Volume 3, Issue 1, 2012
Public Opinion’s Affect on Capital Punishment in the United States
Georgie Ann Weatherby, Ph.D., Associate Professor, Gonzaga University, weatherb@gonzaga.edu
Peter Cangany, Gonzaga University Criminal Justice Graduate, Gonzaga University, pcangay@gonzaga.edu
Andre Labossiere, Gonzaga University Criminal Justice Graduate, Gonzaga University, alabossi@gonzaga.edu
Brandon Clark, Gonzaga University Criminal Justice Graduate, Gonzaga University, bclark3@gonzaga.edu
Abstract
This research aims to discover how public opinion has swayed case law throughout United States history by
examining major historical turning points (such as wars and disasters) as well as analyses of secondary sources
pertaining to the issues at hand. It can then be determined whether the opinion of the public has played a broad role
in the maturity of U.S. ideals in regard to capital punishment. Furthermore, this study examines the evolving
standards of decency which recent Supreme Court cases (*Atkins v. Virginia* (2002) & *Roper v. Simmons* (2005))
have set as a statute. Specific case law has been identified back to 1878, but *Furman v. Georgia's* (1972) essential
predicate ruling is seen as the beginning of the progressive capital punishment movement. To be precise, this
investigation will assess how and why public opinion on capital punishment in the U.S. has and continues to influence
case law.
Introduction
th
Capital punishment has been a long standing penalty in the United States since the nation’s founding in the late 18
century. The death penalty has been and continues to be defended on the grounds in which society has the ethical
responsibility to protect the welfare and security of its citizens from the heinous crimes which justify such a sentence.
However, in the present culture mankind has formed in this country, our society has created a substantially more
progressive attitude than our forefathers could have imagined. This newfound progressive attitude led a degree of
public opinion to denounce capital punishment as barbaric; moreover, asserting that society has the moral obligation
to protect life, not destroy it. The Eighth Amendment to the United States Constitution prohibits “cruel and unusual
punishment,” and leaves the term loosely defined enabling courts to specify the law.
In a 2002 Supreme Court case, Atkins v. Virginia, the Supreme Court voted 6-3 overturning a previous ruling to
execute a mentally handicapped person for capital murder during an abduction and armed robbery. Supreme Court
Justice Paul Stevens gave the High Court’s opinion, “executions of mentally retarded criminals are ‘cruel and unusual
punishments’ prohibited by the Eighth Amendment.” A deeper insight into Justice Stevens’ opinion finds the State of
Virginia in violation of the Eighth Amendment “in the light of our evolving standards of decency.” A 2005 Supreme
Court Case, Roper v. Simmons, cited the 2002 case in the sense of “evolving standards of decency” as well as their
own opinion as the Court pointed to “overwhelming” international opinion against juvenile executions.
There are many factors which may influence court opinions; evidence, testimony, nature of a crime, and demeanor of
plaintiffs or defendants. Public opinion however is the most intriguing influence because while it is rarely noticed, its
impression is felt. This study will be aimed at discovering how public opinion has swayed case law throughout United
States history by examining major historical turning points as well as analyses of news articles pertaining to the issue
and opinion editorials of major newspapers. It can then be determined whether the opinion of the public has played a
major role in the maturity of the United State’s ideals in regard to capital punishment.
This paper will focus primarily on the Anomie, Functionalist, and Conflict theories to assess how society’s opinions on
capital punishment have influenced the laws and regulations set forth by the United States government throughout
history.
Anomie theory as proposed by Emile Durkheim explains deviant behavior as a “lack of regulation [or] a breakdown of
norms.” In this sense, anomie theory can help explain how ideas and norms of society have adapted throughout
different time periods in United States history. Criminal execution methods (i.e. hanging) were seen as ‘normal’ when
the United States was founded but the same method put into action today would be seen as inhumane, primitive, and
uncivilized because the public opinion of what is ‘normal’ has changed. This is evident in capital punishment case
law which has progressed and matured since this nation’s founding. No longer can a person be executed for such
trivial offenses as stealing, or cutting down a tree (Randa, 1997).
Functionalist theory “interprets each part of society as contributing to the stability of the whole” (Anderson, et al.,
2001: 20). According to functionalist theory, behavior in a society is structural, and the rules and regulations that
govern people’s lives organize their relationships. Conflict theory, which “emphasizes the role of coercion and
power… in producing social order,” explains how a society functions so that each individual or group struggles to
maximize their benefits, which ultimately leads to new political changes and revolutions (Anderson, et al., 2001).
Furthermore, this study examines exactly what ‘evolving standards of decency’ encompasses. To be precise, it will
assess how and why public opinion of capital punishment in the United States has and continues to influence case
law. The Constitution identifies justice to be blind; however this study shows how public opinion transforms authority
into justice.
Literature Review
Functionalist Theory
Emile Durkheim’s interpretation of Functionalist theory explains the belief, “as a powerful, self-conscious entity
controlling the behavior of its individual members, society can perpetuate the social conditions of its own existence”
(Pope, 1975). In other words, the behavior of a society is structural and rules and regulations organize the
relationships within that society. When applying the Functionalist Theory to our society today, in terms of capital
punishment, it becomes evident that there may be a distinct connection between the Functionalist Theory and why
the American public tends to be in favor of the death penalty. “Literature suggests that people with similar
characteristics think about political issues in different ways depending on their social environment” (Soss, Langbein
and Metelko, 2003). Those who have received a high level of education, or a high annual or family income are going
to tend to feel the same way about certain issues as the other people in their social class, and likewise for those who
have had less educational opportunities, or have a lower annual income. In one study, findings have suggested that
the American public opinion is often times shaped directly by the actions and statements of our political leaders
(Vidmart and Ellsworth, 1974).
