Chapter 20
The Death
Penalty
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the entrance to death row
San Quentin, California
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women’s death row:
Central California Women’s Facility
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capital punishment debate
the PRO side
 moral
arguments

retribution calls for death penalty

200 studies: most--no evidence of deterrence:
 utilitarian
arguments (deterrence)
 Peterson & Bailey: murder rates were higher in
states with death penalty than in adjacent states
without it
 Lempert: confirmed no effect
 Ehrich: each execution between 1933 & 1969
prevented between 7 & 8 murders
 National Academy of Sciences reanalyzed data &
dismissed findings
 economic

arguments
death penalty is less expensive than life
imprisonment

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capital punishment debate
the CON side



moral arguments


capital punishment is not moral
state does not have the right to take a life


no convincing evidence that capital punishment deters
many capital crimes cannot be deterred
utilitarian arguments (deterrence)
economic arguments


 drug/alcohol-based, psychological disturbance, rage
death penalty more expensive than life sentence
extra $216,000 to prosecute; $2.16 million to execute
other arguments


mistakes are unavoidable & irreversible
death sentence imposed in unfair & discriminatory way
eg, by race, jurisdiction, even politics (see Houston)
eg, 1,000 murders to 1 execution
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public opinion: death penalty
 nearly 3/4 Americans support death penalty.
 majority have supported it since Gallup
survey first asked about it in 1936

only exception was 1960 - 1965


support level depends on how question worded
when offered alternative to capital punishment,
many supporters opt for the alternative
 support generally risen over last 35 years
 important note on survey methodology:
 life without possibility of parole
 >20% shift to “opposition,” when given this option
 life, in addition to restitution to the victim
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% states with death penalty
NO death penalty
24%
76%
WITH death penalty
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death penalty
by the numbers
 270

#
death sentences are pronounced yearly
compared to 22,000 yearly arrests for murder &
non-negligent manslaughter
persons on death row exceeds 3,700

54 women are on death row
 722 executions from 1976 - July, 2001
 yearly executions generally > 74 since
1976
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Furman v. Georgia, 1972
 U.S.
Supreme Court ruled that the death
penalty, as administered, constituted cruel
and unusual punishment, in violation of the
8th Amendment to the U.S. Constitution
invalidated death penalty laws of 39 states &
D.C.
 35 states re-enacted laws
 issue returned to Supreme Court...

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Gregg v. Georgia, 1976
 U.S.
Supreme Court upheld death penalty
laws which
required the sentencing judge or jury to take
into account specific aggravating and
mitigating circumstances in deciding which
convicted murders should be sentenced to
death, and which
 authorized a “bifurcated” proceeding (trial to
determine guilt and a separate hearing
exclusively to determine penalty)

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McCleskey v. Kemp, 1987
 U.S.
Supreme Court rejected a
constitutional challenge (to Georgia’s death
penalty law) on the grounds of racial
discrimination
attorney cited rigorous research showing the
application of the death sentence in Georgia
was racially biased.
 Court rejected claim (5-4 vote), ruling:

 in cases alleging racial discrimination, defendant
has to prove decision makers acted with a
discriminatory purpose in that specific case.
 statistical evidence showing discrimination
throughout the state was not adequate proof.

McKleskey executed in 1991
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legal issues
re: capital punishment
execution of
“insane”
execution
of
juveniles
counsel
populations
& processes
appeals
execution of
retarded
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Ford v. Wainwright, 1986
 U.S.
Supreme Court ruled the 8th
Amendment prohibited the state from
executing the incompetent; the accused
must comprehend both the fact that he has
been sentenced to death and reason for it.
accused was delusional, claiming KKK was part
of a conspiracy to get him to commit suicide
 Court ruled there is no deterrent or retributive
value to executing the mentally disturbed
 idea is offensive to humanity

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execution of juveniles
 minimum


 84
age for execution varies by state
8 states don’t specify
in some, age is same as juvenile “waiver” age
males on death row who were < 18
(at time of offense)
 Thompson v. Oklahoma, 1988
decided that William Thompson, 15 when he
committed murder, could not be executed
 Sanford v. Kentucky & Wilkins v. Missouri, 1989
 offenders aged 16 and 17 can be executed

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execution of the retarded
 360 offenders on death row are retarded
 the retarded account for 10% of executions
 Penry v. Lynaugh, 1989
Supreme Court held 8th Amendment does NOT
prohibit execution of the mentally retarded;
 Penry was a convicted killer with an IQ of 56
and mental capacity of a 7-year-old.

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“habeas corpus
petition”

definition
a writ requesting a court to review the
conditions of incarceration or the
basis of detention
habeas
corpus is the only means by
which a federal court can hear
challenges by state inmates to their
convictions and/or sentences
before an inmate may file a complaint in
federal court, he must “exhaust” all the
administrative remedies that the state
courts make available to him.
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appeals
 average time sentence--execution:
 recent moves to limit that interval
7- 8 yrs
McCleskey v. Zant, 1991, Supreme Court:
except in exceptional circumstances, lower
federal courts must dismiss prisoner’s second
and subsequent habeas corpus petitions.
 1993 Supreme Court: offender who presents
belated evidence of innocence not necessarily
entitled to new hearing in federal court;
evidence must be “truly persuasive”
 Anti-Terrorism & Effective Death Penalty Act, 1996
 death row inmates must file habeas corpus
petition within one year

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counsel
 appointed

counsel often receive small fees
eg, $1,000 per case; $20/hr (Alab.);
$11.75/hr (Miss.)
 Stickland
v. Washington, 1984, Supreme Crt:
defendant has a right to representation that
meets an “objective standard of
reasonableness”
 accused must show “that there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.”

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% of all death sentences imposed
where death penalty imposed
60%
55%
50%
40%
30%
24%
20%
14%
7%
10%
0%
South
West
Midwest
Northeast
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where executions happen,
1976 - July, 2001
722 executions carried out since 1976
275
248
250
222
225
200
175
150
125
100
82
75
51
50
50
43
26
25
0
TX
VA
FL
MO
OK
LA
others
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inmates on death row
by race
Other
2%
African
American
43%
White
55%
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