Let’s Talk About the Death Penalty

Post by Sarah Gully (Hart Graduate School, ’21) and Kyle Ford (JMU ’21, Economics)

STATES THAT HAVE THE DEATH PENALTY (28) -Alabama -Arizona -Arkansas -California -Florida -Georgia -Idaho -Indiana -Kansas -Kentucky -Louisiana -Mississippi -Missouri -Montana -Nebraska- Nevada -North Carolina -Ohio -Oklahoma -Oregon -Pennsylvania -South Carolina -South Dakota -Tennessee -Texas -Utah -Virginia -Wyoming -U.S. Gov’t -U.S. Military

STATES THAT DO NOT HAVE THE DEATH PENALTY (22) -Alaska -Colorado -Connecticut -Delaware -Hawaii -Illinois -Iowa -Maine -Maryland -Massachusetts -Michigan -Minnesota -New Hampshire† -New Jersey -New Mexico -New York -North Dakota -Rhode Island -Vermont -Washington -West Virginia -Wisconsin -District of Columbia-† 1 prisoner remains on death row.

NUMBER OF EXECUTIONS SINCE 1976: 1531

 

 

 

 

 

Race of Defendants Executed: White: 854 Black: 522 Hispanic: 129 Other: 26

Juveniles: In 2005, the Supreme Court ruling in Roper v. Simmons struck down the death penalty for juveniles. Since 1976, 22 defendants had been executed for offenses committed as juveniles.

Women: There were 51 women on death row as of October 1, 2020. This constitutes less than 2% of the total death row population. (NAACP Legal Defense Fund, October 1, 2020). 17 women have been executed since 1976.

Death Row Exonerations By State Total: 174

Since 1973, more than 170 people have been released from death row with evidence of their innocence. (Staff Report, House Judiciary Subcommittee on Civil & Constitutional Rights, 1993, with updates by DPIC).

An average of 3.5 wrongly convicted death-row prisoners have been exonerated each year since 1973, peaking at 7.6 per year between 1999–2004.

PUBLIC OPINION AND THE DEATH PENALTY

Gallup has been tracking public opinion on the death penalty since 1937. Support for the death penalty has ebbed and flowed over time as shown this graphic.

Gallup has also asked Americans about the morality of the death penalty. Although the majority still respond that the death penalty is morally acceptable, over time, there has been an increase in the percentage of Americans who think the death penalty is morally wrong, 40% in May 2020.

Pew Research Center has found a widening gap by partisan identification in support for the death penalty. About three-quarters of Republicans (77%) currently favor the death penalty, compared with 52% of independents and 35% of Democrats.

Pew has also found that support for the death penalty has long been divided by gender and race. In the new survey, about six-in-ten men (61%) say they are in favor of the death penalty and 34% are opposed. Women’s views are more divided: 46% favor the death penalty, while 45% oppose it.

A 59% majority of whites favor the death penalty for those convicted of murder, compared with 47% of Hispanics and 36% of blacks.

Major Arguments Summarized

For Death Penalty	Against Death Penalty
Morality
The punishment must fit the crime, and that the taking of life deserves the loss of one’s life.	We cannot be the arbiters of life unless serious bodily injury or death is imminent. The taking of life, even as punishment, is still murder.
Constitutionality
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.	The death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law.
Deterrence
Studies have found that the death penalty does have a deterrent effect.	Scientific studies have found that the death penalty does not have a deterrent effect.
Irrevocable Mistakes
The due process and trial by jury create an exhaustive and fair trial that severely limits the possibility of an innocent person being executed.	Innocent people are too often sentenced to death.  Since 1973, over 156 people have been released from death rows in 26 states because of innocence.
Cost of Death vs. Life in Prison
The cost of the execution itself is not the issue, the issue is the decades of appeals leading up to the execution. Also, many cost studies are performed by opponents of the death penalty and are incomplete.	Because of its severity, death row and execution costs are an economic burden on government budgets. It’s more cost-effective to commute death penalties to life imprisonment sentences without parole.
Race
The racial breakdown for those sentenced to death since the 1970s does not suggest that there is a racial bias.	The application of the death penalty in capital murder cases has proved to be discriminatory in its nature. According to the Death Penalty Information Center, juries in some states are three times more likely to hand down a death penalty for a black offender than a white offender. The race of the victim matters as well.
Attorney Quality
The past few decades have seen the establishment of public defender systems that in many cases rival some of the best lawyers retained privately. Many of the best firms offer pro bono counsel in capital cases.	Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases.