The commonality of death penalty opinions within a given social group or class are more often than not, shaped by
personal experiences that social group or class are often faced with. For example, “people who favor capital
punishment are more likely to be people who are threatened by rising crime rates and who fear victimization”
(Vidmart et al., 1974). Similarly, acts of violence that are directed at members of a dominant group in society, by
members of a subordinate group, are likely to face very severe, negative punishments. This trend coincides with the
functionalist belief in a social hierarchy, and that those most victimized are the most in favor of swift, severe
punishments, as in the death penalty (Mitchell and Sidanius, 1995).
Conflict Theory
Conflict Theory is the belief that society functions so that every group struggles to maximize their benefits, which
ultimately lead to political changes and revolutions. “The more economically stratified a society becomes, the more it
becomes necessary for dominant groups to enforce through coercion the norms of conduct that guarantee their
supremacy (Chambliss and Seidman, 1980: 33; Jacobs and Carmichael, 2002). When applied to capital punishment
laws in the United States, the laws that are passed tend to favor the thoughts and needs of a specific group of
people, mainly the powerful and the victimized. The mid-to-upper class in our country has an advantage to sway
politician’s stances on important issues, and have those same politicians impose policies that will be beneficial to
themselves as well as everyone else that makes up their social class. “The United States has frail political parties, a
weak bureaucracy, and democratically accountable state governments that decide many important criminal justice
policies, and this gives the U.S public more control over social policy than citizens of a more centralized democracy”
(Jacobs et al., 2002). In the case of such politically polarizing issues, it is extremely difficult for politicians to make
policies that go against what the general public wants.
Anomie Theory
Robert Merton explained the third theory, Anomie, in 1938, when he published his thesis entitled “Social Structure
and Anomie.” He proposed that crime rates could be explained by examining the cultural and social structure of
society. He postulated that crime rates could be explained by focusing on the cultural goals stressed by the
American society (Bjerregaard and Cochran, 2008). Throughout history, the society’s behavior and the things they
believe in have been ever changing, because social norms change. What was popular decades ago is no longer instyle because the United States, and the people whom inhabit it, have changed, grown and require different needs.
This is also true of public opinion’s on capital punishment. Two-hundred years ago, people felt that punishment by
death was acceptable for crimes which today are considered to be misdemeanors. Today’s justice system contains
numerous restrictions and requires a long, meticulous process in order for someone to be sentenced to death. “The
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legal and political viability of capital punishment hinges on both its consequences in practice and its meaning in the
public mind” (Soss, et al., 2003).
Social Dominance Theory
“Social Dominance theory is a social psychological theory of group conflict which describes human society as
consisting of oppressive group-based hierarchical structures.” (Mitchell and Sidanius, et al., 995) Mitchell and
Sidanius go on to explain:
“Since it is known that African- and Hispanic-Americans are much more likely to be victims of capital crime
than are Euro- and Asian-Americans, then everything else being equal, one should expect blacks and
Hispanics to be significantly more supportive of the death penalty. However, the exact opposite is found to
be the case. Data tend to indicate that, even controlling other important demographic factors, whites are
significantly stronger supporters of the death penalty than are blacks and Hispanics” (See Appendix A),
(Mitchell and Sidanius, et al., 1995).
Multiple scholarly studies have mirrored Mitchell and Sidanius’s political-socio-ideas by explaining capital punishment
advocacy is one aspect of general political-social-ideology rather than a response to crime related concerns or
experiences (Tyler and Weber, 1982). Tyler and Weber explain, the instrumental and symbolic perspectives on public
support for the death penalty were directly compared within the context of a single survey of citizen attitudes. The
results suggest that both instrumental and symbolic concerns influenced death penalty support. When the relative
influence of the two factors was directly assessed, the symbolic perspective was found to exercise the major
influence upon support for capital punishment, while the influence of instrumental crime-related concerns was small.
The outcome of the study shows that death penalty promotion is one aspect of general political-social-ideology, rather
than a response to crime-related concerns or experiences.
Previous research also shows attitudes toward the death penalty affect both interpretation and threshold of
reasonable doubt; two studies were conducted to find out why:
“In Study 1, eligible jurors viewed a videotape showing conflicting testimony by a prosecution and defense
witness in an assault case. “Death-qualified” subjects (those permitted to serve on capital juries) interpreted
testimony in a manner more favorable to the prosecution than “excludable” subjects (those excluded from
serving on juries in capital cases due to their opposition to the death penalty), suggesting that differing
interpretations of evidence may mediate the relationship between attitudes toward the death penalty and
verdicts. In Study 2, the same jurors indicated their reactions to a number of hypothetical situations in which
a jury had convicted an innocent defendant or acquitted a guilty one. “Death qualified” subjects expressed
less regret concerning erroneous convictions and more regret concerning erroneous acquittals than
“excludable” subjects. Theoretical interpretations of this pattern of results suggest that “death qualified”
subjects may have a lower threshold of conviction than “excludable” subjects; thus the relationship between
attitudes toward the death penalty and verdicts may also be mediated by differing thresholds of conviction”
(Thompson, Cowan, and Ellsworth, 1984).
These studies prove that juror’s opinions also change the use of the death penalty. Society shapes their opinions,
showing that it isn’t just policy that is affected by public opinions; theoretical interpretation is also a factor in its
practice.
Public Opinion Polls
The Stanford Law Review published a study engaging how legislators defend their positions based on public opinion
polls. More commonly known, Weems v. United States (1910) stated, “the meaning of things would change as society
became more enlightened.” A study of Gallup Polls from 1936 through 1969 shows a steady decrease in public
support for the capital punishment (See Appendix B). Many thought this trend proved the Supreme Court’s decision
in Weems v. United States to be correct; the meaning of cruel and unusual punishment defined by the 8th
Amendment would be expanded to include capital punishment once society became more enlightened on its
concerns over human interest and social justice. The trend in decreased support for the death penalty in Gallup Polls
began to shift after 1969, beginning a new trend of support for criminal executions. One in-particular poll on capital
punishment reached as high as 59% claiming to be in favor of capital punishment.
