Sentencing and Corrections - The Death Penalty

percent capital court row

Executions in the United States had been dropping for decades since their height of some 200 a year in the late 1930s. By the 1960s capital punishment was seldom used at all. (See Figure 6.1.) In 1972 the U.S. Supreme Court ruled the death penalty unconstitutional as it was then administered by the states. But in 1976 the Court approved revised capital punishment laws. Since that time, the number of persons under sentence of death has risen from less than 500 to over 3,500. (See Figure 6.2.)

Thirty-eight states and the federal government had laws sanctioning the death penalty in 2004. Of those, 37 states and the federal government allowed the use of lethal injection, and one state (Nebraska) required electrocution as the means of execution. The states that authorized the death penalty by lethal injection were: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, FIGURE 6.2
Persons under death sentence, 1953–2002
New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming. Although New York law authorizes the use of lethal injection, in June 2004 the state's highest court ruled that the state's sentencing laws were unconstitutional and instructed the state legislature to revise sentencing laws or death penalty sentences in New York would be invalid. In addition to lethal injection, ten states permit the use of electrocution, five states allow the use of the gas chamber, and three states permit the use of a firing squad. New Hampshire and Washington permit hanging as a means of execution. In April 2004, 3,487 inmates were on death row in the United States.

According to the Bureau of Justice Statistics, of the 3,557 prisoners under sentence of death at the end of 2002, 98.6 percent were male and 1.4 percent were female. Slightly more than half (54.2 percent) were white, 43.6 percent were African-American, and 2.2 percent of prisoners under death sentence were of other races, including 27 who were self-identified as American Indian and 33 who identified themselves as Asian. Over half of death row inmates (51.8 percent) had dropped out of school by the 11th grade, while 38.5 percent were high school graduates or had completed the GED equivalency, and 9.7 percent had attended college. Some 54.3 percent of death row prisoners had never married, compared to 22.1 percent who were married and 20.8 percent who were divorced or separated. (See Table 6.2.) In 2002, 71 people (69 men and two women) were executed in the United States. Of those, 53 were white and 18 were African-American. Lethal injection was used in 70 of the executions in 2002, while electrocution was used in one execution.

Demographic characteristics of prisoners under death sentence, 1953–2002

Prisoners under sentence of death, 2002
Characteristic Yearend Admissions Removals
Total number under sentence of death 3,557 159 179
Male 98.6% 96.9% 97.2%
Female 1.4 3.1 2.8
White 54.3% 52.2% 67.0%
Black 43.7 45.9 31.8
All other races* 2.0 1.9 1.2
Hispanic origin
Hispanic 11.5% 14.9% 9.5%
Non-Hispanic 88.5 85.1 90.5
8th grade or less 14.7% 21.4% 14.5%
9th-11th grade 37.1 34.9 36.2
High school graduate/GED 38.5 37.3 36.2
Any college 9.7 6.3 13.1
Median 11th 11th 11th
Marital status
Married 22.1% 25.8% 23.9%
Divorced/separated 20.8 16.7 22.0
Widowed 2.8 6.8 3.1
Never married 54.3 50.7 50.9
Note: Calculations are based on those cases for which data were reported.
Missing data by category were as follows:
Yearend Admissions Removals
Hispanic origin 399 38 21
Education 511 33 27
Marital status 342 27 20
*At yearend 2001, other races consisted of 27 American Indians, 32 Asians, and 12 self-identified Hispanics. During 2002, 2 Asians and 1 American Indian were admitted; and 1 Asian and 1 American Indian were removed.
SOURCE: Thomas P. Bonczar and Tracy L. Snell, "Table 5: Demographic Characteristics of Prisoners under Sentence of Death, 2002," in "Capital Punishment, 2002," Bureau of Justice Statistics Bulletin, November 2003

Most prisoners on death row at the end of 2002 were repeat offenders, with 59.5 percent having prior felony convictions. However, of those, only 7.8 percent had prior homicide convictions. Some 15.6 percent of death row inmates committed their capital offense while on parole, 9.4 percent while on probation, and 6.7 percent while there were other charges pending against them. Fifty-four percent of death row inmates at year end, 2002, reported that they had no pending legal status at the time of their capital offense.

According to "Capital Punishment 2002" by Thomas P. Bonczar and Tracy L. Snell (Bureau of Justice Statistics Bulletin, November 2003), between 1977 and 2002 some 6,532 persons were under the sentence of death in the United States. Of those, some 12.5 percent (820) were executed and 38.8 percent either died of natural causes or had their death sentences lifted and received other dispositions. During that time period, 66.3 percent of the 820 executions occurred in five states—Texas (289), Virginia (87), Missouri (59), Oklahoma (55), and Florida (54). In 2002, 33 executions were carried out in Texas, accounting for 46.4 percent of the 71 executions carried out in the United States.

