Capital Punishment in the United States

Stephanie Picolo Manzi. Handbook of Death and Dying. Editor: Clifton D. Bryant. Volume 1: The Presence of Death. Thousand Oaks, CA: Sage Reference, 2003.

Although a majority of the crimes once punishable by death in the United States are no longer punishable in that manner, as of late 2002, 3,697 men and women were housed on death rows in American prisons. The United States remains the only Western democracy that takes the lives of individuals who have been convicted of what are known as capital offenses. In this chapter, I provide some historical background on the use of the death penalty in the United States and a demographic breakdown of the population of those who are at present sentenced to death. I conclude the chapter with an overview of some of the controversial issues related to the use of capital punishment, including the execution of mentally retarded persons and the execution of individuals who are innocent of the crimes for which they have been convicted.

History and Background of Capital Punishment in America

When the first European settlers arrived in colonial America, they brought with them the British tradition of capital punishment. The earliest recorded use of the death penalty in the New World was in the colony of Virginia in 1622, when one Captain George Kendall was executed for the crime of treason. The death penalty was accepted as just punishment for a variety of offenses in the American colonies, but there are two striking differences between the use of the death penalty in Britain at the time and the use of the death penalty in the colonies. The first difference is found in the number of crimes for which the death penalty could be imposed. By 1760, Great Britain considered more than 100 offenses to be punishable by death, whereas the laws of the majority of the colonies listed fewer than a dozen capital offenses each. The numbers of capital crimes varied from colony to colony, but in most cases the laws describing capital offenses were accompanied by biblical quotations that were understood to justify the use of the death penalty. Crimes that carried a sentence of death in the colonies included, but were not limited to, witchcraft, rape, perjury, adultery, and murder. The rationale behind the relatively small number of crimes punishable by death in colonial times was the colonies’ constant need of able-bodied workers to farm the land and participate in construction (Bohm 1999).

The second difference between Britain and colonial America in terms of capital punishment is seen in the methods of execution employed. Whereas in Britain such methods as drawing and quartering, beheading, and breaking on the wheel were still in use, the colonies utilized hanging, a method that the colonists considered to be relatively humane (Costanzo 1997).

Efforts to Abolish the Death Penalty

Although the founding fathers accepted the death penalty, many colonists were opposed to its use. In this regard, the movement to abolish the death penalty can be traced to the effort of the Quakers in Pennsylvania and, more specifically, to Benjamin Rush, a physician and one of the signers of the Declaration of Independence. The Quakers, who were opposed to capital punishment, were instrumental in the passage of the Great Act of 1682, which limited the use of the death penalty to the crimes of treason and murder. Rush, who would later found a movement to abolish capital punishment, argued not only that the use of the death penalty brutalize society, but that putting people to death was an improper use of state power (Costanzo 1997). Rush drew his ideas from the positivist writings of Cesare Beccaria, whose treatise On Crimes and Punishment ([1767] 1975) has been credited with influencing European thought concerning the death penalty, leading to a reduction in the number of crimes punishable by death in European countries as well as the reduction of barbarism in criminal law and procedure in general. Beccaria believed that the death penalty does not serve as a deterrent to crime because it is much too quick a punishment. He thought that the threat of long-term imprisonment would be much more effective in preventing future crime.

As a result of the work of abolitionists such as Benjamin Rush and Benjamin Franklin, several trends developed. In 1793, William Bradford, Pennsylvania’s attorney general, proposed that the law recognize gradations of murder based on a person’s culpability. First-degree murder would include any willful, deliberate, premeditated killing or a murder that occurred during the commission of an arson, rape, robbery, or burglary. His proposal, which was formally adopted in 1794, restricted the use of the death penalty to first-degree murder only (Randa 1997). A second noteworthy trend was the removal of executions from the public eye. Pennsylvania was the first state to do so in 1834 when it carried out an execution within the walls of a correctional facility. However, this trend was slow in producing the desired goal; the last public execution in the United States occurred in Missouri in 1937 (Bohm 1999).