According to Vidmar, (et al., 1974), these statistics have little to do with actual support for capital punishment. Gallup
Poll questions are too broad and general to reveal a specific sense of what the public endorses, especially something
as complicated as the executions of criminals. Vidmar claims that the more important data to collect and study is the
data that show trends of who and under what circumstances criminals are executed. The public’s opinions about
when it is appropriate to sentence a person to death must also be measured. Merely looking at whether or not capital
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punishment is being supported in general has no value to our understanding of the issue or of the public. Looking
instead at certain social groups and classes along with differing crimes provide a better sense of where the public
really stands on the issue.
According to a Gallup Poll cited by Vidmar in 1965, 45% of people supported capital punishment. This statistic by
itself means nothing to Vidmar. Rather, he notes in the same poll, only 23% of people supported the execution of
people who were under the age of twenty-one. Additional polls show general support for capital punishment was
higher than the general support for capital punishment for women. Studies show varying opinions supporting capital
punishment for lesser crimes than murder. A 1970 survey confirms 4% of respondents supported the execution of
someone who was convicted of selling heroin. The same survey showed that 2% of people supported the death
penalty for those convicted of selling or distributing marijuana. Furthermore, Vidmar cites Gallup Polls that show the
differing opinions of mandatory executions for specific crimes. According to a 1973 study in Minnesota, 45% of
people supported the automatic execution of those convicted of murdering a law enforcement officer. What can be
concluded through the use of these studies is that public opinion varies depending on the situation. The Gallup Polls’
shortcomings are that they do not give the option of saying that an execution should depend on specific
circumstances. A more comprehensive look into how the public views different circumstances comes from a Harris
Survey in 1973 (See Appendix C). When asked their opinion, given the options of only being in favor or being in
dissent of the death penalty, 59% of people gave their support for the death penalty. In the same survey participants
were asked if the death penalty should apply all of the time, none of the time, or that it depended on the
circumstances. Overwhelmingly, their response was it depended on the circumstance, with one exception (the killing
of a federal law officer).
Effects of Social Hierarchy
Literature advocates there is a correlation between support for capital punishment and society’s fear of crime and
high crime rates. Vidmar suggests that as crime rates rise, so does public opinion supporting the death penalty.
Mitchell claims that society’s support of criminal executions show a strong division between social groups. He
believes that social hierarchy is what determines support of the death penalty. The group that has the most power will
be the strongest promoters of capital punishment as a way of preventing crime. Mitchell writes:
“It is reasoned that if one of the death penalty’s primary functions is hierarchy maintenance, then the greater the
degree of social hierarchy, the more the death penalty will tend to be used, everything else being equal. It is also
reasoned that the relationship between death penalty use and the degree of social hierarchy will be reciprocal.
Greater use of executions leads to greater social hierarchy, and greater social hierarchy leads to greater need for
instrumental control over subordinate groups, leading to greater reliance on executions to maintain hegemonic
control” (Mitchell, et al., 1995).
According to Haines, another major factor that plays a role in shaping individual opinion on capital punishment is
whether or not there has been a major event in the public eye. The public is more likely to support capital
punishment if malicious national or worldly events have taken place recently (i.e. the September 11, 2001 terrorist
attacks).
The Effects of the United States Supreme Court
The United States Supreme Court has the most noticeable impact on capital punishment as their opinions are placed
into law. Two-hundred years ago, atrocious methods of capital punishment were allowed and practiced. However,
there has been an underlying tone which has hummed throughout U.S. history; in Wilkerson v. Utah (1878), the
Supreme Court expelled disemboweling, public dissecting, drawing and quartering, and burning alive as methods of
capital punishment. It is a phenomenon that the world has advanced so far in one-hundred and thirty years,
compared to the previous countless years before that. The watershed case in the modern death-penalty era is
Furman v. Georgia (1972). The Supreme Court set the status for capital punishment as Justice Brennan gave four
reasons on the grounds to constitute capital punishment. Called the “essential predicate” that all courts must take into
consideration; the first principal states, “a punishment must not by its severity be degrading to human dignity,”
secondly, “a severe punishment that is obviously inflicted in wholly arbitrary fashion,” third, “a severe punishment that
is clearly and totally rejected throughout society,” and lastly, “a severe punishment that is patently unnecessary.” The
problem with the “essential predicate” is that it leaves some of the decisions to public opinion and how judges
interpret those opinions. This is why one sees skewed numbers between states as public opinions vary on
geographical locations (example: Texas put to death over 50 people last year; and New Hampshire has not exercised
capital punishment in half a century.) Public opinion had an effect in the Wilkerson v. Utah (1878) case as the public
found death by firing squad and hangings not to be cruel and unusual.
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While many critics denounce the ‘essential predicate,’ a deeper insight into the ruling finds that while it gives
guidelines to capital punishment, the idea of the predicate allowed public opinion to have an effect on what state
governments found fitting to assess as to, ‘what is capital punishment?’
Public opinion continues to have a large affect on capital punishment as two separate Supreme Court cases have
based their opinions on public attitude which in turn had a direct effect on capital punishment. Atkins v. Virginia
(2002) ruled that the execution of the mentally handicapped is a breach of the eighth amendment’s cruel and unusual
clause stating the “evolving standards of decency.” In Roper v. Simmons (2005), the high court found it
unconstitutional to use the death penalty against anyone who is under the age of eighteen at the time they commit
their crime citing the “evolving standards of decency” test. Before both of these cases, the Supreme Court found it
unconstitutional to exercise capital punishment on anyone under the age of sixteen in the Thompson v. Oklahoma
(1988) case. These three cases show the progressiveness society has undertaken and their value for human life.
