-22-2 necessary to implement subsection(a). [As added by P.L.311-1983, 3. Amended by P.L.294-1995, 1; P.L.20-2002, 1; P.L.67-2017, 15; P.L.217-2017, 158, effective April 27, 2017; P.L.86-2018, 334, effective March 15, 2018.]

As of December 31, 2020, a total of 31 states and the federal government authorized the death penalty. Methods of execution are defined by statute and vary by jurisdiction. In 2020, all 31 states with a death penalty statute authorized lethal injection as the primary method of execution. However, fifteen states also authorized alternative methods of execution: electrocution (9 states), lethal gas (3), firing squad (3), nitrogen hypoxia (3), and hanging (2). In states that authorized multiple methods of execution, the condemned prisoner may select the method. Five states (Arizona, Arkansas, Kentucky, Tennessee, and Utah) stipulate which method must be used depending on the date of either the crime or the sentencing. Six states authorized alternative methods if lethal injection was ruled to be unconstitutional: Arkansas authorized electrocution; Delaware authorized hanging; Mississippi and Oklahoma authorized electrocution, firing squad, or nitrogen hypoxia; Utah authorized firing squad; and Wyoming authorized lethal gas. Federal prisoners are executed by lethal injection, pursuant to 28 C.F.R. Part 26. For offenses prosecuted under the federal Violent Crime Control and Law Enforcement Act of 1994, the law of the state in which the conviction took place determines the method used (18 U.S.C. 3596).

Recent State Action:

In 2020, the Colorado legislature repealed the death penalty for first-degree murder charged on or afer July 1, 2020 (SB 20-100). The law became effective on March 23, 2020, and specifed that the repeal was prospective and did not afect the sentences of the three male prisoners under previously imposed death sentences. However, the death sentences for the three prisoners were commuted to life without the possibility of parole by the governor on the same date the repeal bill was enacted.

In 2019, New Hampshire repealed its death penalty statutes (HB 455), efective May 30, 2019. The repeal did not affect previously imposed death sentences, and as of December 31, 2020, New Hampshire held one male prisoner under sentence of death.

In 2018, the Washington Supreme Court declared the state death penalty statute unconstitutional as applied, State v. Gregory, 192 Wash. 2d 1, 427 P.3d 621 (2018). The Washinton state legislature has neither revised nor repealed the statute.

The Delaware Supreme Court held that a portion of Delawares death penalty sentencing statute (11 Del. C. 4209) was unconstitutional ( Rauf v. State, 145 A.3d 430 (Del. 2016)). No legislative action has been taken to amend the statute. As a result, capital cases are no longer pursued in Delaware.

The New York Court of Appeals held that a portion of New Yorks death penalty sentencing statute (C.P.L. 400.27) was unconstitutional. People v. Taylor, 9 N.Y.3d 129 (2007). No legislative action has been taken to amend the statute. As a result, capital cases are no longer pursued in New York.
STATE STATUTES / METHOD OF EXECUTION

Jurisdiction

Statute

Primary Method

Federal Govt

28 CFR 26.3
18 USC 3596

Lethal Injection or
State Method

LETHAL INJECTION

Procedure: State statutes typically provide: "The punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice."

The execution protocol for most jurisdictions authorizes the use of a combination of three drugs. The first, sodium thiopental or sodium pentothal, is a barbiturate that renders the prisoner unconscious. The second, pancuronium bromide, is a muscle relaxant that paralyzes the diaphragm and lungs. The third, potassium chloride, causes cardiac arrest. Each chemical is lethal in the amounts administered.

The inmate is escorted into the execution chamber and is strapped onto a gurney with ankle and wrist restraints. The inmate is connected to a cardiac monitor which is connected to a printer outside the execution chamber. An IV is started in two usable veins, one in each arm, and a flow of normal saline solution is administered at a slow rate. One line is held in reserve in case of a blockage or malfunction in the other. At the wardens signal, 5.0 grams of sodium pentothal (in 20 cc of diluent) is administered, then the line is flushed with sterile normal saline solution. This is followed by 50 cc of pancuronium bromide, a saline flush, and finally, 50 cc of potassium chloride. (See California Execution Procedures).

The most common problem encountered is collapsing veins and the inability to properly insert the IV. Some states allow for a Thorazine or sedative injection to facilitate IV insertion.

History: Lethal injection had first been proposed as a means of execution in 1888 when New York considered it, but ultimately opted for electrocution. In 1977, Oklahoma became the first state to adopt lethal injection. Texas performed the first execution by lethal injection in 1982 with the execution of Charlie Brooks.

Current Application: 20 states authorize lethal injection as the sole method of execution. 16 other states provide for lethal injection as the primary method of execution, but provide alternative methods depending upon the choice of the inmate, the date of the execution or sentence, or the possibility of the method being held unconstitutional. Since 2008, almost 90% of all U.S. executions have been by lethal injection.

ELECTROCUTION

Procedure: State statutes typically provide: "The sentence shall be executed by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application and continuance of such current through the body of such convict shall continue until such convict is dead."

The execution protocol for most jurisdictions authorizes the use of a wooden chair with restraints and connections to an electric current. The offender enters the execution chamber and is placed in the electric chair. The chair is constructed of oak and is set on a rubber matting and bolted to a concrete floor. Lap, chest, arm, and forearm straps are secured. A leg piece (anklet) is laced to the offender's right calf and a sponge and electrode is attached. The headgear consists of a metal headpiece covered with a leather hood which conceals the offender's face. The metal part of the headpiece consists of a copper wire mesh screen to which the electrode is brazened. A wet sponge is placed between the electrode and the offender's scalp. The safety switch is closed. The circuit breaker is engaged. The execution control panel is activated. The automatic cycle begins with the programmed 2,300 volts (9.5 amps) for eight seconds, followed by 1,000 volts (4 amps) for 22 seconds, followed by 2,300 volts (9.5 amps) for eight seconds. When the cycle is complete, the equipment is disconnected and the manual circuit behind the chair is disengaged. If the offender is not pronounced dead, the execution cycle is then repeated. (See Florida Execution Procedures).

The most common problems encountered include burning of varying degrees to parts of the body, and a failure of the procedures to cause death without repeated shocks. Witness accounts of many botched executions over the years have likely caused electrocution to be replaced with lethal injection as the most common method of execution.

History: In 1888, New York became the first state to adopt electrocution as its method of execution. William Kemmler was the first man executed by electrocution in 1890. See, In re Kemmler, 136 U.S. 436 (1890). The last state to adopt electrocution as a method of execution was in 1949. From 1930-1980 it was clearly the most common method of execution in the United States.

Current Application: No state currently uses electrocution as the sole method of execution. Nine other states provide for electrocution as an alternative method to lethal injection, depending upon the choice of the inmate, the date of the execution or sentence, or the possibility of the method being held unconstitutional. Of the countries outside the United States that impose capital punishment, none prescribe execution by electrocution. Both the Humane Society of the United States and the American Veterinarian Medical Association condemn electrocution as a method of euthanasia for animals. Since the reinstatement of the death penalty in 1976, 158 (11.6%) convicted murderers executed were by electric chair. (Florida 44, Virginia 31, Alabama 24, Georgia 23, Louisiana 20, South Carolina 7, Indiana 3, Nebraska 3, Kentucky 1, Arkansas 1, Tennessee 1.) The last was Robert Charles Gleason Jr. in Virginia on January 16, 2013).

LETHAL GAS

Procedure: State statutes typically and simply provide: "The punishment of death must be inflicted by the administration of a lethal gas."