The abolitionists also were responsible for the movement toward discretionary death penalty statutes and total abandonment of the penalty in other states. In 1838, Tennessee became the first state to eliminate mandatory death sentences for capital crimes, thereby allowing jurors to choose to implement other sentences. In 1846, the Michigan State Legislature voted to allow a sentence of death only for treason, giving Michigan the distinction of being the first state to effectively eliminate use of the death penalty. Rhode Island and Wisconsin repealed their death penalty laws for all crimes in 1852 and 1853, respectively (Bedau 1982). Over the next several decades other states, including Iowa, Maine, and Colorado, followed suit. During this same time most jurisdictions began limiting the types of crimes punishable by death to treason and murder (Schabas 1997).

Support for the movement to abolish the death penalty decreased from the early 1920s until the 1940s, as social scientists wrote of the social need for this form of punishment as a deterrent to crime (Bohm 1999). The execution rate in the United States continued to increase, peaking in 1935, when 199 people were executed. Following the mid-1930s, the numbers of executions declined as public support for the use of the death penalty decreased and as social action groups, such as the NAACP’s Legal Defense Fund, sought to appeal every capital conviction (Lifton and Mitchell 2000). Finally, in 1972, executions were temporarily halted while the U.S. Supreme Court decided on the constitutionality of capital punishment.

The Constitutionality of the Death Penalty

Prior to 1968, the challenges brought before the U.S. Supreme Court regarding the use of the death penalty were related mostly to methods of execution. In these cases, the Court upheld the states’ use of firing squads, electrocution, and even second attempts if the first ones failed.

From 1968 through 1972, the death penalty issues the Court addressed began to change. In U.S. v. Jackson (1968) the Supreme Court ruled as unconstitutional a provision in the federal death statute that allowed a capital defendant to escape a death sentence either by waiving his or her right to a jury trial or by pleading guilty. That same year, in Witherspoon v. Illinois (1968), the Court rejected the practice of “death qualifying” a jury during the penalty phase of a capital case, stating that to do so is to deprive the defendant of an impartial jury on the issue of sentence.

By 1970, several other aspects of the death penalty were under challenge. In the companion cases McGautha v. California and Crampton v. Ohio (1970), the defendants, both tried for murder and convicted, argued that their sentences violated the due process clause of the 14th Amendment to the U.S. Constitution, inasmuch as the juries had “unfettered discretion” in imposing a sentence of death. Neither jury had been given guidelines to follow, and the defendants argued that this omission constituted a fact of arbitrary and capricious sentencing. Also in question was whether a two-stage trial, or what is known as a bifurcated jury, is necessary in a capital case. In a two-stage trial, the jury determines only guilt or innocence in the first phase, and in the second phase the same jury determines the sentence. By a vote of six to three, the Supreme Court upheld the death sentences of both defendants. Scholars believe that with this decision the justices condoned laws that allow unfettered discretion as well as trials in which both guilt and sentence are determined by one jury during one deliberation (Bohm 1999).

In 1972, in the consolidated cases of Jackson v. Georgia, Branch v. Texas, and Furman v. Georgia (hereafter referred to as Furman v. Georgia 1972), the defendants challenged their death sentences because the juries in their trials were afforded complete discretion in determining whether to impose the sentence of death. Furman had been convicted of murder and Jackson and Branch had been convicted of rape. The Supreme Court granted certiorari to answer the question, “Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth Amendment?” (Furman v. Georgia 1972). By a vote of five to four, the Court reversed and remanded all three sentences of death. The majority opinion stated that the death penalty had been imposed in such an arbitrary and discriminatory manner in these cases that it constituted cruel and unusual punishment.

The Furman decision is noteworthy because in it the Supreme Court established that the death penalty per se is not unconstitutional, but that the manner in which the sentence is imposed may be unconstitutional. The Court suggested that states rewrite their capital punishment statutes to ensure the removal of the kind of juror discretion they found inFurman. As a result of Furman, the statutes that allowed for the use of the death penalty in 37 states, the District of Columbia, the military, and the federal government were deemed unconstitutional, and the death sentences of more than 600 prisoners were vacated (they became sentences of life imprisonment) (Bohm 1999). To avoid total abolition of the death penalty, many states passed new statutes. Some states attempted to remove the problematic juror discretion issue by mandating that a capital sentence be imposed automatically on a person convicted of any crime on a prescribed list. Others established specific guidelines to which judges and juries were required to adhere. Finally, some legislators believed that they might satisfy the Supreme Court by expanding the methods of execution used in their states to include the “cleaner” method of lethal injection.