While the likeliness of a consensus coming over the populous to swing in favor or in opposition to capital punishment
is beyond farfetched, it is important to understand why the public believes what they do. Research has shown
progressiveness and individual value has led society to sympathize even with the most heinous of criminals, as seen
by the numerous court cases brought before the Supreme Court. Overall, it has led western culture [with exception to
the United States] to denounce the death penalty, as the cruel and unusual punishment does not right the wrong
criminals have committed. However, as technology advances and science is able to create a painless method to
execute those on death row, some will argue that if they do not feel anything, it is a legal and therefore a progressive
technique. The commitment to justice citizens believe in is what many see as a balance of equality; equality in the
sense that capital punishment justifies the crime of murder. Whether the death penalty is cruel and unusual
punishment or not will be debated for years to come.
Data and Methods
The present study will rely exclusively on content analysis of primary and secondary sources. Each primary source
will be reviewed and cross-referenced with secondary sources to gain additional knowledge. Primary sources will
include journals, newspaper editorials, case law, and polls; while secondary sources will primarily focus on historical
texts. The goal of this research is to establish what events have occurred to sway public opinion in reference to
capital punishment. For example, by cross-referencing a 1973 Gallup Poll stating that Americans are not in favor of
capital punishment, and cross-referencing it with a history text, one would find that in 1973 the Vietnam Conflict was
coming to a close. This was the first war in which television had broadcasted actual violence and death while it
happened, causing an outpouring of sympathy and denouncement of murder, including capital punishment. Over
twenty case law studies will be examined as well as the possibility of countless polls and all of this will be crossreferenced with as many history texts as the researchers will require.
This research will focus its aim around four theories; functionalism, anomie, conflict, and social dominance. Each
theory will bring its own questions to the research which will be in truth answered.
First, is Emile Durkheim’s interpretation of Functionalist theory. Durkheim explains the belief, “as a powerful, selfconscious entity controlling the behavior of its individual members, society can perpetuate the social conditions of its
own existence” (Pope, 1975). Essentially, society’s behavior is structured around rules and regulations to organize
the relationships within that society. When applying the Functionalist Theory to our society today, more specifically in
terms of capital punishment, it becomes evident that there might be a meticulous connection between the
Functionalist Theory and why the American public tends to be in favor of the death penalty: “literature suggests that
people with similar characteristics think about political issues in different ways depending on their social environment”
(Soss, Langbein and Metelko, 2003). Those who have received a high level of education, and/or a high annual or
family income are going to tend to feel the same way about certain issues as the other people in their social class,
and likewise for those who have had less educational opportunities and/or have a lower annual income. In some
studies, findings have suggested that the American public opinion is often times shaped directly by the actions and
statements of our political leaders (Vidmart and Ellsworth, 1974). This information must be taken into account for this
study to properly execute its goal. By breaking down polls into differing age groups, ethnicities, and gender, it will be
sure to tell how different people feel about capital punishment. Even taking case law and examining the background
of whomever the case involves will produce information which may prove valuable for this research.
The second theory is conflict theory which is the belief that society functions so that every group struggles to
maximize their benefits, which ultimately leads to political change and revolution. “The more economically stratified a
society becomes, the more it becomes necessary for dominant groups to enforce through coercion the norms of
conduct that guarantee their supremacy” (Chambliss and Seidman, 1980: 33; Jacobs and Carmichael, 2002). This is
an important piece to the puzzle for this research as it will require much secondary content analysis as the
4
researchers will look through history to see who was in power during major case law rulings and will measure the
general feelings of the public.
Robert Merton explains the third theory, Anomie, in his thesis. Merton proposed that crime rates could be explained
by examining the cultural and social structure of society. He postulated that crime rates could be explained by
focusing on the cultural goals stressed by the American society (Bjerregaard and Cochran, 2008). The objective of
this theory is the ultimate goal of this current study; to find out why the American public has changed its attitudes
throughout this country’s history. More specifically, this section will require secondary source content analysis in
comparing evolving standards to human decency. Research completed on why industrialized and educated countries
treat their citizens more humanely will be analyzed.
The fourth theory is the Social Dominance Theory in which Michael Mitchell and Jim Sidanius explain:
“Social Dominance theory is a social psychological theory of group conflict which describes human society
as consisting of oppressive group-based hierarchical structures. Whites are significantly more in support
with the death penalty than African-Americans or Hispanics which seems to be the opposite of what would
be expected since the victims of capital crimes are predominantly African-American and Hispanic. Claims
prevail that social hierarchy is what determines support of the death penalty. The group that has the most
power will be most in favor of capital punishment as a way of preventing crime” (Mitchell and Sidanius, 1995:
602).
This theory was conducted via surveys taken about capital punishment, and distinctive characteristics of people were
used in creating this theory. Research will be conducted on this thesis based on the instrumental and symbolic
concerns which influence death penalty support. While researching polls, the researchers must be careful taking in
information verbatim, and must realize the underlying causes for the different ways society supports or does not
support capital punishment.
The questions these four theories bring into the research will shape and crystallize the conclusions for the
researchers. The massive amounts of content analysis and cross-referencing between primary and secondary
sources will prove essential in completing this research.
Summary and Conclusion
th
Capital punishment has been a long standing penalty in the United States since the nation’s founding in the late 18
century. The death penalty has been and continues to be defended on the grounds in which society has the ethical
responsibility to protect the welfare and security of its citizens from the heinous crimes which justify its sentence.