Proponents of the Death Penalty

Some supporters of the death penalty, as a deterrent, look back to 1966 when there was a virtual moratorium on execution at the state level and the murder rate began to increase (by 1980 it was more than twice the 1963 rate). Along with this trend, there was an upswing in the number of felony murders as compared to crimes of passion. By the mid-1990s, when the number of executions had increased, the murder rate dropped again (as it did in the 1930s, when both homicides and executions were at their highest point in national history). Even though the absence of capital punishment does not alone cause murder rates to rise, supporters say, it still plays a major role. Further, they argue, no other punishment can substitute for execution as a deterrent because even life sentences often end early in parole or pardon. Recidivism can occur after release; and innocent victims outnumber prisoners wrongfully executed.

A second reason frequently cited for support of the death penalty is its function as retribution. This satisfies an emotional need for victims' loved ones, meets the demands of certain moral codes, and contributes to a sort of social cohesiveness (by allowing law-abiding persons to band together and show their support of shared values). Those who feel that punishment should be "proportional" argue that nothing less than the murderer's own death fits the crime of homicide.

Death penalty proponents do not believe that execution methods used in civilized nations like the United States are barbaric. They also point to capital punishment's continuation in most of the Western world until the 1950s and the support it has even today in European countries where it has been abolished. They contend that the Eighth Amendment's prohibition against cruel and unusual punishment does not extend to execution and was never intended to be interpreted that way. In Furman v. Georgia (1976), the U.S. Supreme Court found only that the death penalty was used fairly. Plus, they add, the American legal system includes an appeals process, which can stretch on for years after the imposition of a death sentence. Out of 453 prisoners on death row in Texas, for example, only 33 were executed in 2002. Advocates for the death penalty further argue that more capital cases are overturned because of judicial error than due to defendants' innocence.

Troubling Questions

Studies done by the Gallup Poll in 2000 show that though the death penalty is still supported by the majority of Americans (66 percent), support has dropped since its peak in 1994 (80 percent). In the same poll, some 91 percent of respondents said they believed that in the past 20 years at least one person sentenced to death was innocent. These opinions probably have something to do with publicity surrounding several death penalty convictions being overturned due to newly obtained DNA evidence. Other issues, such as erroneous eyewitness accounts, false confessions and testimony, and police or prosecutorial misconduct, have called into question the fairness of capital punishment trials and sentencing of death row inmates.

In Oklahoma in 2001 the discovery of the possible false testimony of state witness forensic chemist, Joyce Gilchrist, left dozens of cases in question. In September 2001 the Department of Justice released a study that documented that race and geography play a role in who is sentenced to death, echoing the findings of several other independent studies across the nation. In Texas, lawyers of 43 inmates who received the death penalty were later sanctioned for misconduct or even disbarred, according to the Chicago Tribune. According to the American Civil Liberties Union (ACLU), nationally there was a 68 percent rate of serious error in death penalty trials.

Because of questions brought about by these cases, several states that allowed the death penalty imposed moratoriums on executions until studies were completed. In Illinois in 2000 Republican Governor George Ryan declared a moratorium after 13 inmates on death row were found innocent within a few months. He put together a commission to review the state's system and offer suggestions for improvements. In April of 2002, 85 changes, including reducing the number of capital crimes, videotaping police interrogations, forbidding capital punishment in cases where the conviction is based solely on the testimony of a single eyewitness, and increasing competent counsel protections, were recommended by the commission. In January 2003 Governor Ryan commuted the sentences of all death row inmates in Illinois to prison time. In May 2002 Democratic Governor Parris Glendening of Maryland, also declared a moratorium until a study could be completed by the University of Maryland in September 2002, and the state legislature had time to review the results.

According to The Innocence Project, a nonprofit legal clinic at the Benjamin N. Cardozo School of Law, from the reinstatement of the death penalty in 1976, until June 24, 2002, 108 people on death row had been exonerated from the crimes for which they had been sentenced to death. The American Bar Association asked for a moratorium on the death penalty in 1997. In 2001 Senators Russell Feingold (D-WI) and Jesse Jackson Jr. (D-IL), proposed the "National Death Penalty Moratorium Act of 2001" (S. 233), calling for a moratorium on the federal death penalty and a federal independent commission on problems within the system.