It was not until the 1976 case of Gregg v. Georgia that the U.S. Supreme Court upheld a statute that appeared to be able to reduce juror discretion. Similar to Furman v. Georgia (1972), this case consolidated two others, Jurek v. Texas and Proffitt v. Florida. Troy Gregg was charged with committing armed robbery and murder, and, in accordance with the new Georgia statute, his trial was bifurcated. During the first phase of the trial, the jury found Gregg guilty of two armed robberies and murder. The judge then instructed the jurors that in the sentencing phase of the trial they could recommend a sentence of either death or life imprisonment for each count. Additionally, the judge told the jurors that they could not render a sentence of death unless they found beyond a reasonable doubt that at least one of three particular aggravating factors existed. (In general, an aggravating factor is a condition that makes the crime in question worse somehow; for example, if the victim was elderly, that can be an aggravating factor, as can the defendant’s having a long criminal history.) The three possible aggravating factors in this case were as follows:

a finding that the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, that the offender committed the offense of murder for the purpose of receiving money and the automobile, and that the offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they involved the depravity of the mind of the defendant. (Gregg v. Georgia 1976:3)

The jury found that two aggravating factors existed and recommended a sentence of death.

The Supreme Court upheld the new Georgia statute by a vote of seven to two, citing two reasons. First, the statute limits juror discretion by requiring that the state prove aggravating and mitigating factors at a separate penalty hearing. Second, it provides for the direct appeal of the capital conviction to the state’s highest court. The Georgia statute thus became the model for death penalty laws across the United States. The first execution after the reinstatement of the death penalty occurred in Utah in 1977, when Gary Gilmore was executed by a firing squad.

Methods of Execution

Currently, 38 states, the federal government, and the U.S. military authorize use of the death penalty. Although the primary method of execution used by 37 states, as well as the federal government and the military, is lethal injection, four other methods are approved: electrocution, lethal gas, hanging, and firing squad. Several states allow the use of more than one method as a matter of policy. For example, Arizona requires by statute that those sentenced to death after November 15, 1992, be executed by lethal injection. Individuals sentenced prior to that date may elect to die by lethal injection or by the gas chamber. Similarly, in Delaware, individuals sentenced before June 13, 1986, may elect to die by lethal injection or by hanging. All offenders sentenced after that date are executed by lethal injection.

One reason many states allow various methods of execution is so that they will have alternative methods already in place if their primary means are ruled unconstitutional. For example, Wyoming authorizes the use of the gas chamber if, and only if, lethal injection is forbidden. Oklahoma will employ electrocution if either lethal injection or the firing squad is ruled unconstitutional (Death Penalty Information Center 2002e). Table 1 lists the various methods of execution and the jurisdictions that authorize their use, as well as the number of people executed using each method since 1976.

The Demographics of Death Row: Past and Present

Tables 2, 3, and 4 present the demographic data available on the offenders currently on death rows in prisons across the United States. The data displayed in these tables highlight the disparities and patterns of discrimination that exist in capital sentencing. Table 2 provides a historical overview of all the individuals executed in America from 1608 through 2002, with the population broken down by race, gender, and age. Table 3 presents demographic data on the current death row population, and Table 4 shows all executions carried out in the United States from 1977 through 2002, broken down by jurisdiction and race. (Table 4 begins with 1977 because the death penalty literature focuses especially on those executions that took place after the Supreme Court’s pivotal decision in Gregg v. Georgia [1972].)

Female Offenders

It is noteworthy that the execution of female offenders is quite rare. From the first, Jane Champion’s 1632 execution in the colony of Virginia in 1632, to the most recent, the October 2002 execution of Aileen Wuornos in the state of Florida, there have been 564 documented executions of women in America (Death Penalty Information Center 2002g), the majority of which were carried out by hanging (Baker 1999). This figure represents 3% of the official number of executions that have ever occurred in the United States. The majority of the women who have been executed received the death penalty for crimes involving murder, witchcraft, or arson. Although the last two of these crimes are no longer punishable by death (arson is so punishable only if a homicide occurs as a result of the arson), cases of witchcraft and arson account for 51% of all women executed.

Female offenders have always been sentenced to death and executed at much lower rates than have their male counterparts. This is not surprising, given that women are less likely to be arrested for murder. Women account for only approximately 13% of all murder arrests, and they receive an even smaller proportion of imposed death sentences (2%) (Bohm 1999). Furthermore, since the Furman case in 1972, death sentences have been imposed on female offenders only 139 times. Additionally, women account for less than 2% (8) of the 749 executions conducted since 1976.