However, in the present culture mankind has formed in this country, our society has created a substantially different
progressive era than our forefathers could have ever imagined. This progressiveness has led a degree of public
opinion to denounce capital punishment as barbaric; moreover, society has the moral obligation to protect life, not
destroy it. The eighth amendment to the United States Constitution prohibits “cruel and unusual punishment,” and left
the term loosely defined enabling courts to specify the law.
As of January 1, 2010, just over thirty-three hundred men and women currently wait on “death row” in the U.S. for
their execution day to arrive. A majority of these executions will never make the evening news or the front page of a
newspaper having become somewhat of a routine in over past fifteen years. The death row population in the United
States has doubled since 1993, and the U.S. continues to be the only western industrialized nation that exercises the
death penalty.
Case Law
The first significant court case defining the eighth amendment came by Wilkerson v. Utah (1878). The case made it
all the way to the Supreme Court where the Justices banned disemboweling, public dissecting, drawing and
quartering, and burning alive of live persons sentenced to death. These four primitive methods were seen as an
unnecessary infliction of pain, and ultimately, torture, was banned under the eighth amendment as well. Firing squad
and hanging were still permitted as they were the common methods at the time. Progressive thinking has a huge
impact on capital punishment as society values life as time passes. In Medieval Times, public dissecting,
disemboweling, and drawing and quartering were the main techniques used as a way to deter crime. In a sense this
worked because of the power leaders had. The court cited “progressiveness and individual rights,” as the number of
methods available for use dropped as life became more valuable (Zimring, 2004). We saw it in Medieval Times, we
saw it in 1878, and we are seeing it in the present as the methods currently used are under fire.
Wilkerson v. Utah is an interesting decision citing “progressiveness and individual rights” because while no major
individual rights were granted in the United States, there was an outbreak of Yellow Fever causing 13,000 deaths in
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the Mississippi Valley which may have played a factor in capital punishment because of the huge amounts of
suffering faced by Americans that year. This was also a time of major expansion in industrial capitalism and science.
The United States was shaping into a world class power and had to act accordingly; the idea of a major world power
using primal antics to put people to death would separate them from their European counterparts.
No major Supreme Court decisions came out of capital punishment cases after 1878 until Furman v. Georgia (1972).
Furman v. Georgia set the status for capital punishment as Justice Brennan gave four reasons on the grounds to
constitute capital punishment. Called the “essential predicate” that all courts must take into consideration; the first
principal states, “that a punishment must not by its severity be degrading to human dignity,” secondly, “a severe
punishment that is obviously inflicted in wholly arbitrary fashion,” third, “a severe punishment that is clearly and totally
rejected throughout society,” and lastly, “a severe punishment that is patently unnecessary.” The court’s opinion went
on to say, “Capital punishment had always been regarded as appropriate under the Anglo-American tradition for
serious crimes” (Latzer, 1997).
Furman v. Georgia is seen as a contemporary win for progressiveness in capital punishment as the case actually
halted all executions in the United States from 1972-1976 (see Appendix B) as states were forced to enact new death
penalty statues to coincide with the Supreme Court ruling; only thirty-seven states rewrote statues. While
progressives focus on the ‘essential predicate’ as their victory, the original goal of the case was to abolish capital
punishment in the United States on the basis of violation of the eighth amendment’s ‘cruel and unusual punishment’
clause; however, while the case set a predicate that states must follow, creating a more difficult atmosphere for a
capital punishment sentence, the high court embedded capital punishment in the American court system. Five
subsequent cases in 1976 (Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and
Roberts v. Louisiana) all set out to refine and create guidelines for states’ new statues on capital punishment.
Furman v. Georgia is an interesting court opinion because there was one major factor taking place while this decision
was made; the Vietnam Conflict. A Gallup Poll taken from November 1-5, 1953 (even before the pre-Vietnam Conflict
started) showed that 68% of Americans were in favor of the death penalty, while 25% were opposed, and 7% were
unsure. A second Gallup Poll taken from October 29 – November 2, 1971 (a year before the Furman v. Georgia and
four years before the war ended) showed that 49% of Americans were in favor of the death penalty, 40% were
opposed, and 11% were unsure (see Appendix B). This is a huge swing in public opinion and arguably has to do with
the Vietnam Conflict. Throughout American involvement in Vietnam television cameras caught acts of war on tape
and broadcasted those images around the country. Many Americans became disgusted with the idea of killing and
war because of the actions and images depicted, the elongated stay of American troops, and the rising cost to
sustain military action in Vietnam. It is at this point in American history where civil unrest was in full swing
(McCormick, 2000).
After the Furman v. Georgia ruling, the Supreme Court became flooded with capital punishment cases each in their
own way placing restrictions on how capital punishment was to be applied. Coker v. Georgia (1977) stated that death
is a constitutionally excessive punishment for the crime of raping an adult. Enmund v. Florida (1982) and Penry v.
Lynaugh (1987) forbid capital punishment on an offender who, “aids and abets a felony in the course of which a
murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that
lethal force will be employed” (Latzer, 1997). All three of these cases were met with heated protests throughout the
nation calling for the restrictions which were eventually put in place. These protests most likely stemmed from the civil
unrest the U.S. faced in the 1960’s and 1970’s from the civil right’s movement, the women’s movement, the
environmental movement, and the Vietnam Conflict.
Media outlets also began to create pressure surrounding Supreme Court cases beginning in 1984 with Arizona v.