The Execution of Mentally Retarded Criminals

On June 20, 2002, the United States Supreme Court ruled in favor of Virginia death row inmate Daryl Renard Atkins, who is mentally retarded, and declared that the execution of mentally retarded individuals is unconstitutional. The court, in a 6–3 vote, held that such executions constituted a violation of the Eighth Amendment's ban against cruel and unusual punishment. Until this ruling, some 20 states allowed the execution of mentally retarded persons who were convicted of capital crimes.

In writing for the majority of the court, Justice John Paul Stevens held, "This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purpose served by the death penalty.… Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability."

In their dissent, Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas expressed the view that the court went too far in its ruling, which effectively opens the door for inmates with IQs of 70 or less to appeal their death sentences.

Juries Must Decide

In 1972 a U.S. Supreme Court ruling about the constitutionality of capital punishment brought the nation's executions to a halt. The court's decision on Furman v. Georgia stated that state death penalty statutes lacked standards and gave too much discretion to individual judges and to juries. After states addressed some of the issues troubling the court, including mandatory death sentences for some crimes, the court ruled in 1976, in Gregg v. Georgia, that the death penalty was constitutional.

This decision did not address individual states' laws about who determined sentencing for capital offenses. However, on June 24, 2002, the U.S. Supreme Court ruled that juries, not judges, must make the final determination to impose the death penalty in a capital case. The ruling, written by Justice Ruth Bader Ginsburg, held that a sentence imposed by a judge violates a defendant's constitutional right to a trial by jury. Joining Justice Ginsburg were Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter, and Clarence Thomas. Justice Stephen Breyer agreed with the majority in a separate opinion. Justice Sandra Day O'Connor wrote the dissenting opinion and was joined by Chief Justice William H. Rehnquist.

The seven to two ruling, which involved the case of an Arizona death row inmate, overturns at least 150 death penalty sentences (not the guilty verdicts) and could potentially affect over 800 death sentences nationwide. The ruling affects all cases in Arizona, Idaho, and Montana, where a single judge was allowed to decide whether to impose the death penalty. The cases will have to be reconsidered in six other states: Colorado and Nebraska, where panels of judges made sentencing decisions, and Florida,

Prisoners under jurisdiction of state or federal correctional authorities, by region and jurisdiction, year end 2001–02

Total Percent change
Region and jurisdiction 12/31/01 6/30/02 12/31/01 12/31/01–06/30/02 6/30/02–12/31/02
U.S. total 1,440,655 1,423,095 1,404,032 2.6% 1.2%
Federal 163,528 161,681 156,993 4.2 1.1
State 1,277,127 1,261,414 1,247,039 2.4 1.2
Northeast 175,907 175,118 172,599 1.9% 0.5%
Connecticut1 20,720 20,243 19,196 7.9 2.4
Maine 1,900 1,841 1,704 11.5 3.2
Massachusetts 10,329 10,620 10,588 −2.4 −2.7
New Hampshire 2,451 2,476 2,392 2.5 −1.0
New Jersey 27,891 28,054 28,142 −0.9 −0.6
New York 67,065 67,131 67,533 −0.7 −0.1
Pennsylvania 40,168 39,275 38,062 5.5 2.3
Rhode Island1 3,520 3,694 3,241 8.6 −4.7
Vermont1 1,863 1,784 1,741 7.0 4.4
Midwest 245,303 243,876 240,679 1.9% 0.6%
Illinois 42,693 43,142 44,348 −3.7 −1.0
Indiana 21,611 21,425 20,966 3.1 0.9
Iowa2 8,398 8,172 7,962 5.5 2.8
Kansas 8,935 8,758 8,577 4.2 2.0
Michigan 50,591 49,961 48,849 3.6 1.3
Minnesota 7,129 6,958 6,606 7.9 2.5
Missouri 30,099 30,034 28,757 4.7 0.2
Nebraska 4,058 4,031 3,937 3.1 0.7
North Dakota 1,112 1,168 1,111 0.1 −4.8
Ohio 45,646 45,349 45,281 0.8 0.7
South Dakota 2,898 2,900 2,790 3.9 −0.1
Wisconsin 22,133 21,978 21,495 3.0 0.7

Alabama, Indiana, and Delaware, where a jury can recommend a sentence of death, but a judge ultimately decided on the penalty. The Supreme Court did not decide how the ruling would affect each state. It is possible that the death row inmates' sentences could be commuted to life in prison, or that the inmates could be resentenced, facing the death penalty sentence again.

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