Given that women do commit murder, the question remains: Why are women less likely than men to be sentenced to death? It has been suggested that the death penalty statutes are written to favor female defendants. For example, when a woman is charged with a homicide, prosecutors are less able to demonstrate the presence of the kinds of aggravating circumstances required to sentence a person to death. Women are less likely than men to have past criminal records, to premeditate their crimes, or to be involved in felony murders. Female defendants are also more likely than males to bring up one or more mitigating factors in their defense, such as suffering from emotional disturbances or being under the influence of other persons who participated in the offenses. In capital murder cases, jurors and judges also tend to be more lenient toward female offenders because they believe that women are more likely than men to be rehabilitated (Streib 1993).

As of the end of 2002, 54 women were on death rows in U.S. prisons; this figure represents approximately 1.5% of the total 3,697 persons on death row in the United States at the time. (The discrepancy between the 139 death sentences imposed, as mentioned above, and the 54 remaining females on death row is the result of trial reversals and sentence commutations; see Death Penalty Information Center 2002g.) The majority of the 54 women on death row are white (54%); 33% are black, 11% are Latina, and 2% are Native American. As of 2002, 40% of these women were between the ages of 30 and 39, 29% were between the ages of 40 and 49, 13% were younger than 30, and the remaining 18% were 50 years of age or older. Among them, these 54 women were responsible for the murders of 81 victims, of whom 65% were white, 12% were black, 4% were Asian or Asian American, and 17% were Latino/a. Their victims were more often male than female, 53% versus 47%. Finally, most of their victims were between the ages of 18 and 49 (49%) (Death Penalty Information Center 2002g).

Minority Offenders

Many observers have argued that the use of the death penalty is racially biased, given the disproportionate numbers of minority group members who receive this penalty. Since the moratorium on capital punishment ended in 1976, 55.5% of those executed (406 individuals) have been white; 35.5% (260 people) have been black, 7% (48 people) have been Latino/a, 2% (13 people) have been Native American, and 1% (5 people) have been Asian Americans (NAACP 2002). The current racial composition of the death row population is 46% white, 43% black, 9% Latino/a, and 1% other (NAACP 2002).

Several studies have revealed patterns of discrimination in sentencing based on the races of the defendants and the victims. Baldus, Woodworth, and Pulaski (1990), for example, examined sentencing patterns in Georgia during the 1970s, using a sample of approximately 2,500 homicide cases. These analysts found that a defendant (white or black) who was found guilty of killing a white person was 4.3 times more likely to be sentenced to death than was a person who murdered a black person. Data from the NAACP Legal Defense Fund’s (2002) Death Row U.S.A. study support Baldus et al.’s findings. The NAACP reports that 169 black defendants who were convicted of taking the lives of white persons have been executed, whereas only 11 whites convicted of killing black persons have been executed. The NAACP found that 81% of the victims in death penalty cases were white, although only 50% of all homicide victims are white. The U.S. courts’ response to these empirical data has been to deny relief, arguing that a pattern of racial disparity does not prove racial bias in any particular case.

Youthful Offenders

The first execution of a juvenile offender in America occurred in 1642 with the execution of Thomas Graunger of Plymouth Colony, Massachusetts. Since that time, less than 2% of offenders, or fewer than 362 individuals, have been executed for crimes committed while they were juveniles (Death Penalty Information Center 2002a). However, the United States remains one of only three nations that executes offenders for crimes committed when they were juveniles; the other two are Iran and the Democratic Republic of the Congo.

The state’s taking of an individual’s life for an offense he or she committed as a juvenile remains one of the most controversial issues surrounding the use of the death penalty. This issue is best discussed within the context of three significant U.S. Supreme Court cases that have solidified the constitutionality of the use of the death penalty for juvenile offenders. In the case of Thompson v. Oklahoma (1988), the defendant, at age 15, killed his brother-in-law and mutilated the man’s body. He was tried as an adult, found guilty, and was given the death sentence. The question before the Court was whether or not it would be constitutional for the state to execute an offender who was 15 years of age or younger at the time the crime was committed. The justices chose not to answer the question before them directly. Instead, they ruled that any state without a prescribed minimum age requirement in its death penalty statute could not execute a person younger than 16 years of age.