The execution protocol for most jurisdictions authorizes the use of a steel airtight execution chamber, equipped with a chair and attached restraints. The inmate is restrained at his chest, waist, arms, and ankles, and wears a mask during the execution. The chair is equipped with a metal container beneath the seat. Cyanide pellets are placed in this container. A metal canister is on the floor under the container filled with a sulfuric acid solution. There are three executioners, and each executioner turns one key. When the three keys are turned, an electric switch causes the bottom of the cyanide container to open allowing the cyanide to fall into the sulfuric acid solution, producing a lethal gas. Unconsciousness can occur within a few seconds if the prisoner takes a deep breath. However, if he or she holds their breath death can take much longer, and the prisoner usually goes into wild convulsions. A heart monitor attached to the inmate is read in the control room, and after the warden pronounces the inmate dead, ammonia is pumped into the execution chamber to neutralize the gas. Exhaust fans then remove the inert fumes from the chamber into two scrubbers that contain water and serve as a neutralizing agent. The neutralizing process takes approximately 30 minutes from the time the offender's death is determined. Death is estimated to usually occur within 6 to 18 minutes of the lethal gas emissions. (See North Carolina Execution Procedures).

The most common problems encountered are the obvious agony suffered by the inmate and the length of time to cause death.

History: The use of a gas chamber for execution was inspired by the use of poisonous gas in World War I, as well as the popularity of the gas oven as a means of suicide. Nevada became the first state to adopt execution by lethal gas in 1924 and carried out the first execution in 1924. Since then it has served as the means of carrying out the death sentence 31 times. Lethal gas was seen as an improvement over other forms of execution, because it was less violent and did not disfigure or mutilate the body. The last execution by lethal gas took place in Arizona in 1999.

Current Application: Only 4 states, Arizona, California, Missouri, and Wyoming, currently authorize lethal gas as a method of execution, all as an alternative to lethal injection, depending upon the choice of the inmate, the date of the execution or sentence, or the possibility of lethal injection being held unconstitutional. Since the reinstatement of the death penalty in 1976, 11 of 1,389 (01.0%) convicted murderers executed were by the administration of lethal gas. Most recently, Walter LeGrand elected Lethal Gas in Arizona on March 3, 1999.

HANGING

Procedure: Prior to any execution, the gallows area trap door and release mechanisms are inspected for proper operation. The rope, which is of manila hemp of at least 3/4"and not more than 1 1/4"in diameter and approximately 30 feet in length, is soaked and then stretched while drying to eliminate any spring, stiffness, or tendency to coil. The hangman's knot, which is tied pursuant to military regulations, is treated with wax, soap, or clear oil, to ensure that the rope slides smoothly through the knot. The end of the rope which does not contain the noose is tied to a grommet in the ceiling and then is tied off to a metal T-shaped bracket, which takes the force delivered by the offender's drop.

Additionally, prior to an execution, the condemned offender's file is reviewed to determine if there are any unusual characteristics the offender possesses that might warrant deviation from field instructions on hanging. A physical examination and measuring process is conducted to assure almost instant death and a minimum of bruising. If careful measuring and planning is not done, strangulation, obstructed blood flow, or beheading could result. At the appropriate time on execution day, the inmate, in restraints, is escorted to the gallows area and is placed standing over a hinged trap door from which the offender will be dropped. Following the offender's last statement, a hood is placed over the offender's head. Restraints are also applied. If the offender refuses to stand or cannot stand, he is placed on a collapse board. A determination of the proper amount of the drop of the condemned offender through the trap door is calculated using a standard military execution chart for hanging. The "drop" must be based on the prisoner's weight, to deliver 1260 foot_pounds of force to the neck. The noose is then placed snugly around the convict's neck, behind his or her left ear, which will cause the neck to snap. The trap door then opens, and the convict drops. If properly done, death is caused by dislocation of the third and fourth cervical vertebrae, or by asphyxiation. A button mechanically releases the trap door and escorts then move to the lower floor location to assist in the removal of the offender's body. (See Washington Execution Procedures).

History: Hanging is the oldest method of execution in the United States, but fell into disfavor in the 20th century after many botched attempts, and was replaced by electrocution as the most common method. There have been only 3 executions by hanging since 1977: Westley Dodd (WA 1993), Charles Campbell (WA 1994), and Billy Bailey (DE 1996).

Current Application: Only 3 states, Delaware, New Hampshire, and Washington, currently authorize hanging as a method of execution, all as an alternative to lethal injection, depending upon the choice of the inmate, whether injection is impractical," or the possibility of lethal injection being held unconstitutional. Since the reinstatement of the death penalty in 1976, only 3 of 1,389 (0.3%) convicted murderers executed were by hanging. Most recently, Billy Bailey elected Hanging in Delaware on January 25, 1996.

FIRING SQUAD

Procedure: Shooting can be carried out by a single executioner who fires from short range at the back of the head or neck as in China. The traditional firing squad is made up of three to six shooters per prisoner who stand or kneel opposite the condemned who is usually tied to a chair or to a stake. Normally the shooters aim at the chest, since this is easier to hit than the head, causing rupture of the heart, great vessels, and lungs so that the condemned person dies of hemorrhage and shock. It is not unusual for the officer in charge to have to give the prisoner a pistol shot to the head to finish them off after the initial volley has failed to kill them.

The Utah statute authorizing execution by firing squad only provides: "If the judgment of death is to be carried out by shooting, the executive director of the department or his designee shall select a five-person firing squad of peace officers." At the appropriate time, the condemned offender is led to the execution area or chamber, which is used for both lethal injection and firing squad executions. The offender is placed in a specially designed chair which has a pan beneath it to catch and conceal blood and other fluids. Restraints are applied to the offender's arms, legs, chest and head. A head restraint is applied loosely around the offender's neck to hold his neck and head in an upright position. The offender is dressed in a dark blue outfit with a white cloth circle attached by Velcro to the area over the offender's heart. Behind the offender are sandbags to absorb the volley and prevent ricochets. Approximately 20 feet directly in front of the offender is a wall. This wall has firing ports for each member of the firing squad. The weapons used are 30_30 caliber rifles. No special ammunition is used. Following the offender's statement, a hood is placed over the offender's head. The warden leaves the room. The firing squad members stand in the firing position. They support their rifles on the platform rests. With their rifle barrels in the firing ports, the team members sight through open sights on the white cloth circle on the offender's chest. On the command to fire, the squad fires simultaneously. One squad member has a blank charge in his weapon but no member knows which member is designated to receive this blank charge. (See Utah Execution Procedures).

History: In recent history only three inmates have been executed by firing squad, all in Utah: Gary Gilmore (1977), John Albert Taylor, and Ronnie Lee Gardner (2010). While the method was popular with the military in times of war, there has been only one such execution since the Civil War: Private Eddie Slovak in WWII.

Current Application: Only 2 states, Oklahoma and Utah, currently authorize shooting as a method of execution, all as an alternative to lethal injection, depending upon the choice of the inmate, whether injection is impractical," or the possibility of lethal injection being held unconstitutional. Since the reinstatement of the death penalty in 1976, only 3 (0.2%) of the 1,389 convicted murderers executed were by firing squad. Most recently, Ronnie Lee Gardner elected a Firing Squad in Utah on June 18, 2010.

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In Indiana prior to 1913, all executions were by hanging. From 1913 through 1994, all executions were by electric chair. Since 1995, all executions have been by lethal injection. Current execution procedure is found at Indiana Code 35-38-6 and requires that the lethal injection execution take place inside the walls of the Indiana State Prison at Michigan City before sunrise.

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Top 10 Pro & Con Arguments - Death Penalty - ProCon.org

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Legality Life without Parole Deterrence Retribution Victims’ Families Methods of Execution Innocence Morality Medical Professionals’ Participation Federal Death Penalty 1. Legality The United States is one of 55 countries globally with a legal death penalty, according to Amnesty International. As of…

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The greatest costs associated with the death penalty occur prior to and during trial, not in post-conviction proceedings. Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences.

Trials in which the prosecutor is seeking a death sentence have two separate and distinct phases: conviction (guilt/innocence) and sentencing. Special motions and extra time for jury selection typically precede such trials.

More investigative costs are generally incurred in capital cases, particularly by the prosecution.

When death penalty trials result in a verdict less than death or are reversed, taxpayers first incur all the extra costs of capital pretrial and trial proceedings and must then also pay either for the cost of incarcerating the prisoner for life or the costs of a retrial (which often leads to a life sentence).

The death penalty diverts resources from genuine crime control measures. Spending money on the death penalty system means:

Reducing the resources available for crime prevention, mental health treatment, education and rehabilitation, meaningful victims' services, and drug treatment programs.

