Cruel and Unusual
Punishment
Capital Punishment
Fyodor Dostroyevsky wrote, “A society
should be judged not by how it treats its
outstanding citizens but by how it treats
its worst criminals.”
Executions in the United States
 The number of death sentences and executions has
always been small when compared with the
number of murders. The national average is that in
about 2.5% of homicides the death sentence is
used and only about .2% are executed.
 Since the restart of executions in 1977 there have
a little over a 1000 people have been executed in
the U.S.
 Of the 6,912 people under sentence of death
between 1977 and 2002, 12% were executed
Reduction in the number and types of
crimes punishable by death.
 Murder committed in the commission of a felony.
 Multiple murders.
 Murder of a police or correctional officer acting in
the line of duty.
 Especially cruel or heinous murder.
 Murder for financial gain.
 Violent Crime prior offenses.
 Causing or directing another to commit murder.
A second trend involves the attempt to
lessen the cruelty of executions.
 In the 1800s in the U.S. hanging was the most
common means.
 Next electrocution.
 Lethal Gas
 Lethal Injection
 Today in the U.S., 27 states used lethal injection,
11 use electrocution, 4 use lethal gas, 2 hanging,
and 1 uses firing squad.
 Since 1977, 654 of the 820 executions (80%)
were by lethal injection.
A third trend has been the attempt by policymakers in the U.:S. to ensure that death
sentences are imposed fairly and rationally.
 Guided Discretion:
– Only certain types of murder
– Defendants accused of capital murder would be
tried by jury in two-phase proceedings.
– Death verdicts would be automatically
reviewed by state supreme courts.
Fourth trend is in sanitizing
executions.
 Today’s executions are conducted late at
night.
 Using well-defined and specialized
procedures.
 Witnessed by only a handful of observers
 Occur on the average 8 years and five
months after conviction.
How the System Works Today
 Jury selection with “death qualification” and
problem of the bias of the jury.
 The Capital Murder Trial
– First phase is the determination of guilt.
– Second phase is the penalty phase.
– It is estimated that for every 100 cases in which capital
crimes are alleged, only about 20 progress to the
penalty phase.
– Death Sentences are automatically appealed to State
Appeals Courts.
The Politics of the Death Penalty
 Death Penalty support as litmus test to determine
whether candidates are tough on crime.
 Judges and prosecuting attorneys are elected on
their toughness on crime.
 Governors who are elected determine
commutation of sentence.
 In states that elect their supreme courts, death
sentences are affirmed at a much higher rate than
states that don’t.
Is the Death Penalty Cruel?
 In the United States lethal injection is fast
becoming the only means of execution used.
 When injecting the lethal drugs even a small
error in dosage or administration can leave a
prisoner conscious but paralyzed while
dying, a witness to his or her own slow,
lingering asphyxiation.
Life on Death Row
 Among prisoners executed from 1977 to 2002, the
average time spent between the imposition of the
most recent sentence received and execution was
more than 10 years.
 Confined in 6 by 9 foot cell.
 Three times a day, the occupants of death row receive a
meal through a slot in their cell door.
 Two or three hours a day they are permitted to go alone
outdoors to a fenced-in concrete area, observed by
surveillance cameras.
 No contact visits.
Population on Death Row –
Gender and Age.
 Men were 99% (3,506) of all prisoners under
sentence of death.
 During 2002 the number of women sentenced
to be executed remained at 51.
 About half were age 20 to 29 at the time of
arrest for their capital offense; 13% were age
19 or younger; and less than 1% were age 55
or older.
 Fifteen States and the Federal system
required a minimum age of 18. Sixteen States
indicated an age of eligibility between 14 and
17.
Population on Death Row –
Ethnicity.
 Whites comprised 54% (within this
classification 12% were Hispanic);
blacks comprised 44%; and other races
(2%) included 27 American Indians, 33
Asians, and 12 persons of unknown
race.
Cost of the Death Penalty.
 Cost is much higher than life in prison without the
possibility of parole. Life in prison is estimated to
be $750,000 to $1.1 million per prisoner .
 Between 1977 and 1996, California spent more
than $1 billion on its death penalty and managed
to execute only five men. In New York, the
Department of Correctional Services calculated
that reinstatement of the death penalty would cost
the state $118 million each year. . In Florida, the
average cost per execution is $3.2 million.
Why the Death Penalty is so
Costly
 Capital trials are more complex and time-
consuming than other criminal trials at every stage
in the legal process.
 Extra costs associated with capital trials are
incurred not only when a defendant is sentenced to
death, but also when a defendant is acquitted or
sentenced to life imprisonment.
 Cost of operating death rows very high.
 Additional cost of court appeals.
Is the Death Penalty Fairly Applied?
 Only a minority of cases that would be eligible for
the death penalty is the penalty pursued by the
prosecution.
 As Justice William O. Douglas observed, “One
searches our chronicles in vain for the execution
of any member of the affluent strata of this
society.
– Very few capital defendants can afford to hire their
own lawyer, they are represented by either a public
defender or a court-appointed private attorney.
– Public defenders are paid less, and have less staff than
prosecuting attorney’s office.
– Capital defendants with court appointed lawyers are
more than twice as likely to be sentenced to death than
defendants with privately retained attorney’s.
Justice in Black and White
 Wolfgang and Riedel’s research on rape
convictions found that between 1945 and 1965,
the best predictor of a death sentence was the race
of the offender combined with the race of the
victim .
 Black population is 12% of U.S. population
– 41% of those on death row are black, since the
reinstatement of the death penalty in 1976,
– 39.3% of the people executed have been black
– 86% of the executions have been people convicted of
killing whites, even though half of all murder victims in
the U.S. are black.
Wrongful Conviction and
Execution
 More than 100 people released from death
row, later found to be innocent.
 Bedua and Radelet’s research identified 416
persons who were wrongfully convicted of
murder and sentenced to death between
1900 and 1991. In 23 cases they were
executed. The authors continue to uncover
such errors at the rate of about a dozen per
year.
Death Penalty and Deterrence
 Sellin’s research on state comparisons.
 Peterson and Bailey state comparisons over twelve year
period 1973- 1984 found that death penalty states had
higher murder rates than non death penalty states,
8.64/100,000 vs. 5.35.
 Lempert (1983) tested the relationship between the number
of executions and number of homicides. He included
several states over a fifteen year period, no relationship
was found.
 Archer and Gartner compared murder rates in twelve
countries and two foreign cities before and after abolition
of the death penalty. Eight of the fourteen showed a
decreased murder rate in the year following abolition,
while five showed an increase.
Why Killing Doesn’t Deter
Killers,
 Most murders are crimes of passion.
 The death penalty has never been and will never
be certain. In U.S. approximately 1% of
homicides end in execution.
 No immediacy – on average condemned prisoners
wait over 10 years for their execution.
 William Bowers meta analysis of 70 studies of
murder rates concluded that executions actually
increase murder rates.
What is the Taiwan Experience?
 Are their biases in application of the death
penalty?
 Is it a deterrent?
 Is it beneficial relative to the cost?
 What is the error rate?