rows in American prisons. TheUnited States remains the only Western de - PDF document

rows in American prisons. TheUnited States remains the only Western democracy that takes the lives of individuals who have been convictedof what are known as capital offenses. In this chapter, I provide some historical background on the use of thewho are at. I conclude the chapter with an overview of some of the controversial issues relatedindividuals who are innocent of the crimes for which they have been convicted.IN AMERICAWhen the first European settlers arrived in colonial America, they brought with them the British tradition of in the New World was in the colony ofVirginia in 1622, when one Captain George Kendall was executed for the crime of treason. The was accepted as just punishment for a variety of offenses in the American colonies, but there are two striking in Britain at the time and the use of the inthe colonies. The first difference is found in the number of crimes for which the imposed. By 1760, Great Britain considered more than 100 offenses to be punishable by laws of the majority of the colonies listed fewer than a dozen capital offenses each. The numbers of capitalcrimes varied from colony to colony, but in most cases the laws describing capital offenses were accompaniedmurder. The rationale behind the relatively small number of crimes punishable by wasthe colonies' constant need of able-bodied workers to farm the land and participate in construction (BohmThe second difference between Britain and colonial America in terms of capital punishment is seen in themethods of execution employed. Whereas in Britain such methods as drawing and quartering, beheading, andbreaking on the wheel were still in use, the colonies utilized hanging, a method that the colonists considered tobe relatively humane (Costanzo 1997).EFFORTS TO ABOLISH THE DEATHPENALTYdeath can be traced to the effort of the Quakers in Pennsylvaniaand, more specifically, to Benjamin Rush, a physician and one of the signers of the Declaration ofGreat Act of 1682, which limited the use of the to the crimes of treason and murder. Rush, whodeath was an improper use of state power (Costanzo 1997). Rush drew his ideas from the positivist writings of Cesare Beccaria, whose treatise eccaria, whose treatise )death penalty,leading to a reduction in the number of crimes punishable by death in European countries as well as thereduction of barbarism in criminal law and procedure in general. Beccaria believed that the 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 ofmurder based on a person's culpability. First-degree murder would include any willful, deliberate, premeditatedkilling 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(Randa 1997). A second noteworthy trend was the removal of executions from the public eye. Pennsylvania wasthe 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 Statesoccurred in Missouri in 1937 (Bohm 1999). in sentences for capital crimes, thereby allowing jurors to choose to implement other sentences. In 1846, laws for all crimes in 1852 and 1853, respectively (Bedau 1982). Over the nextseveral decades other states, including Iowa, Maine, and Colorado, followed suit. During this same time most to treason and murder (Schabas 1997).social scientists wrote of the social need for this form of punishment as a deterrent to crime (Bohm 1999). The decreased and as social action groups, such as the NAACP's Legal Defense Fund, sought to appealthe U.S. Supreme Court decided on the constitutionality of capital punishment.DEATHPENALTYPrior to 1968, the challenges brought before the U.S. Supreme Court regarding the use of the sentence either by waiving his or her right to a jury trial or by pleadingin By 1970, several other aspects of the were under challenge. In the companion cases California (1970), the defendants, both tried for murder and convicted, argued thatthe juries had Òunfettered discretionÓ in imposing a sentence of Also in question was whether a two-stage trial, or what is known as a bifurcated jury, is necessary in a capitalcase. In a two-stage trial, the jury determines only guilt or innocence in the first phase, and in the secondphase the same jury determines the sentence. By a vote of six to three, the Supreme Court upheld the unfettered discretion as well as trials in which both guilt and sentence are determined by one jury during onedeliberation (Bohm 1999).Jackson v. Georgia, Branch v. Texas,GeorgiaFurman v. Georgia sentences because the juries intheir trials were afforded complete discretion in determining whether to impose the sentence of had been convicted of murder and Jackson and Branch had been convicted of rape. The Supreme Court grantedcertiorari to answer the question, ÒDoes the imposition and carrying out of the Georgia 1972). Bya vote of five to four, the Court reversed and remanded all three sentences of had been imposed in such an arbitrary and discriminatory manner in these casesThe in 37 states, the District of Columbia, the military, and the federal government were deemed sentences of more than 600 prisoners were vacated (they became sentences oflife imprisonment) (Bohm 1999). To avoid total abolition of the deathspecific guidelines to which judges and juries were required to adhere. Finally, some legislators believed that Methods of Execution in the United StatesMethodNumber ofExecutionsSinceJurisdictions That Authorize UseAlabama, Arizona, Arkansas, California, Connecticut,Delaware, Florida, Georgia, Idaho, Illinois, Indiana,Maryland, Mississippi, Missouri, Montana, Nevada,New Hampshire, New Jersey, New Mexico, NewPennsylvania, South Carolina, South Dakota,Tennessee, Texas, Utah, Virginia, Washington,Wyoming, U.S. military, U.S. governmentAlabama, Arkansas, Florida, [Illinois], Kentucky,Nebraska, a[Oklahoma], South Carolina, Tennessee, Arizona, California, Maryland, Missouri, [Wyoming]Delaware, New Hampshire, Washingtonelaware, New Hampshire, WashingtonSOURCE: method only if a current method isexample, Illinois allowsprimary method of execution.