Diverting it from existing components of the criminal justice system, such as prosecutions of drug crimes, domestic violence, and child abuse.

Emergency services, creating jobs, and police & crime prevention were the three highest rated priorities for use of fiscal resources.

Schools/libraries, public health, and roads/transportation also ranked higher than the death penalty.

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Death Penalty Cost - Amnesty International USA

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The greatest costs associated with the death penalty occur prior to and during trial, not in post-conviction proceedings. Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences. Trials in which the prosecutor is seeking a death sentence have two separate and distinct phases: conviction (guilt/innocence) and sentencing.

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There is no way to tell how many of the [dpic get=“total_number_of_executions”] people executed since 1976 may also have been innocent. It is now broadly accepted that the judicial review provided to death-penalty cases in the United States has been inadequate to prevent the execution of at least…

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The death penalty adversely affects both families of murder victims and families of the accused, according to two recent journal articles. In his Psychology Today blog, Talking About Trauma, psychologist Dr. Robert T. Muller (pictured) reports that psychological studies have have found that the death penalty produces negative effects on families and friends of murder victims (referred to as "co-victims").

One University of Minnesota study found that just 2.5% of co-victims reported achieving closure as a result of capital punishment, while 20.1% said the execution did not help them heal. That may be because, as one co-victim described it, "Healing is a process, not an event." A 2012 Marquette University Law School study reported that co-victims had improved physical and psychological health and greater satisfaction with the legal system in cases where perpetrators received life sentences, rather than death sentences. The authors of that study said co-victims, "may prefer the finality of a life sentence and the obscurity into which the defendant will quickly fall, to the continued uncertainty and publicity of the death penalty."

Lula Redmond, a Florida therapist who works with family members of murder victims, said, "More often than not, families of murder victims do not experience the relief they expected to feel at the execution. Taking a life doesn't fill that void, but it's generally not until after the execution that families realize this."

A number of co-victims expressed sympathy for family members of the condemned, but the death penalty process also can polarize the families, obstructing healing for both. An article for the University of Michigan Journal of Law Reform by Professor Michael Radelet of the University of Colorado at Boulder describes the retributive effects of the death penalty on the family, friends, and attorneys of death row prisoners. Radelet compares these impacts to the effect of life without parole and argues "that the death penalty's added punishment over LWOP often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added impact disproportionately punishes women and children." These effects on people other than the inmate, he writes, "undermine the principle that the criminal justice system punishes only the guilty and never the innocent. The death penalty affects everyone who knows, cares for, or works with the death row inmate."

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studies: death penalty adversely affects families of victims and defendants

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STUDIES: Death Penalty Adversely Affects Families of Victims and Defendants

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Muller (pictured) reports that psychological studies have have found that the death penalty produces negative effects on families and friends of murder victims (referred to as "co-victims"). The authors of that study said co-victims, "may prefer the finality of a life sentence and the obscurity...

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The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information about capital punishment. Founded in 1990, the Center promotes informed discussion of the death penalty by preparing in-depth reports, conducting briefings for…

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The death penalty is not a proven deterrent to future murders.

Those who believe that deterrence justifies the execution of certain offenders bear the burden of proving that the death penalty is a deterrent. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison. The Ehrlich studies have been widely discredited. In fact, some criminologists, such as William Bowers of Northeastern University, maintain that the death penalty has the opposite effect: that is, society is brutalized by the use of the death penalty, and this increases the likelihood of more murder. Even most supporters of the death penalty now place little or no weight on deterrence as a serious justification for its continued use.
States in the United States that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the U.S. is compared to countries similar to it. The U.S., with the death penalty, has a higher murder rate than the countries of Europe or Canada, which do not use the death penalty.

The death penalty is not a deterrent because most people who commit murders either do not expect to be caught or do not carefully weigh the differences between a possible execution and life in prison before they act. Frequently, murders are committed in moments of passion or anger, or by criminals who are substance abusers and acted impulsively. As someone who presided over many of Texas's executions, former Texas Attorney General Jim Mattox has remarked, "It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you'll find that the murder was committed under severe drug and alcohol abuse."

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of life imprisonment. A survey of the former and present presidents of the country's top academic criminological societies found that 84% of these experts rejected the notion that research had demonstrated any deterrent effect from the death penalty .

Once in prison, those serving life sentences often settle into a routine and are less of a threat to commit violence than other prisoners. Moreover, most states now have a sentence of life without parole. Prisoners who are given this sentence will never be released. Thus, the safety of society can be assured without using the death penalty.

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Deterrence (In Opposition to the Death Penalty)

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The death penalty is not a proven deterrent to future murders. Those who believe that deterrence justifies the execution of certain offenders bear the burden of proving that the death penalty is a deterrent. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison.

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Who Was Ted Bundy?

Ted Bundy was a 1970s serial murderer, rapist and necrophiliac. He was executed in Florida's electric chair in 1989. His case has since inspired many novels and films about serial killers.

Ted Bundy's Parents and Siblings

Eleanor Louise Cowell, who went by Louise, was 22 years old and unmarried when she gave birth to her son Ted. Ted's father may have been Lloyd Marshall, an Air Force veteran and a Penn State graduate, according to Ann Rule, a coworker of Ted's and the author of the book The Stranger Beside Me. Other sources had Ted's father's name as Jack Worthington, while some rumors had it that his father was also his grandfather. Because Ted's birth certificate lists his father as "unknown," his biological father's identity may never be confirmed.

In 1951, Louise married Johnnie Bundy. While Ted took his name, he reportedly didn't have much respect for his stepfather, whom he resented for being too uneducated and working class. Johnnie and Louise had several children together.

Louise was working as a secretary at the University of Puget Sound and still married to Johnnie in the 1970s when Ted was accused of his crimes. She refused to believe the charges for years, although she changed her stance after he confessed.

Early Life

Bundy was born in Burlington, Vermont, on November 24, 1946. Bundy started life as his mother's secret shame, as his illegitimate birth humiliated her deeply religious parents. Louise delivered Ted at a home for unwed mothers in Vermont and later brought her son to her parents in Philadelphia.

To hide the fact he was an illegitimate child, Bundy was raised as the adopted son of his grandparents and was told that his mother was his sister. Eleanor moved with Bundy to Tacoma, Washington, a few years later, and soon married his stepfather Johnnie.

From all appearances, Bundy grew up in a content, working-class family. He showed an unusual interest in the macabre at an early age. Around the age of 3, he became fascinated by knives. A shy but bright child, Bundy did well in school but not with his peers.

As a teenager, a darker side of his character started to emerge. Bundy liked to peer in other people's windows and thought nothing of stealing things he wanted from other people.

Photo: Getty Images

Education

Bundy graduated from the University of Washington with a degree in psychology in 1972. He had been accepted to law school in Utah, although he would never earn his degree.

While a student at the University of Washington, Bundy fell in love with a wealthy, pretty young woman from California. She had everything that he wanted: money, class and influence. He was devastated by their breakup. Many of Bundy's later victims resembled his college girlfriend-attractive students with long, dark hair.

By the mid-1970s, Bundy had transformed himself, becoming more outwardly confident and active in social and political matters. He even got a letter of recommendation from the Republican governor of Washington after working on his campaign.
READ MORE: How Ted Bundy's Education Facilitated His Career as a Serial Killer
Victims

Bundy confessed to 36 killings of young women across several states in the 1970s, but experts believe that the final tally may be closer to 100 or more. The exact number of women Bundy killed will never been known. His killings usually followed a gruesome pattern: He often raped his victims before beating them to death.

While there is some debate as to when Bundy started killing, most sources say that he began his murderous rampage around 1974. Around this time, many women in the Seattle area and in nearby Oregon went missing. Stories circulated about some of the victims last being seen in the company of a young, dark-haired man known as "Ted." He often lured his victims into his car by pretending to be injured and asking for their help. Their kindness proved to be a fatal mistake.

How Ted Bundy Was Caught

In the fall of 1974, Bundy moved to Utah to attend law school, and women began disappearing there as well. The following year, he was pulled over by the police. A search of his vehicle uncovered a cache of burglary tools-a crowbar, a face mask, rope and handcuffs. He was arrested for possession of these tools and the police began to link him to much more sinister crimes.