In the 1989 companion cases Stanford v. Kentucky and Wilkins v. Missouri, the Court addressed the use of the death penalty for offenders who were 16 or 17 years of age at the time their crimes took place. Stanford and Wilkins, ages 17 and 16, respectively, were tried as adults and convicted of capital murder. On appeal, the defendants raised several issues in opposition of their sentences of death. These issues still remain at the heart of the battle to end the use of the death penalty for juvenile offenders. First, they argued that the use of the death penalty for a minor is contrary to the evolving standards of decency that mark the progress of a mature, civilized society, citing statistics regarding the actual numbers of executed juveniles in U.S. history to support this contention. Second, they argued that because most jurisdictions recognize age 18 as the legal age to exercise the right to vote, buy alcohol, and serve in the military, age 18 should also serve as the minimum age for execution. Finally, they argued that when capital punishment is used for juveniles, it fails to serve the acknowledged purpose of punishment. That is, this form of punishment does not deter juveniles from committing crimes because juveniles possess less well-developed cognitive skills than do adults, juveniles have less fear of death, and juveniles are less responsible and, therefore, less blameworthy.

By a vote of five to four, the U.S. Supreme Court ruled that the Eighth Amendment does not prohibit the use of the death penalty for a criminal a 16- or 17-year-old defendant. The Court did not agree that a national consensus against use of the death penalty for juveniles has been established and opined that society should expect to see small numbers of executed juveniles because so few capital offenses are committed by those under 17. Finally, the majority stated that the Court found it difficult to accept the argument that the guideline for determining if a person is old enough to vote, drink, and serve in the military can also be used to establish whether an individual is capable of understanding that taking the life of another person is wrong. At present, of the 40 jurisdictions that allow use of the death penalty, 16 have established age 18 as the minimum age for death penalty eligibility, 5 use age 17 as the minimum age, and 18 have set the minimum at 16 years of age (Streib 2002).

Fourteen years after the Supreme Court’s 1989 ruling, recent developments suggest that Justices Stevens, Souter, Ginsburg, and Breyer are ready to consider the constitutional question regarding the execution of juvenile offenders. This orientation comes in the wake of the Court’s refusal to consider direct relief for Kevin Stanford. The justices, two of whom were not sitting on the Court at the time of the earlier cases described above, have stated that they believe executing juvenile offenders is a “shameful practice” that is “inconsistent with the evolving standards of decency in a civilized society” (In re Stanford 2002). Nationally, there is a movement to end the execution of juvenile offenders altogether. Indiana has recently banned the use of the death penalty for offenders under the age of 18, and public interest groups are rallying support for the cause in Arkansas, Georgia, and Kentucky (Death Penalty Information Center 2002a).

Post-Furman, the United States has witnessed the execution of 18 juvenile offenders (less than 3% of the total number of executions since 1977); all of these executions involved males. All but one of these juveniles were 17 years old at the time they committed their crimes; one was 16 years old. When they died, these 18 individuals were between the ages of 24 and 38; 50% were white, 44% were black, and 5.5% were Latino (Streib 2002). Texas executed 10 of the offenders, Virginia executed 3, and Georgia, Louisiana, Missouri, South Carolina, and Oklahoma each executed 1 individual. Gerald Mitchell, the person most recently executed for committing the crime of murder while a juvenile, received the ultimate punishment in October 2001 (Death Penalty Information Center 2002a).

Capital Punishment At the Federal Level and within the U.S. Military

Within the U.S. legal system there are three separate criminal jurisdictions: state, federal, and military. In this section, I discuss the use of the death penalty in the latter two jurisdictions. With the exception of the U.S. Supreme Court, the federal government has not played a large role in the actual implementation of the death penalty, nor has the military. However, the death penalty statutes of these two jurisdictions list more capital crimes than do any of the 38 states that currently allow for the use of the death penalty.

The Federal Death Penalty

The number of offenses for which the U.S. government has employed the death penalty exceeds the numbers of capital offenses recognized at the state level. In the past, the federal government has employed hanging, electrocution, and even the gas chamber in carrying out the death penalty, mostly for the crime of murder. There have also been federal executions for the crimes of rape, kidnapping, and espionage. Since the execution of Thomas Bird in 1790, 336 men and 4 women have been executed in accordance with federal statutes; the most recent federal execution occurred in 2001 (Death Penalty Information Center 2002b).