Rumsey. The defendant was sentenced to life imprisonment without the possibility of parole for twenty-five years on a
murder conviction, and sentenced to twenty-one years on the armed robbery conviction; both terms were to be
served consecutively. The defendant brought his case to the Arizona Supreme Court where the state argued that the
trial court did not believe the pecuniary gain finding applied to situations other than contract killings. When the
defendant appealed his conviction and sentences, the State cross-appealed on these issues. Eventually, the Arizona
Supreme Court expanded the interpretations of the pecuniary gain aggravator to situations other than contract killing
cases. Because the trial court erred in concluding that it could not find that the murder was committed for monetary
gains as a matter of law, the case was sent back down to the trial court for resentencing. With the expanded law in
place the defendant was sentenced to death after the facts here were that the victim picked up the defendant and
witness who were hitchhiking somewhere in New Mexico or Texas. In Phoenix, the victim bought alcoholic beverages
and food for the defendant and witness. The witness testified that the defendant noticed the victim had over $300 in
his wallet, and he was going to rob the victim. The defendant ordered the victim into the trunk of the victim's car, and
when the victim refused, the defendant shot the victim. Then the defendant dragged the victim off the road and threw
some money at the witness. Under the new Arizona state law, this conviction and sentencing was appropriate;
however, the defendant appealed all the way to the U.S. Supreme Court and the High Court ruled that because the
6
defendant was originally given a sentence of life imprisonment, he could not constitutionally be given the death
penalty at resentencing. The original sentence of life imprisonment operated as an acquittal of the death penalty. The
court evoked three essential protections included in the Double Jeopardy Principal, which are: being retried for the
same crime after acquittal, retrial after conviction, and being punished multiple times for the same conviction (Latzer,
1997).
Public outcry on the violation of the double jeopardy principal caused media outlets to go into a frenzy by denouncing
the court for their resentencing verdict. The media pressure and cause for support for the defendant on the grounds
of the violation of his right to double jeopardy may have pushed the cause to further appeals, was doubtful to
influence the Supreme Court as the principal was already in place, but may have swung the Supreme Court to not so
much uphold the principal, but add more protections to it.
In 1986, Ford v. Wainwright served two main advancements in capital punishments’ progressiveness through the late
twentieth century. The case brought forward Alvin Bernard Ford who was convicted on capital murder charges in
1974. Ford was sentenced to death and while on death row Ford’s health began to diminish to a point resembling
paranoid schizophrenia. Ford began to refer to himself as Pope John Paul III, reporting accomplishments such as
thwarting a Ku Klux Klan conspiracy about burying dead prisoners in the prison walls, and personally appointing nine
new Florida Supreme Court Justices who reversed his sentence. A panel of three psychiatrists was eventually called
to examine Ford’s behavior, and concluded that while Ford suffered from psychosis and various mental disorders,
that Ford was still capable of understanding the nature of the death penalty and the effect that such a penalty would
have on him. The governor of Florida, D. Robert Graham, acted without further comment on the panel’s findings, but
in accord with a Florida Statute, and signed a death warrant for Ford in 1984. Subsequently, Ford sued the Secretary
of the Florida Department of Corrections, Louie L. Wainwright.
The case ended up in the U.S. Supreme Court and in a 5-4 decision, fell in Ford’s favor. Justice Thurgood Marshall
gave the Court’s opinion after reviewing the evolving standards of the eighth amendment to be consistent with, “the
progress of a maturing society,” and one not tolerable of acts traditionally branded as “savage and inhuman” (Latzer,
1997). Justice Marshall reasoned that executing the insane did not serve any penal system goals and that Florida’s
procedures for determining competency were inadequate. Therefore, the Court made a preliminary finding that the
Eighth Amendment bars states from inflicting capital punishment upon insane persons. The Court went on to address
the procedural issues present in making a determination of insanity for Eighth Amendment concerns. The Court found
that such a determination could not be left solely to the executive branch, as was done via the Florida Statute
allowing then Governor Graham to sign Ford’s death warrant solely on the recommendation by an appointed
committee of psychiatrists. The Court held that a proper judicial hearing, in which full procedural rights would be
afforded, including the right to counsel and to cross-examine witnesses was necessary for such a finding. Ford was
eventually reevaluated and found to be incompetent to the executed.
While public opinion polls showed a majority were in favor of Ford, this is the first time the Supreme Court gives its
opinion on capital punishment while citing a previous case which stated that ‘progressiveness’ and ‘ a maturing
society’ actually had a hand in assisting the decision. This is significant as future court cases will follow this lead and
use the idea of ‘progressiveness’ to clarify their opinions.
Capital punishment has many interpretations and opinions that it usually requires a court case to decide the law on
certain aspects. In Atkins v. Virginia (2002), the Supreme Court ruled that the execution of the mentally retarded is a
breach of the eighth amendment’s cruel and unusual clause stating the “evolving standards of decency.” In Roper v.
Simmons (2005), the high court found it unconstitutional to use the death penalty against anyone who is under the
age of eighteen at the time they commit their crime citing the “evolving standards of decency” test. Before both of
these cases the Supreme Court found in Thompson v. Oklahoma (1988) it unconstitutional to exercise capital
punishment on anyone under the age of sixteen (Conners, 2007). These three cases show the progressiveness
society has demonstrated and their value for human life. Many offenders have some kind of mental illness or post
traumatic stress syndrome and need certain medication to level the chemical imbalances in their bodies. However,
these illnesses and diseases go unnoticed and the proper medication is not prescribed.
During Atkins v. Virginia, the court went on to say that with the “evolving standards of decency” we also have an
obligation to “the progress of a mature society.” These steps have been taken slowly throughout history which has
included women’s right to vote, civil rights, and now the protection of the mentally handicapped and minors.
An interesting twist of public opinion’s effect on capital punishment is the convicted themselves carrying out protest
by requesting particularly, in today’s society, heinous ways of dying but which have not been taken off the books yet
as a way to show the primordial thinking of capital punishment and instill unrest in society. Beginning with a case in
Utah where John Albert Taylor requested to be executed by firing squad because “it would be awkward for state
officials.” Taylor knew death by firing squad would bring huge media attention and denouncement of capital
7
punishment and he was correct; the execution brought over one-hundred and fifty television news crews from around
the world, with nine media witnesses being allowed to record the actual event. All nine said they would remember
Taylor’s chest heaving upward after he was shot (Latzer, 1997).