In 1975, Bundy was arrested in the kidnapping of Carol DaRonch, one of the few women to escape his clutches. He was convicted and received a one-to-15-year jail sentence.

Prison Escapes

Bundy escaped from prison twice in 1977. The first time, he was indicted on murder charges for the death of a young Colorado woman and decided to act as his own lawyer in the case. During a trip to the courthouse library, he jumped out a window and made his first escape. He was captured eight days later.

In December, Bundy escaped from custody again. He climbed out of a hole he made in the ceiling of his cell, having dropped more than 30 pounds to fit through the small opening. Authorities did not discover that Bundy was missing for 15 hours, giving the serial killer a big head start on the police.

Chi Omega Sorority House Break-In

After Bundy's second escape from prison, he eventually made his way to Tallahassee, Florida. On the night of January 14, 1978, Bundy broke into the Chi Omega sorority house at Florida State University. He attacked four of the young female residents, killing two of them. On February 9, Bundy kidnapped and murdered a 12-year-old girl named Kimberly Leach.

These crimes marked the end of his murderous rampage, as he was soon pulled over by the police that February.

The most damning evidence connecting Bundy to the two Chi Omega murders at FSU were bite marks on one of the bodies, which were a definitive match to Bundy.

DOWNLOAD BIOGRAPHY'S TED BUNDY FACT CARD

Trial

Bundy's good looks, charm and intelligence made him something of a celebrity during his trial. Bundy fought for his life but was convicted and spent nine years on death row appealing his death sentence.

Conviction, Death Sentences and Appeals

In July 1979, Bundy was convicted for the the two Chi Omega murders at FSU. He was given the death penalty twice. He received another death sentence in 1980 for the murder of Kimberly Leach.

Bundy appealed, trying to take his case as high as the U.S. Supreme Court, but he was turned down. He also offered information on some of unsolved murders to avoid Florida's electric chair, but he could not delay justice forever and was executed in 1989.

Elizabeth Kloepfer, Ted Bundy's Girlfriend

In 1969, Bundy began a six-year relationship with Elizabeth Kloepfer, whom he met in a Seattle bar. Kloepfer was a single mom of a young daughter and struggled with alcoholism. Bundy took care of her, and she said he was "warm and loving."

By 1974, Kloepfer started to suspect Bundy's crimes. When she questioned him about odd behaviors, like keeping a meat cleaver in his desk, he used his charm to deflect her concerns.

Kloepfer secretly went to the police with her suspicion of Bundy's involvement in prominent local murders, but they didn't believe he was the killer. The pair remained together, although they grew distant when Bundy moved to Olympia the following year.

In 1975, Kloepfer went to police again, this time with evidence that helped them to arrest the serial killer. Bundy had confessed to Kloepfer over the phone from his prison cell that he had tried to kill her and couldn't resist his impulses when he felt "his sickness building in him," she later wrote. She broke ties with Bundy for good and wrote a book about her experience.

Photo: Bettmann/Corbis/Getty Images

Wife and Daughter

In February 1980, Bundy married Carole Ann Boone, a mother-of-two whom he'd dated before his initial arrest, in a courtroom during the penalty phase of his trial. He proposed and she accepted in the presence of the judge, making the marriage legitimate in Florida. The couple had met six years earlier when they both worked at the Department of Emergency Services in Olympia, Washington.

Boone gave birth to a daughter, Rose, in 1982, and she named Bundy as the father. Not much is known about Rose today.

Boone eventually realized Bundy was guilty of the crimes. She divorced him three years prior to his execution, according to Rule's book, A Stranger Beside Me. Boone stopped visiting Bundy during the last two years of his imprisonment.

Death

On January 24, 1989, Bundy was executed around 7 a.m. at the Florida State Prison in an electric chair sometimes known as "Old Sparky." Outside the prison, crowds cheered and even set off fireworks after Bundy's execution.

Bundy's body was cremated in Gainesville, and no public ceremony was held. Before he was executed he requested his ashes be scattered in the Cascade Mountains of Washington State, where he murdered at least four of his victims.

Bundy in Popular Culture

Movies

An infamous national figure since his Florida trials, Bundy's life has been the subject of countless books and documentaries trying to shed light on this brutal killer's crimes. Well-known movies include:

The Deliberate Stranger was a 1986 television movie featuring actor Mark Harmon as Bundy.

Extremely Wicked, Shockingly Evil and Vile debuted in 2019 at the Sundance film festival, with Zac Efron as Bundy and Lily Collins as Kloepfer. The film's title comes from Judge Edward Cowart's post-sentencing remarks to Bundy.

Conversations with a Killer: The Ted Bundy Tapes was released that same year. The documentary features archival footage and audio recordings of Bundy made on death row along with present-day interviews.

Books

Several notable books have been published on Bundy's crimes, including:

The Stranger Beside Me: Ted Bundy the Shocking Inside Story, published in 1980 by Rule, a coworker of Bundy's at a crisis hotline. Rule describes how she gradually realized Bundy was a serial killer and then draws from their ongoing correspondence, which lasted until just shortly before Bundy's execution.

The Phantom Prince: My Life with Ted Bundy was written by Bundy's ex-girlfriend Kloepfer about dating and loving a serial killer. It was published in 1981, while he was on death row.

Ted Bundy: Conversations with a Killer, published in 1989 by author Stephen Michaud and journalist Hugh Aynesworth, this collection of stories was created from more than 150 hours of interviews with Bundy.

Defending the Devil: My Story as Ted Bundy's Last Lawyer, published in 1994, was written by Polly Nelson, a newly-minted lawyer who was offered Bundy's case pro-bono by the Washington, D.C. law firm where she worked just weeks before he was scheduled to be executed.

I Survived Ted Bundy: The Attack, Escape & PTSD That Changed My Life, published in 2016 by Rhonda Stapley, who was brutally attacked by Bundy in Utah in 1974 but survived and, after battling PTSD, wrote a book about her experience.

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Ted Bundy was a 1970s serial murderer, rapist and necrophiliac. He was executed in Florida's electric chair in 1989. His case has since inspired many novels and films about serial killers. Eleanor Louise Cowell, who went by Louise, was 22 years old and unmarried when she gave birth to her son Ted.

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Who Was Timothy McVeigh?

Raised in Pendleton, New York, Timothy McVeigh developed an interest in guns and his separatist leanings as a bullied teenager. He served with distinction in the Persian Gulf War, but grew increasingly disillusioned with the U.S. government after his discharge. Following months of planning, on April 19, 1995, McVeigh detonated explosives outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, resulting in 168 casualties and another several hundred wounded victims. McVeigh was apprehended shortly after the bombing and was executed by lethal injection on June 11, 2001.

Early Life

Timothy James McVeigh was born on April 23, 1968, in Lockport, New York, and grew up nearby in the working-class town of Pendleton. After his parents divorced, he lived with his father and developed an interest in guns through target practice sessions with his grandfather. It was during this time he read The Turner Diaries, an anti-government tome by neo-Nazi William Pierce. The book described a bombing of a federal building and fueled McVeigh's paranoia about a government plot to repeal the Second Amendment.

Tall, skinny and quiet, McVeigh was bullied as a teenager. He was also very bright, even earning a partial college scholarship after graduating from high school in 1986, though he only briefly attended a business school before dropping out.

In 1988, McVeigh enlisted in the U.S. Army and became a model soldier, earning the Bronze Star for bravery in the Persian Gulf War. He received an invitation to try out for the Army's special forces but gave up after only two days, and was discharged in 1991.

McVeigh initially returned to New York but soon took up a peripatetic lifestyle as he followed the gun show circuit, selling weapons and preaching the evils of the government. He periodically spent time with Army buddies Terry Nichols and Michael Fortier, who shared McVeigh's passion for guns and hatred of federal authority.

Rising Anger

Two events involving the FBI's actions against separatists added fuel to McVeigh's anger toward the government. First, in the summer of 1992, white separatist Randy Weaver was engaged in a standoff with government agents at his cabin in Ruby Ridge, Idaho. He was suspected of selling illegal sawed-off shotguns. The siege resulted in the death of Weaver's son and wife.