The federal death penalty statute has changed significantly over time. In 1972, with the U.S. Supreme Court’s decision inFurman v. Georgia, the federal death penalty was ruled to be in violation of the Eighth Amendment as were state statutes. It was not until 1988, with the passage of the Anti-Drug Abuse Act, or the “drug kingpin statute,” that the federal death penalty was brought in line with state statutes and was, therefore, deemed constitutional. This statute made the death penalty mandatory for many drugrelated offenses, such as the murder of a law enforcement officer during any drug-related crime.

In January 1993, President George H. Bush authorized lethal injection as the sole method of execution for federal offenders. In 1994, Congress passed the Federal Death Penalty Act as part of the Violent Crime Control and Law Enforcement Act. This act increased to 60 the number of federal crimes for which the death penalty can be imposed. These include treason and espionage (even if a death does not occur), most homicides for which federal jurisdiction exists, and continuing criminal enterprise drug offenses that do not include homicide but do involve large quantities of drugs or drug-related money.

The Federal Death Penalty Act also states that the method of execution to be employed is that used in the state in which the federal sentence is handed down. If that state does not allow for the use of the death penalty, the U.S. government selects another state in which to carry out the execution. Since this law was enacted, both the number of federal prosecutions in which an offense punishable by death has been charged and the number of cases for which the U.S. attorney general has requested use of the death penalty have increased (Bohm 1999). Additionally, a federal death row offender is granted only one appeal as a matter of right for both conviction and sentencing. This appeal is made directly to the U.S. Court of Appeals for the circuit in which the case was tried. All other reviews, such as reviews by the Supreme Court, are discretionary. Only the president of the United States has the power to pardon a federal death row inmate (Death Penalty Information Center 2002b).

The most recent addition to federal death penalty laws took effect when President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996, an act created in response to the 1995 Oklahoma City bombing of the Alfred P. Murrah Federal Building. This act, which applies at both the federal and state levels, added four federal offenses to the list of capital crimes, created stricter filing deadlines for appeals, allowed for only one habeas corpus appeal in federal court, and limited the number of evidentiary hearings in death row cases. It was believed that these changes would not only speed up the death penalty process but also decrease the costs of the process (Schabas 1997).

The ways in which decisions are made to seek the death penalty in federal cases have also changed over time. After the passage of the Anti-Drug Abuse Act of 1988, the Department of Justice instituted a policy requiring all U.S. attorneys to submit any case in which the death penalty was being requested to the U.S. attorney general for review and approval. From 1988 until 1994, when Justice Department policy changed, approval to seek the death penalty was sought in 52 cases and received in 47 of those cases (U.S. Department of Justice 2000).

In 1995, the Department of Justice adopted the death penalty protocol that is in use today. At present, U.S. attorneys are required to submit each case in which a defendant is charged with a death-eligible crime, even if the death penalty is not a prime objective, to the Attorney General’s Review Committee on Capital Cases. This committee then makes a recommendation to the U.S. attorney general. Since this procedure has been in place, 682 death-eligible defendants have been evaluated, and the attorney general has authorized seeking the death penalty in 159 of those cases (U.S. Department of Justice 2000). Of these 159 defendants, 75% have been members of minority groups.

The U.S. Military and Capital Punishment

Although official records are unavailable, scholars believe that executions occurred in the military during the American Revolution. The first official records of military executions in the United States were kept by the Union Army during the Civil War, and these records indicate that 267 military personnel were executed. Of these, 53% were executed for desertion and 27% were executed for murder. Although executions were carried out in the U.S. military through both world wars, there are two noteworthy differences between the later executions and those recorded during the Civil War. First, the number of executions declined: only 35 documented executions occurred during World War I, and 147 executions occurred during World War II. Second, the majority of those executed in the later period had been convicted of the crime of murder (Bohm 1999). From the end of World War II until 1961, only 12 U.S. military personnel were executed. The most recent military execution took place in 1961, when U.S. Army Private John Bennett was hanged after being convicted of rape and attempted murder.

The Uniform Code of Military Justice classifies the 21 offenses punishable by death into three categories. The first of these categories includes espionage, felony murder, and rape; the second comprises offenses committed during wartime, such as desertion and willful disobedience of a superior officer; and the final category is made up of crimes considered to be breaches of the military code of conduct during wartime, such as willfulness in causing great human suffering or a serious injury (Bohm 1999).