The gas chamber has three cases in particular which have set public opinion ablaze with the disapproval of capital
punishment. While two of these three men did not wish to die in the fashion, they did as a form of protest. Their
deaths have caused an outcry for the expulsion of the gas chamber and a reexamination of how capital punishment is
followed through within the United States.
In April of 1992, Robert Alton Harris was put to death in a gas chamber. At 6:07 a.m., a prison guard released the
combination of sodium cyanide and sulphuric acid which creates the lethal hydrocyanic gas. For a few minutes after
the gas was released Harris switched and shook. He threw his head in every which direction while his arms fought
against the straps which held him down. Four more minutes passed and his body went relaxed with his mouth open
and face blue. After sitting still for another three minutes, Harris began coughing and shaking again before he was
declared dead at 6:21 a.m. Harris suffered for fourteen minutes while his body tried to cling to life.
In January of 1998, Ricky Sanderson faced the same torture Harris did as it took the gas chamber eighteen minutes
to claim his life. In March of 1999, in protest of the gas chamber, Walter LaGrand requested to be put to death by gas
and he too took eighteen minutes to pass. These three executions happened in California and Arizona and have
since been banned as ways of execution due to the suffering they cause; however, it has not been an issue raised to
the Supreme Court and some states still have the option to use this method if they so choose.
The most recent and fought over method of capital punishment is lethal injection. Lethal injection is performed
manually and requires three drugs for it to successfully work. First, the anaesthetic is injected which puts the
convicted inmate to sleep. This drug is the same one surgeons use during operations. It is painless and can reach the
brain in as quickly as ten to fifteen seconds. The second drug used is a paralyzing agent called pancuronium
bromide. This drug is a muscle relaxant which discontinues breathing by paralyzing the diaphragm and lungs. It may
take up to three minutes to take effect. The third and final drug given is a toxic agent called potassium chloride. This
drug is given at lethal doses to “interrupt the electrical signalling between the heart and brain” (Conners, 2007). The
whole process may take up to half an hour but because the inmate in sedated, they cannot feel a thing.
Recent studies have shown however, that death row inmates can feel everything that happens to them. A recent
article in the Washington Post states, “Even when administered properly, the three-drug lethal injection method
appears to have caused some inmates to suffocate while they were conscious and unable to move, instead of having
their hearts stopped while they were sedated” (Lethal Injection Method Flawed: Washington Post, 2007). This
information came from scientists who reported and published this information in the online journal, PLoS Medicine.
The report goes on to say that the “one size fits all” doses of anesthetic do not always work in favor of the larger
inmates; this may cause the anesthetic to wear off before the execution is complete.
In late September 2007, the San Francisco Chronicle reported that the Supreme Court “took up a constitutional
challenge to lethal injections, agreeing to decide how far states must go to reduce the risk of excruciating pain during
an execution” (Supreme Court to review lethal injection methods: San Francisco Chronicle, 2007). This case,
brought up by two Kentucky inmates, has slowed the pace of executions; however, will not eliminate them completely
while this case is being reviewed. This is the first time the Supreme Court has reviewed the Constitutionality of a
capital punishment method since Wilkerson v. Utah in 1878. The decision which was released in June of 2008 found
that lethal injections were constitutionally acceptable. This decision caused an uproar of protests across the nation
citing the scientific medial article which shows how the lethal injection method is flawed.
Public Opinion
“With the advent of the public opinion poll, politicians began to have access to highly reliable information
about the electorates’ views on issues.” No longer did party leaders have to make “educated” guesses as to what the
public wanted (Geer, 1991). In a study done by Benjamin Page and Robert Shapiro, it became evident that public
opinion does affect case laws and policies when their results showed that of the 56 cases they studied that had a
policy change, 57% of those policies changed in accordance with the public’s documented opinion (Page and
Shapiro, 1983). “Now with better sampling techniques and improved question wording, polls provide politicians with
th
more useful information than at any other time since the extension of mass suffrage in the 19 Century” (Geer, 1991).
At the same time, politicians and policies themselves may have an effect on public opinion as well. Politicians could
manipulate the public with lies and deceptive tactics, or only provide the public with limited information that would
sway them to vote in favor of their stance. “The responsiveness of government policy to citizens’ preference is a
8
central concern in normative democratic theory, and there is no shortage of empirical theorizing about the extent to
which policy does or does not respond to public opinion” (Page et al., 1983).
In conducting this research, the results uncovered were in accordance with the researchers original hypothesis, in
that capital punishment laws and policies are in fact shaped by the opinion of the public. Public opinion influences
capital punishment policies in that prosecutors, judges, and juries all may choose to incorporate public sentiment into
their decisions regarding an offender in a death penalty trial (Norrander, 2000). As a result, current public opinion
does influence death penalty rates, but so too does political culture. Barbara Norrander argues that not only should
public opinion affect the enactment of capital punishment policies, but it should affect the implementation as well.
While judges and prosecutors will undoubtedly influence the implementation of state’s capital punishment laws, they
are publicly elected officials and thus will be acting in the way the public wants, for that is the reason the public voted
for them (Norrander, 2000). However, it has been debated that it is quite possible that past policies have shaped the
opinions of American citizens, so it could be said that today’s citizens are only voting in accordance with what
Americans decades ago believed in, rather than what they truly want (Norrander, 2000).
Discussion and Conclusions
While these results most certainly do not reject the original hypothesis that public opinion does have a significant
impact on capital punishment [case law] in the United States, the researchers have also found a second conclusion to
discover why case law related to capital punishment has become much more progressive in the latter half of the
twentieth century.