Then, in April 1993, federal agents surrounded the Texas compound of a religious organization called the Branch Davidians to arrest their leader, David Koresh, on illegal weapons charges. On April 19, McVeigh watched on television as the FBI stormed the compound, resulting in a firestorm that killed dozens of Branch Davidians, including children.

Oklahoma City Bombing

In September 1994, McVeigh put into motion his plan to destroy the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. With accomplices Nichols and Fortier, McVeigh acquired tons of ammonium nitrate fertilizer and gallons of fuel to form a highly volatile explosive. McVeigh chose the Murrah Federal Building because it provided excellent camera angles for media coverage. He wanted to make this attack a platform for his anti-government message.

On the morning of April 19, 1995, the second anniversary of the FBI siege on the Branch Davidian compound, McVeigh parked a Ryder truck loaded with the explosive substance in front of the Murray building. People were coming to work and on the second floor, children were arriving at the day-care center. At 9:02 a.m., the explosion ripped the entire north wall off the building, destroying all nine floors. More than 300 other buildings in the immediate area were damaged or destroyed. In the rubble were 168 victims, including 19 young children, and another 650-plus wounded.

Arrest, Trial and Execution

Early reports suggested that a Middle Eastern terrorist group may have been responsible, but within days, McVeigh was considered the primary suspect. He was already in jail, having been pulled over shortly after the bombing for a license plate violation, during which time he was found to be carrying an illegally concealed handgun. Nichols soon surrendered to authorities, and the two were indicted for the bombing in August.

Following a five-week-long trial that began in April 1997, McVeigh was convicted after 23 hours of deliberation, and he was sentenced to death. The following year, Nichols was sentenced to life in prison.

While on death row, McVeigh was interviewed for a biography, American Terrorist, by Lou Michel and Dan Herbeck. McVeigh spoke of the bombing with some pride, referring to the young victims as "collateral damage." Meanwhile, his requests for an appeal and a new trial were rejected.

On June 11, 2001, following an attempted stay of execution, federal prison authorities placed a needle in McVeigh's right leg and pumped a deadly stream of drugs into his veins. He died within minutes, and his body was cremated.

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Raised in Pendleton, New York, Timothy McVeigh developed an interest in guns and his separatist leanings as a bullied teenager. He served with distinction in the Persian Gulf War, but grew increasingly disillusioned with the U.S. government after his discharge. Following months of planning, on April 19, 1995, McVeigh detonated explosives outside the Alfred P.

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8 Ways People With Disabilities Can Be Vulnerable to Wrongful Conviction

For Disability Pride Month, we're taking a look at how people with disabilities can face unique challenges that hinder their ability to effectively participate in the criminal legal system.

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We work to free the innocent, prevent wrongful convictions, and create fair, compassionate, and equitable systems of justice for everyone.

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Executions

"With each development in the technology of execution, the same promises have been made, that each new technology was safe, reliable, effective and humane. Those claims have not generally been fulfilled." ‑Austin Sarat

It is estimated that 3% of U.S. executions in the period from 1890 to 2010 were botched. In the 2014 book, Gruesome Spectacles: Botched Executions and America's Death Penalty, Austin Sarat, a professor of jurisprudence and political science at Amherst College, describes the history of flawed executions in the U.S. during that period. Sarat reports that over those 120 years, 8,776 people were executed and 276 of those executions (3.15%) went wrong in some way. Lethal injection had the highest rate of botched executions. In his book, he defines a botched execution as follows:

Botched executions occur when there is a breakdown in, or departure from, the "protocol" for a particular method of execution. The protocol can be established by the norms, expectations, and advertised virtues of each method or by the government's officially adopted execution guidelines. Botched executions are "those involving unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner." Examples of such problems include, among other things, inmates catching fire while being electrocuted, being strangled during hangings (instead of having their necks broken), and being administered the wrong dosages of specific drugs for lethal injections.

A report in the Salt Lake City Tribune takes a different view of the suggestion that there have been no botched executions by firing squad since 1890. The paper reports that in September 1951, a Utah firing squad shot Eliseo J. Mares in the hip and abdomen and that it was "several minutes" before he was declared dead. Utah's May 16, 1879 firing-squad execution of Wallace Wilkerson also was botched. See Botched Executions in American History.

Examples of Post-Furman Botched Executions

List compiled by:

Prof. Michael L. Radelet
University of Colorado
[email protected]

Last addition: March 1, 2018

NOTE: The cases below are not presented as a comprehensive catalogue of all botched executions, but simply a listing of examples that are well-known. There are 51 executions or attempted executions listed: 2 by asphyxiation, 10 by electrocution, and 39 by lethal injection, including 3 failed executions that were halted when execution personnel were unable to set an IV line.

1. August 10, 1982. Virginia. Frank J. Coppola. Electrocution. Although no media representatives witnessed the execution and no details were ever released by the Virginia Department of Corrections, an attorney who was present later stated that it took two 55-second jolts of electricity to kill Coppola. The second jolt produced the odor and sizzling sound of burning flesh, and Coppola's head and leg caught on fire. Smoke filled the death chamber from floor to ceiling with a smoky haze.[1]

2. April 22, 1983. Alabama. John Evans. Electrocution. After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans's leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans's left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans's lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans's body charred and smoldering.[2]

3. Sept. 2, 1983. Mississippi. Jimmy Lee Gray. Asphyxiation. Officials had to clear the room eight minutes after the gas was released when Gray's desperate gasps for air repulsed witnesses. His attorney, Dennis Balske of Montgomery, Alabama, criticized state officials for clearing the room when the inmate was still alive. Said noted death penalty defense attorney David Bruck, "Jimmy Lee Gray died banging his head against a steel pole in the gas chamber while the reporters counted his moans (eleven, according to the Associated Press)."[3] Later it was revealed that the executioner, Barry Bruce, was drunk.[4]

4. December 12, 1984. Georgia. Alpha Otis Stephens. Electrocution. "The first charge of electricity ... failed to kill him, and he struggled to breathe for eight minutes before a second charge carried out his death sentence ..."[5] After the first two minute power surge, there was a six minute pause so his body could cool before physicians could examine him (and declare that another jolt was needed). During that six-minute interval, Stephens took 23 breaths. A Georgia prison official said, "Stephens was just not a conductor" of electricity.[6]

5. March 13, 1985. Texas. Stephen Peter Morin. Lethal Injection. The Associated Press reported that, because of Morin's history of drug abuse, the execution technicians were forced to probe both of Morin's arms and one of his legs with needles for nearly 45 minutes before they found a suitable vein.[7]

6. October 16, 1985. Indiana. William E. Vandiver. Electrocution. After the first administration of 2,300 volts, Vandiver was still breathing. The execution eventually took 17 minutes and five jolts of electricity.[8] Vandiver's attorney, Herbert Shaps, witnessed the execution and observed smoke and the smell of burning. He called the execution "outrageous." The Department of Corrections admitted the execution "did not go according to plan."[9]

7. August 20, 1986. Texas. Randy Woolls. Lethal Injection. A drug addict, Woolls helped the execution technicians find a useable vein for the execution.[10]

8. June 24, 1987. Texas. Elliot Rod Johnson. Lethal Injection. Because of collapsed veins, it took nearly an hour to complete the execution.[11]

9. December 13, 1988. Texas. Raymond Landry. Lethal Injection. Pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutes after the drugs first started flowing into his arms.[12] Two minutes after the drugs were administered, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. The curtain separating the witnesses from the inmate was then pulled, and not reopened for fourteen minutes while the execution team reinserted the catheter into the vein. Witnesses reported "at least one groan." A spokesman for the Texas Department of Correction, Charles Brown (sic), said, "There was something of a delay in the execution because of what officials called a 'blowout.' The syringe came out of the vein, and the warden ordered the (execution) team to reinsert the catheter into the vein."[13]