Before a death sentence can be administered through a U.S. military court, the case must meet four criteria. First, all members of the military panel must vote to convict on the basis of a capital offense. Second, the government must have proved beyond a reasonable doubt at least one aggravating factor. Third, the panel must unanimously agree that any aggravating factors outweigh any mitigating and extenuating circumstances. And finally, all members of the panel must consent to the death sentence (U.S. v. Curtis 1991; Sullivan 1998). Thus it is noteworthy that, post-Furman, the Armed Forces Court of Appeals ruled that the military death penalty statute was unconstitutional because it failed to specify aggravating factors (U.S. v. Matthews 1983). In response, President Ronald Reagan signed an executive order in 1984 establishing new guidelines for military death penalty cases, including a list of 11 aggravating factors that serve to actualize the viability of the death penalty (Death Penalty Information Center 2002f).

Capital Punishment and Some Particular Classes of Offenders

Although public support for the death penalty has varied substantially since the 1970s, capital punishment has become a permanent fixture in U.S. society. However, since the Supreme Court’s landmark decision in Gregg v. Georgia (1976), opponents of the death penalty have argued that certain classes of criminal offenders should not be executed. In this section I briefly discuss some of the controversial issues surrounding this topic.

Mentally Retarded Defendants

Since the reinstatement of the death penalty in 1976, 35 mentally retarded offenders have been executed, and it is estimated that at least 300 persons currently incarcerated on death rows in U.S. prisons experience some degree of mental retardation (Death Penalty Information Center 2002d). Some analysts argue that executing mentally retarded persons constitutes cruel and unusual punishment, because these individuals are incapable of understanding their constitutional rights, are unable to assist in their own defense, and should not be held culpable for their actions (Penry v. Lynaugh 1989). This issue is further complicated by the lack of a single, uniform definition of mental retardation. For example, the American Association on Mental Retardation (AAMR) has changed its definition of mental retardation several times during the past two decades. Although this organization’s various definitions have maintained some commonality, they have differed concerning how the impairment affects an individual’s normal daily activities. The AAMR’s (2002) most recent definition of mental retardation is as follows:

Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originated before age 18. (P. 1)

In 1989, the Supreme Court granted certiorari in Penry v. Lynaugh to determine whether the execution of mentally retarded persons violates the Eight Amendment. The Penry v. Lynaugh case involved a woman who was brutally raped, beaten, and stabbed to death. Before she died, the victim described her assailant to the police, and the description led to the arrest of John Paul Penry, a parolee who had recently served prison time for rape. Penry confessed to the crime and he was charged with capital murder.

At Penry’s competency hearing, professionals testified that although Penry was 22 years of age, his mental age was 6½ and his IQ level was 54, a level at which a person is generally considered incompetent. Despite this testimony, the jury found Penry competent to stand trial. At the trial, state experts testified that although Penry had limited mental capacity, he held the potential to honor the law. The experts also testified that they believed that Penry’s low IQ scores underestimated his level of alertness. The jury found Penry guilty of capital murder and sentenced him to death.

In Penry v. Lynaugh, the defense argued that the application of the death penalty to a mentally retarded person with the mental capacity lower than that of a 7-year-old constitutes cruel and unusual punishment. The defense also argued that there was an emerging national consensus against executing the mentally retarded. However, by a vote of five to four, the justices stated that executing a mentally retarded person is not a violation of the Eighth Amendment and refuted the argument that a national consensus existed against executing the mentally retarded. At the present time, only two states, Maryland and Georgia, and the federal justice system prohibit the execution of mentally retarded persons. Although the Supreme Court overturned Penry’s death sentence because the jury at his trial was not allowed to take his mental capacity into account, on retrial Penry was again sentenced to death. In early 2001, the Court reviewed an appeal in Penry v. Johnson, at which time Penry’s death sentence was again overturned on the basis that the jury was not provided adequate instructions for considering mental retardation as a mitigating factor.