Major Court Rulings & Laws in the Last 50 Years

• June 1972 – In Furman v. Georgia, the Supreme Court effectively voided 40 death penalty statutes and suspended the death penalty.
• 1976 – In Gregg v. Georgia, the Supreme Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances.
• January 17, 1977 – Ten-year moratorium on executions ends with the execution of Gary Gilmore by firing squad in Utah.
• 1977 – In Coker v. Georgia, the Supreme Court ruled that the death penalty is an unconstitutional punishment for the rape of an adult woman when the victim is not killed.
• 1986 – In Ford v. Wainwright,  the Supreme Court ruled that executing an insane inmate violated the Eighth Amendment.
• 1986 – In Batson v. Kentucky, Justice Powell held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it “undermines public confidence in the fairness of our system of justice.
• 1987 – In McCleskey v. Kemp, the Supreme Court ruled racial disparities not recognized as a constitutional violation of “equal protection of the law” unless intentional racial discrimination against the defendant can be shown.
• 1988 – In Thompson v. Oklahoma, the Supreme Court ruled that executions of offenders age sixteen and younger at the time of their crimes are unconstitutional.
• 1989 – In Stanford v. Kentucky and Wilkins v. Missouri, the Supreme Court ruled that the Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen.
• 1989 – In Penry v. Lynaugh, the Supreme Court ruled that executing persons who are intellectually disabled (“retarded” in the Court’s words) is not a violation of the Eighth Amendment.
• 1993 – In Herrera v. Collins, conservative justices of the Supreme Court ruled there was no basis in text, tradition, or contemporary practice for finding a constitutional right to demand consideration of new evidence of innocence.
• 1994 – President Clinton signed into the law the Violent Crime Control and Law Enforcement Act expanding the federal death penalty.
• 1996 – President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act restricting review in federal courts.
• 2002 – In Ring v. Arizona, the Supreme Court ruled that the death sentence where the necessary aggravating factors are determined by a judge violates a defendant’s Constitutional right to a trial by jury.
• 2002 – In Atkins v. Virginia, the Supreme Court held that executions of intellectually disabled (“mentally retarded” in the Court’s words) criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment’s ban on cruel and unusual punishment.
• March 2005 – In Roper V. Simmons, the Supreme Court ruled that the death penalty for those who had committed their crimes under 18 years of age was cruel and unusual punishment.
•  June 2008 – In Kennedy v. Louisiana, the Supreme Court ruled that capital punishment cannot apply to those convicted of child rape where no death occurs.

Recent History

• President Donald Trump’s Justice Department resumed federal executions in 2020 following a 17-year hiatus.
• No president in more than 120 years has overseen as many federal executions.
• The number of federal death sentences carried out under Trump since 2020 is more than in the previous 56 years combined, reducing the number of prisoners on federal death row by nearly a quarter.
• Five people were executed in the run-up to President Joe Biden’s inauguration – breaking with a 130-year-old precedent of pausing executions amid a presidential transition.
• Early Saturday, January 16, 2021, the Trump administration carried out its 13th federal execution since July 2020, an unprecedented run that concluded just five days before the inauguration of President Joe Biden.

Discussion Questions

1. Why are some states more likely to use the death penalty than others?
2. How does the application of the death disproportionately affect different demographics?
3. What factors might contribute to changes in public opinion about the death penalty over time?
4. Why are there demographic differences in support of the death penalty?
5. Why has the Supreme Court played such an important role in determining the conditutions under which death penalty is used?
6. What are ways you might contribute to addressing this issue?