10. May 24, 1989. Texas. Stephen McCoy. Lethal Injection. He had such a violent physical reaction to the drugs (heaving chest, gasping, choking, back arching off the gurney, etc.) that one of the witnesses (male) fainted, crashing into and knocking over another witness. Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyze a chain reaction. The Texas Attorney General admitted the inmate "seemed to have had a somewhat stronger reaction," adding, "The drugs might have been administered in a heavier dose or more rapidly."[14]

11. July 14, 1989. Alabama. Horace Franklin Dunkins, Jr. Electrocution. It took two jolts of electricity, nine minutes apart, to complete the execution. After the first jolt failed to kill the prisoner (who was mildly retarded), the captain of the prison guard opened the door to the witness room and stated "I believe we've got the jacks on wrong."[15] Because the cables had been connected improperly, it was impossible to dispense sufficient current to cause death. The cables were reconnected before a second jolt was administered. Death was pronounced 19 minutes after the first electric charge. At a post-execution news conference, Alabama Prison Commissioner Morris Thigpen said, "I regret very very much what happened. [The cause] was human error."[16]

12. May 4, 1990. Florida. Jesse Joseph Tafero. Electrocution. During the execution, six-inch flames erupted from Tafero's head, and three jolts of power were required to stop his breathing. State officials claimed that the botched execution was caused by "inadvertent human error" - the inappropriate substitution of a synthetic sponge for a natural sponge that had been used in previous executions.[17] They attempted to support this theory by sticking a part of a synthetic sponge into a "common household toaster" and observing that it smoldered and caught fire.[18]

13. September 12, 1990. Illinois. Charles Walker. Lethal Injection. Because of equipment failure and human error, Walker suffered excruciating pain during his execution. According to Gary Sutterfield, an engineer from the Missouri State Prison who was retained by the State of Illinois to assist with Walker's execution, a kink in the plastic tubing going into Walker's arm stopped the deadly chemicals from reaching Walker. In addition, the intravenous needle was inserted pointing at Walker's fingers instead of his heart, prolonging the execution.[19]

14. October 17, 1990. Virginia. Wilbert Lee Evans. Electrocution. When Evans was hit with the first burst of electricity, blood spewed from the right side of the mask on Evans's face, drenching Evans's shirt with blood and causing a sizzling sound as blood dripped from his lips. Evans continued to moan before a second jolt of electricity was applied. The autopsy concluded that Evans suffered a bloody nose after the voltage surge elevated his high blood pressure.[20]

15. August 22, 1991. Virginia. Derick Lynn Peterson. Electrocution. After the first cycle of electricity was applied, and again four minutes later, prison physician David Barnes inspected Peterson's neck and checked him with a stethoscope, announcing each time "He has not expired." Seven and one-half minutes after the first attempt to kill the inmate, a second cycle of electricity was applied. Prison officials later announced that in the future they would routinely administer two cycles before checking for a heartbeat.[21]

16. January 24, 1992. Arkansas. Rickey Ray Rector. Lethal Injection. It took medical staff more than 50 minutes to find a suitable vein in Rector's arm. Witnesses were kept behind a drawn curtain and not permitted to view this scene, but reported hearing Rector's eight loud moans throughout the process. During the ordeal Rector (who suffered from serious brain damage) helped the medical personnel find a vein. The administrator of State's Department of Corrections medical programs said (paraphrased by a newspaper reporter) "the moans did come as a team of two medical people that had grown to five worked on both sides of his body to find a vein." The administrator said "That may have contributed to his occasional outbursts." The difficulty in finding a suitable vein was later attributed to Rector's bulk and his regular use of antipsychotic medication.[22]

17. April 6, 1992. Arizona. Donald Eugene Harding. Asphyxiation. Death was not pronounced until 10 1/2 minutes after the cyanide tablets were dropped.[23] During the execution, Harding thrashed and struggled violently against the restraining straps. A television journalist who witnessed the execution, Cameron Harper, said that Harding's spasms and jerks lasted 6 minutes and 37 seconds. "Obviously, this man was suffering. This was a violent death ... an ugly event. We put animals to death more humanely."[24] Another witness, newspaper reporter Carla McClain, said, "Harding's death was extremely violent. He was in great pain. I heard him gasp and moan. I saw his body turn from red to purple."[25] One reporter who witnessed the execution suffered from insomnia and assorted illnesses for several weeks; two others were "walking vegetables" for several days.[26]

18. March 10, 1992. Oklahoma. Robyn Lee Parks. Lethal Injection. Parks had a violent reaction to the drugs used in the lethal injection. Two minutes after the drugs were dispensed, the muscles in his jaw, neck, and abdomen began to react spasmodically for approximately 45 seconds. Parks continued to gasp and violently gag until death came, some eleven minutes after the drugs were first administered. Tulsa World reporter Wayne Greene wrote that the execution looked "painful," "scary and ugly." "It was overwhelming, stunning, disturbing - an intrusion into a moment so personal that reporters, taught for years that intrusion is their business, had trouble looking each other in the eyes after it was over."[27]

19. April 23, 1992. Texas. Billy Wayne White. Lethal Injection. White was pronounced dead some 47 minutes after being strapped to the execution gurney. The delay was caused by difficulty finding a vein; White had a long history of heroin abuse. During the execution, White attempted to assist the authorities in finding a suitable vein.[28]

20. May 7, 1992. Texas. Justin Lee May. Lethal Injection. May had an unusually violent reaction to the lethal drugs. According to one reporter who witnessed the execution, May "gasped, coughed and reared against his heavy leather restraints, coughing once again before his body froze ...."[29] Associated Press reporter Michael Graczyk wrote, "Compared to other recent executions in Texas, May's reaction to the drugs was more violent. He went into a coughing spasm, groaned and gasped, lifted his head from the death chamber gurney and would have arched his back if he had not been belted down. After he stopped breathing, his eyes and mouth remained open."[30]

21. May 10, 1994. Illinois. John Wayne Gacy. Lethal Injection. After the execution began, the lethal chemicals unexpectedly solidified, clogging the IV tube that led into Gacy's arm, and prohibiting any further passage. Blinds covering the window through which witnesses observed the execution were drawn, and the execution team replaced the clogged tube with a new one. Ten minutes later, the blinds were then reopened and the execution process resumed. It took 18 minutes to complete.[31] Anesthesiologists blamed the problem on the inexperience of prison officials who were conducting the execution, saying that proper procedures taught in "IV 101" would have prevented the error.[32]

22. May 3, 1995. Missouri. Emmitt Foster. Lethal Injection. Seven minutes after the lethal chemicals began to flow into Foster's arm, the execution was halted when the chemicals stopped circulating. With Foster gasping and convulsing, the blinds were drawn so the witnesses could not view the scene. Death was pronounced thirty minutes after the execution began, and three minutes later the blinds were reopened so the witnesses could view the corpse.[33] According to William "Mal" Gum, the Washington County Coroner who pronounced death, the problem was caused by the tightness of the leather straps that bound Foster to the execution gurney; it was so tight that the flow of chemicals into the veins was restricted. Foster did not die until several minutes after a prison worker finally loosened the straps. The coroner entered the death chamber twenty minutes after the execution began, diagnosed the problem, and told the officials to loosen the strap so the execution could proceed.[34] In an editorial, the St. Louis Post-Dispatch called the execution "a particularly sordid chapter in Missouri's capital punishment experience."[35]

23. January 23, 1996. Virginia. Richard Townes, Jr. Lethal Injection. This execution was delayed for 22 minutes while medical personnel struggled to find a vein large enough for the needle. After unsuccessful attempts to insert the needle through the arms, the needle was finally inserted through the top of Mr. Townes's right foot.[36]

24. July 18, 1996. Indiana. Tommie J. Smith. Lethal Injection. Because of unusually small veins, it took one hour and nine minutes for Smith to be pronounced dead after the execution team began sticking needles into his body. For sixteen minutes, the execution team failed to find adequate veins, and then a physician was called.[37] Smith was given a local anesthetic and the physician twice attempted to insert the tube in Smith's neck. When that failed, an angio-catheter was inserted in Smith's foot. Only then were witnesses permitted to view the process. The lethal drugs were finally injected into Smith 49 minutes after the first attempts, and it took another 20 minutes before death was pronounced.[38]

25. March 25, 1997. Florida. Pedro Medina. Electrocution. A crown of foot-high flames shot from the headpiece during the execution, filling the execution chamber with a stench of thick smoke and gagging the two dozen official witnesses. An official then threw a switch to manually cut off the power and prematurely end the two-minute cycle of 2,000 volts. Medina's chest continued to heave until the flames stopped and death came.[39] After the execution, prison officials blamed the fire on a corroded copper screen in the headpiece of the electric chair, but two experts hired by the governor later concluded that the fire was caused by the improper application of a sponge (designed to conduct electricity) to Medina's head.