After Penry, more states enacted legislation prohibiting the execution of mentally retarded defendants; today 16 states forbid such executions. In the summer of 2002, the U.S. Supreme Court again agreed to review the constitutional basis for executing mentally retarded defendants, using the case of Daryl Atkins, who was sentenced to death in Virginia for the 1996 robbery and murder of a U.S. airman. His appeal challenged the “evolving standards of decency” clause set by the Court in Penry, asserting that a national consensus had emerged against the execution of mentally retarded persons. In delivering the majority opinion for the Court, Justice Stevens wrote that the execution of mentally retarded criminals constitutes cruel and unusual punishment and is, therefore, prohibited by the Eighth Amendment. Justice Stevens further stated that although a number of states no longer allow for the execution of mentally retarded criminals,

it was not so much the number of these States that is significant, but the consistency of the direction of change. It provided powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carriers even greater force when it is noted that the legislatures addressing the issue have voted overwhelmingly in favor of prohibition. (Atkins v. Virginia 2002:1-2)

This Supreme Court ruling is certain to have two particular results: First, the 20 states that allow for the execution of mentally retarded persons must now develop standards by which to determine the mental capacity of defendants in capital murder cases; and second, a significant number of inmates currently on death row are likely to petition for retrial on the basis of claims of mental retardation.

Innocence and the Death Penalty

The possibility that innocent persons may be executed remains one of the most important arguments against the use of the death penalty. Although the states and the federal government have expended great effort to minimize the chances that this may occur, evidence reveals that they have not always been successful. Since 1973, 102 persons have been released from death rows in various states based on evidence of their innocence (Death Penalty Information Center 2002c), and this number may continue to increase. This phenomenon is due in part to the expansion of the use of the death penalty in states such as New York and Kansas as well as the shorter appeal processes currently in vogue (McCann 1996).

There are several possible ways for a convicted individual to be declared innocent. One of these is for a government official to admit error in the person’s prosecution, but this is an event that has yet to occur. A convicted person may also be declared innocent through official exoneration—that is, official recognition that the he or she either was not involved in the crime or was convicted of a crime that did not occur. A finding of innocence may involve the dismissal of charges against the defendant or a verdict of not guilty at a retrial (Radelet and Bedau 1998).

Radelet and Bedau (1998), who conducted a historical analysis of death penalty cases, claim to have identified 416 cases involving 496 defendants who were convicted of capital crimes but were later found to be innocent. Among these 416 cases were 23 individuals who were innocent but had been executed and 22 people who were granted reprieves within 72 hours of their scheduled executions. Defenders of the death penalty challenge Radelet and Bedau’s findings, claiming that reasonable, unbiased judges would not allow a death sentence to be imposed based on inadequate evidence. Moreover, no court has ever acknowledged that an innocent person has been executed in the United States. Although supporters of the death penalty concede that errors may have occurred, they assert that such errors are a modest price to pay, given the social benefits derived from the law.

According to researchers, wrongful convictions occur for several reasons. The most common of these is perjury on the part of prosecution witnesses. The second leading cause of wrongful convictions is eyewitness misidentification. Other factors include false confessions or guilty pleas by innocent defendants who have been pressured by the police to confess to crimes they did not commit, the failure of prosecutors to dismiss charges in weak cases (especially high-profile cases), and the lack of high-quality legal representation for defendants (Gross 1996; Ofshe and Leo 1997; Radelet and Bedau 1998).

Currently, a nationwide social movement is calling for a moratorium on all executions until death penalty practices can be more closely examined. Several states, including Florida, Illinois, and Maryland, have voluntarily stopped executions pending inquiries into sentencing practices. Additionally, in 2001, members of Congress reintroduced the Innocence Protection Act, a law designed to protect the innocent from wrongful conviction. This act includes measures designed to provide qualified attorneys to defendants in capital murder cases and greater access to DNA testing on behalf of defendants.


The United States is currently experiencing a decline in the use of capital punishment, and a modest decrease in the number of death row inmates has occurred since 1976, when capital punishment was reinstated. Only 13 of the 40 jurisdictions that allow capital punishment carried out any executions during 2002. Judges and lawmakers are also taking steps to ensure that the death penalty is administered fairly. More than 100 persons who had been convicted of capital crimes have been freed since 1973 based on evidence of their innocence, the Supreme Court has ruled that the execution of mentally retarded offenders is unconstitutional, and the justices have recently signaled their willingness to reconsider the execution of offenders whose crimes were committed while the offenders were minors. Several states have voluntarily halted the scheduling of executions pending evaluations of sentencing practices. Despite these developments, however, legal and public debate will undoubtedly continue as issues such the execution of minors, racial disparities in sentencing, and the potential for execution of the innocent continue to be subjects of intense scrutiny.