After the 1972 Furman v. Georgia case forced states to follow the ‘essential predicate,’ rewrite their statutes if they
wished to continue to practice capital punishment in their state, as well as completely halt executions in the United
States for four years, we begin to see a trend as the United States Supreme Court began placing restrictions on
capital punishment by creating a more difficult environment to have a convicted criminal executed. During the early
1970’s, support for the death penalty was at an all time low and continued the same trend until the mid-1980’s (see
Appendix B). While support begins to rise for the death penalty in the 1980’s, a new trend emerges which allows the
progressive nature of capital punishment to continue.
In 1986, Ford v. Wainwright grabbed the Supreme Court’s attention and Justice Marshall did something no other
Supreme Court Justice had done in relation to a Supreme Court case; the Court cited a previous case’s ‘progressive
nature’ by calling their own case ‘the progress of a maturing society.’ While at the time this may have been seen as
an insignificant opinion in which all cases are cited by other cases, but prior to 1986, the idea of citing a previous
capital punishment case for their ‘progressiveness’ and applying it to their own case in efforts to push forward the
evolving capital punishment law had never happened in U.S. history. Not only did Ford v. Wainwright begin this trend,
but at least ten other Supreme Court cases have cited previous cases’ ‘progressiveness’ in order to further their own
progress and American societal maturity.
Future Implications/Where to go from here?
The results of this study show an American court system racing toward a progressive future and fair treatment for all.
While it will not happen overnight, the advancements made in the last forty years are exponential compared to the
first two-hundred years of U.S. existence.
The research conducted took ample amounts of time and the improvement of civil rights in accordance with capital
punishment have been shown to grow tremendously; however, future research should concentrate on two separate,
yet extremely equal aspects: 1) more time is needed to fully research information on the topic. Capital punishment
case law is a massive topic which should be researched and comprehended thoroughly; 2) break up the research into
either various decades and/or various topics.
While the likelihood of a consensus coming over the populous to swing in favor of or against capital punishment is
beyond farfetched, it is important to understand why the public believes what they do. Progressiveness and individual
value has led society to sympathize even with the most heinous of criminals as seen by the numerous court cases
brought before the Supreme Court. It has led western culture to denounce the death penalty, as the cruel and
unusual punishment it creates does not right the wrong criminals have committed. However, as technology advances
and science is able to create a painless method to execute someone, some will argue that if they do not feel
anything, it is a legal and progressive technique. The commitment to justice citizens believe in is what many see as a
balance of equality; equality in the sense that capital punishment justifies the crime of murder. Whether the death
penalty is cruel and unusual punishment or not will be debated for years to come. Human error must go into account
for all capital punishment cases, as unfortunately something may go wrong. Lethal injection was seen as a painless
method which would solve eighth amendment problems towards capital punishment; however, studies have proven
9
otherwise. Some say capital punishment itself is cruel and unusual but the courts have not agreed. Establishing “what
is” and “what justifies” capital punishment is not so much what the law, than as what public opinion, says it is. Capital
punishment’s relation to the eighth amendment will stand as it does until the populous speaks out against it in a
grand, concerted fashion.
Appendix A
10
Appendix B
Gallup Poll: Are you in favor of the death penalty for a person convicted of murder?
For
Against
No Opinion
2007 Oct 4-7
2006 May 2-5
2005 Oct 13-16
2005 May 2-5
2004 May 2-4
2003 Oct 6-8
2003 May 19-21
2003 May 5-7
2002 October 10-13
2002 May 6-9
2001 Oct 11-14
2001 May 10-14
2001 Feb 19-21
2000 Aug 29-Sep 5
2000 Jun 23-25
2000 Feb 14-15
1999 Feb 8-9
1995 May 11-14
1994 Sep 6-7
1991 Jun 13-16
1988 Sep 25-Oct 1
1988 Sep 9-11
1986 Jan 10-13
1985 Jan 11-14
1985 Nov 11-18
1981 Jan 30-Feb 2
1978 Mar 3-6
1976 Apr 9-12
1972 Nov 10-13
1972 Mar 3-5
1971 Oct 29-Nov 2
1969 Jan 23-28
1967 Jun 2-7
1966 May 19-24
1965 Jan 7-12
1960 Mar 2-7
1957 Aug 29-Sep 4
1956 Mar 29-Apr 3
1953 Nov 1-5
1937 Dec 1-6
69%
65%
64%
74%
71%
64%
70%
74%
70%
72%
68%
65%
67%
67%
66%
66%
71%
77%
80%
76%
79%
79%
70%
72%
75%
66%
62%
66%
57%
50%
49%
51%
54%
42%
45%
53%
47%
53%
68%
60%
27%
28%
30%
23%
26%
32%
28%
24%
25%
25%
26%
27%
25%
28%
26%
28%
22%
13%
16%
18%
16%
16%
22%
20%
17%
25%
27%
26%
32%
41%
40%
40%
38%
47%
43%
36%
34%
34%
25%
33%
11
04%
07%
06%
03%
03%
04%
02%
02%
05%
03%
06%
08%
08%
05%
08%
06%
07%
10%
04%
06%
05%
05%
08%
08%
08%
09%
11%
08%
11%
09%
11%
09%
08%
11%
12%
11%
18%
13%
07%
07%
Appendix B (cont.)
Appendix C
Harris Poll: "Do you believe in capital punishment -- that is, the death penalty -- or are you opposed to it?"
Favor
Oppose
Don't Know
Feb 5-11, 2008
63%
30%
07%
Dec 10-16, 2003
69%
22%
09%
July 2001
67%
26%
07%
2000
64%
25%
11%
1999
71%
21%
08%
1997
75%
22%
03%
1983
68%
27%
05%
1976
67%
25%
08%
1973
59%
31%
10%
1970
47%
42%
11%
1969
48%
38%
14%
1965
38%
47%
15%
12
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