26. May 8, 1997. Oklahoma. Scott Dawn Carpenter. Lethal Injection. Carpenter was pronounced dead some 11 minutes after the lethal injection was administered. As the drugs took effect, Carpenter began to gasp and shake. "This was followed by a guttural sound, multiple spasms and gasping for air" until his body stopped moving, three minutes later.[40]

27. June 13, 1997. South Carolina. Michael Eugene Elkins. Lethal Injection. Because Elkins's body had become swollen from liver and spleen problems, it took nearly an hour to find a suitable vein for the insertion of the catheter. Elkins tried to assist the executioners, asking "Should I lean my head down a little bit?" as they probed for a vein. After numerous failures, a usable vein was finally found in Elkins's neck.[41]

28. April 23, 1998. Texas. Joseph Cannon. Lethal Injection. It took two attempts to complete the execution. After making his final statement, the execution process began. A vein in Cannon's arm collapsed and the needle popped out. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, "It's come undone." Officials then pulled a curtain to block the view of the witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed.[42]

29. August 26, 1998. Texas. Genaro Ruiz Camacho. Lethal Injection. The execution was delayed approximately two hours due, in part, to problems finding suitable veins in Camacho's arms.[43]

30. October 5, 1998. Nevada. Roderick Abeyta. Lethal Injection. It took 25 minutes for the execution team to find a vein suitable for the lethal injection.[44]

31. July 8, 1999. Florida. Allen Lee Davis. Electrocution. "Before he was pronounced dead ... the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair."[45] His execution was the first in Florida's new electric chair, built especially so it could accommodate a man Davis's size (approximately 350 pounds). Later, when another Florida death row inmate challenged the constitutionality of the electric chair, Florida Supreme Court Justice Leander Shaw commented that "the color photos of Davis depict a man who - for all appearances - was brutally tortured to death by the citizens of Florida."[46] Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina (q.v.), calling the three executions "barbaric spectacles" and "acts more befitting a violent murderer than a civilized state."[47] Justice Shaw included pictures of Davis's dead body in his opinion.[48] The execution was witnessed by a Florida State Senator, Ginny Brown-Waite, who at first was "shocked" to see the blood, until she realized that the blood was forming the shape of a cross and that it was a message from God saying he supported the execution.[49] (See Photos taken after execution-graphic images).

32. May 3, 2000. Arkansas. Christina Marie Riggs. Lethal Injection. Riggs dropped her appeals and asked to be executed. However, the execution was delayed for 18 minutes when prison staff couldn't find a suitable vein in her elbows. Finally, Riggs agreed to the executioners' requests to have the needles in her wrists.[50]

33. June 8, 2000. Florida. Bennie Demps. Lethal Injection. It took execution technicians 33 minutes to find suitable veins for the execution. "They butchered me back there," said Demps in his final statement. "I was in a lot of pain. They cut me in the groin; they cut me in the leg. I was bleeding profusely. This is not an execution, it is murder." The executioners had no unusual problems finding one vein, but because Florida protocol requires a second alternate intravenous drip, they continued to work to insert another needle, finally abandoning the effort after their prolonged failures.[51]

34. December 7, 2000. Texas. Claude Jones. Lethal Injection. Jones was a former intravenous drug abuser. His execution was delayed 30 minutes while the execution team struggled to insert an IV into a vein. One member of the execution team commented, "They had to stick him about five times. They finally put it in his leg." Jim Willett, the warden of the Walls Unit and the man responsible for conducting the execution, wrote: "The medical team could not find a vein. Now I was really beginning to worry. If you can't stick a vein then a cut-down has to be performed. I have never seen one and would just as soon go through the rest of my career the same way. Just when I was really getting worried, one of the medical people hit a vein in the left leg. Inside calf to be exact. The executioner had warned me not to panic as it was going to take a while to get the fluids in the body of the inmate tonight because he was going to push the drugs through very slowly. Finally, the drug took effect and Jones took his last breath."[52]

35. June 28, 2000. Missouri. Bert Leroy Hunter. Lethal Injection. Hunter had an unusual reaction to the lethal drugs, repeatedly coughing and gasping for air before he lapsed into unconsciousness.[53] An attorney who witnessed the execution reported that Hunter had "violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth like this repeatedly. ... He suffered a violent and agonizing death."[54] However, three reporters who witnessed the execution did not substantiate these observations, with two reporting that Hunter simply coughed several times and the third stating that he saw no violent reaction to the drugs. [55]

36. November 7, 2001. Georgia. Jose High. Lethal Injection. High was pronounced dead some one hour and nine minutes after the execution began. After attempting to find a useable vein for "15 to 20 minutes," the emergency medical technicians under contract to do the execution abandoned their efforts. Eventually, one needle was stuck in High's hand, and a physician was called in to insert a second needle between his shoulder and neck.[56]

37. May 2, 2006. Ohio. Joseph L. Clark. Lethal Injection. It took 22 minutes for the execution technicians to find a vein suitable for insertion of the catheter. But three or four minutes thereafter, as the vein collapsed and Clark's arm began to swell, he raised his head off the gurney and said five times, "It don't work. It don't work." The curtains surrounding the gurney were then closed while the technicians worked for 30 minutes to find another vein. Media witnesses later reported that they heard "moaning, crying out and guttural noises."[57] Finally, death was pronounced almost 90 minutes after the execution began. A spokeswoman for the Ohio Department of Corrections told reporters that the execution team included paramedics, but not a physician or a nurse.[58]

38. December 13, 2006. Florida. Angel Diaz. Lethal Injection. After the first injection was administered, Mr. Diaz continued to move, and was squinting and grimacing as he tried to mouth words. A second dose was then administered, and 34 minutes passed before Mr. Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Mr. Diaz had some sort of liver disease.[59] After performing an autopsy, the Medical Examiner, Dr. William Hamilton, stated that Mr. Diaz's liver was undamaged, but that the IV catheters (which had been inserted in both arms) had gone through Mr. Diaz's veins and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein. Two days after the execution, Governor Jeb Bush temporarily suspended all executions in the state and appointed a commission "to consider the humanity and constitutionality of lethal injections."[60] In 2014, pictures from the autopsy of Mr. Diaz's body, along with a long article describing his painful death, were published in THE NEW REPUBLIC.[61]

39. May 24, 2007. Ohio. Christopher Newton. Lethal Injection. According to the Associated Press, "prison medical staff" at the Southern Ohio Correctional Facility struggled to find veins on each of Newton's arms during the execution. Newton, who weighted 265 pounds, was declared dead almost two hours after the execution process began. The execution "team" stuck Newton at least ten times with needles before getting the shunts in place were the needles are injected.[62]

40. June 26, 2007. Georgia. John Hightower. Lethal Injection. It took approximately 40 minutes for the nurses to find a suitable vein to administer the lethal chemicals, and death was not pronounced until 7:59, 59 minutes after the execution process began.[63]

41. June 4, 2008. Georgia. Curtis Osborne. Lethal Injection. After a 55-minute delay while the U.S. Supreme Court reviewed his final appeal, prison medical staff began the execution by trying to find suitable veins in which to insert the IV. The executioners struggled for 35 minutes to find a vein, and it took 14 minutes after the fatal drugs were administered before death was pronounced by two physicians who were inside the death chamber.[64]

42. Sept. 15, 2009. Ohio. Romell Broom (pictured, after execution attempt). Attempted Lethal Injection. Efforts to find a suitable vein and to execute Mr. Broom were terminated after more than two hours when the executioners were unable to find a useable vein in Mr. Broom's arms or legs. During the failed efforts, Mr. Broom winced and grimaced with pain. After the first hour's lack of success, on several occasions Broom tried to help the executioners find a good vein. "At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.[65] Finally, Ohio Governor Ted Strickland ordered the execution to stop, and announced plans to attempt the execution anew after a one-week delay so that physicians could be consulted for advice on how the man could be killed more efficiently.[66] The executioners blamed the problems on Mr. Broom's history of intravenous drug use. As of March 1, 2018, Mr. Broom remained on Ohio's death row.

43. Sept. 27, 2010. Georgia. Brandon Joseph Rhode. Lethal Injection. After the Supreme Court rejected his appeals, "Medics then tried for about 30 minutes to find a vein to inject the three-drug concoction." It then took 14 minutes for the lethal drugs to kill him. The execution had been delayed six days because a prison guard had given Rhode a razor blade, which Rhode used to attempt suicide.[67]

44. Jan. 16, 2014. Ohio. Dennis McGuire. Lethal Injection. McGuire gasped for air for some 25 minutes while the drugs used in the execution, hydromorphone and midazolam, slowly took effect. Witnesses reported that after the drugs were injected, McGuire was struggling, with his stomach heaving and fist clenched, making "horrible" snorting and choking sounds.[68] In a lawsuit filed after the execution, Mr. McGuire's family alleged that the inmate experienced "repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain," the lawsuit said. "It looked and sounded as though he was suffocating."[69]

45. April 29, 2014. Oklahoma. Clayton D. Lockett. Lethal Injection. Despite prolonged litigation and numerous warnings from defense attorneys about the dangers of using an experimental drug protocol with the drug midazolam, Oklahoma went ahead and scheduled the executions of Clayton Lockett and Charles Warner. Plans for the execution and the drugs used were cloaked in secrecy, with the state refusing to release information about the source and efficacy of the lethal drugs, making it impossible to accurately predict the effects of the combination of drugs. Nonetheless, Oklahoma Governor Mary Fallon pressured the Courts to allow the execution, a bill was introduced in the Oklahoma House of Representatives to impeach the Justices who had voted to stay the execution, and the state Supreme Court allowed the executions to go forward.

Mr. Lockett was the first who was scheduled to die. An hour before the execution began, the governor was notified that the executioner (a "phlebotomist") was having problems finding a usable vein, but she did not intervene. After an hour, a vein was finally found in Mr. Lockett's "groin area," and the execution went forward. Ten minutes after the administration of the first drug, a sedative, the physician supervising the process (whose very presence violated ethical standards of several medical organizations) announced that the inmate was unconscious, and therefore ready to receive the other two drugs that would actually kill him. Those two drugs were known to cause excruciating pain if the recipient was conscious. However, Mr. Lockett was not unconscious. Three minutes after the latter two drugs were injected, "he began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow."[70] Officials then lowered the blinds to prohibit witnesses from seeing what was going on, and 15 minutes later the witnesses were ordered to leave the room.

Twenty minutes after the first drugs were administered, the Director the Oklahoma Department of Corrections halted the execution, and issued a two-week stay (later extended by extensive litigation) for the execution of Mr. Warner. Mr. Lockett died 43 minutes after the execution began, of a heart attack, while still in the execution chamber.[71]

46. July 23, 2014. Arizona. Joseph R. Wood. Lethal Injection. After the chemicals (midazolam and hydromorphone) were injected, Mr. Wood repeatedly gasped for one hour and 40 minutes before death was pronounced. During the ordeal, Mr. Wood's attorneys filed an emergency appeal to a Federal District Court and placed a phone call to Supreme Court Justice Anthony Kennedy in a failed effort to halt the botched execution. Meanwhile, a spokesperson for the Arizona Attorney General's office claimed that Mr. Wood was asleep and was simply snoring. In the days before the execution, defense attorneys won a stay from the U.S. Court of Appeals for the Ninth Circuit on their motion to compel the state to reveal the source of the drugs and the training of the executioners. However, this stay was later overturned by the Supreme Court.[72] A reporter for the Arizona Republic who witnessed the execution, Michael Kiefer, said that he counted 640 gasps from Wood before he finally died.[73]

47. December 9, 2015. Georgia. Brian Keith Terrell. Lethal Injection. "[I]t took an hour for the nurse assigned to the execution to get IVs inserted into both of the condemned man's arms. She eventually had to put one into Terrell's right hand. Terrell winced several times, apparently in pain."[74]

48. February 3, 2016. Georgia. Brandon Jones. Lethal Injection. After spending 24 minutes unsuccessfully trying to insert an IV into Jones' left arm, the executioners spent 8 minutes trying to insert it in his right arm, and when that failed they again attempted to insert it in his left arm. They then asked a physician to violate several codes of medical ethics for assistance, and he or she spent 13 minutes inserting and stitching the IV near Jones' groin. Six minutes later, Jones' eyes popped open. He was 72 years old at the time of his execution.[75]

49. December 8, 2016. Alabama. Ronald Bert Smith, Jr. Lethal Injection. Smith (a former Eagle Scout and Army reservist) was convicted of a 1994 murder of a convenience store clerk, and his jury at trial (after anti-death penalty citizens were removed) voted 7-5 to recommend a punishment of life imprisonment without parole. Alabama, however, requires neither unanimity nor a majority jury vote before the trial judge can sentence a defendant to death. Smith heaved, gasped and coughed while struggling for breath for 13 minutes after the lethal drugs were administered, and death was pronounced 34 minutes after the execution began. He also "clenched his fists and raised his head during the early part of the procedure." Alabama used the controversial sedative midazolam (a "valium-like drug") in the execution.[76]

50. November 15, 2017. Ohio. Alva Campbell. Lethal Injection. "The execution team first worked on both of Alva Campbell's arms for about 30 minutes Wednesday while he was on a gurney in the state's death chamber and then tried to find a vein in his right leg below the knee. ... About 80 minutes after the execution was scheduled to begin, the 69-year-old Campbell shook hands with two guards after it appeared the insertion was successful. About two minutes later, media witnesses were told to leave without being told what was happening. ... Gary Mohr, head of the Ohio Department of Rehabilitation and Correction, ... [then] called off the execution after talking with the medical team [saying] 'It was my decision that it was not likely that we're going to access veins.' ... Prison officials brought Campbell into the death chamber in a wheelchair and provided him a wedge pillow on the gurney, which was meant to help him breathe. Campbell has suffered from breathing problems related to a longtime smoking habit. His attorneys said he has required a walker, relied on a colostomy bag and needed breathing treatments four times a day." [77]

51. February 22, 2018. Alabama. Doyle Lee Hamm. Lethal Injection (failed). Despite several warnings from defense counsel that it would be impossible to find a vein in which to insert the catheter (Hamm suffered from advanced lymphatic cancer and carcinoma), the State went forward with the execution. For 2.5 hours, the executioners tried to find a vein, leaving Hamm with a ten-twelve puncture marks, including six in his groin and others that punctured his bladder and penetrated his femoral artery. Finally, approaching a midnight deadline that prohibited further attempts, the execution was called off. Alabama Corrections Commissioner Jeff Dunn later told reporters, "I wouldn't necessarily characterize what we had tonight as a problem."[78] [NOTE: On March 5, 2018, attorneys for Doyle Hamm submitted a preliminary report from an anesthesiologist who evaluted Hamm on February 25. WARNING: Report contains graphic images and descriptions.]

Sources

ENDNOTES

[25]. Id.

[47]. Id.

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Executions "With each devel­op­ment in the tech­nol­o­gy of exe­cu­tion, the same promis­es have been made, that each new tech­nol­o­gy was safe, reli­able, effec­tive and humane. Those claims have not gen­er­al­ly been ful­filled." ‑Austin Sarat It is estimated that 3% of U.S. executions in the period from 1890 to 2010 were botched.

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expert: 5 ways to improve the u.s. death penalty system - cnn

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Expert: 5 ways to improve the U.S. death penalty system - CNN

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In a perfect world of course, there would be no serious predatory crime, and thus no need nor call to respond to it.