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 jurybeyond a reasonable doubt that at least one of three particular aggravating factors existed. (In general, anaggravating factor is a condition that makes the crime in question worse somehow; for example, if the victimwas elderly, that can be an aggravating factor, as can the defendant's having a long criminal history.) The threea finding that the offense of murder was committed while the offender was engaged in the commission of twoand the automobile, and that the offense of murder was outrageously and wantonly vile, horrible and inhuman,Gregg v. Georgia 1976:3) laws across the United States. The first occurred in Utah in 1977, when Gary Gilmore was Although the primary method of execution used by 37 states, as well as the federal government and thesquad. Several states allow the use of more than one method as a matter of policy. For example, Arizona after November 15, 1992, be executed by lethal injection.Delaware, Alloffenders 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 methodsalready in place if their primary means are ruled unconstitutional. For example, Wyoming authorizes the use ofthe gas chamber if, and only if, lethal injection is forbidden. Oklahoma will employ electrocution if either lethalTable 2 U.S. Executions by Race, Gender, and Age:5,9024146556Black7,084492813467114,48982013,9359681099Female14,489820 14,1489879997SOURCES: Espy and Smykla (1994), NAACP Legal Defense Information Centera. Executions as of December 17, DEATH ROW: PAST AND PRESENT rows in prisonsacross the United States. The data displayed in these tables highlight the disparities and patterns ofexecuted in America from 1608 through 2002, with the population broken down by race, gender, and age. Table row population, and Table 4 shows all executions carried out literature focuses especially on those executions that took place after the Supremein Gregg v.Georgia [1972].)It is noteworthy that the execution of female offenders is quite rare. From the first, Jane Champion's 1632the state of Florida, there have been 564 documented executions of women in America (Information Center 2002g), the majority of which were carried out by hanging (Baker 1999). This figurerepresents 3% of the official number of executions that have ever occurred in the United States. The majority ofthe women who have been executed received the for crimes involving murder, witchcraft, orarson. Although the last two of these crimes are no longer punishable by if ahomicide occurs as a result of the arson), cases of witchcraft and arson account for 51% of all women executed.Table 3 Demographics of Defendants Currently on Death Row in the United StatesNumberBlack MaleFemaleJuvenileMaleSOURCE: NAACP Legal Defense Fund and executed at much lower rates than have their malecounterparts. This is not surprising, given that women are less likely to be arrested for murder. Women accountfor only approximately 13% of all murder arrests, and they receive an even smaller proportion of imposed sentences (2%) (Bohm 1999). Furthermore, since the sentences have beenimposed on female offenders only 139 times. Additionally, women account for less than 2% (8) of the 749defendants. For example, when a woman is charged with a homicide, prosecutors are less able to demonstrateless likely than men to have past criminal records, to premeditate their crimes, or to be involved in felonymurders. Female defendants are also more likely than males to bring up one or more mitigating factors in theirdefense, such as suffering from emotional disturbances or being under the influence of other persons whoparticipated in the offenses. In capital murder cases, jurors and judges also tend to be more lenient towardfemale offenders because they believe that women are more likely than men to be rehabilitated (Streib Table 4 U.S. Executions by Jurisdiction and Race: 1977Ð2002WhiteBlackHispanicOther Texas149944243413622Oklahoma3413311918131810141361ArizonaDelaware66Illinois75California7163423332Maryland12 12WyomingSOURCE: Data as of February 2003 from rows in U.S. prisons; this figure represents approximately row are white (54%); 33% are black, 11% are Latina, and 2% are Native American. As13% were younger than 30, and the remaining 18% were 50 years of age or older. Among them, these 54women were responsible for the murders of 81 victims, of whom 65% were white, 12% were black, 4% wereAsian or Asian American, and 17% were Latino/a. Their victims were more often male than female, 53% versus47%. Finally, most of their victims were between the ages of 18 and 49 (49%) (Minority Offenders cide cases. These analysts found that a defendant is racially biased, given the disproportionate black) who was found guilty of killing a whiteperson was numbers of minority group members who receive this 4.3 times more likely to be sentenced to . Since the moratorium on capital punishment person who murdered a black person.Data from the ended in 1976, 55.5% of those executed (406 individuals) NAACP Legal Defense Fund's (2002) Row U.S.A. have been white; 35.5% (260 people) have been black, 7% study support Baldus et al.'sfindings. The NAACP reports (48 people) have been Latino/a, 2% (13 people) have been that 169 blackdefendants who were convicted of taking Native American, and 1% (5 people) have been Asian the lives ofwhite persons have been executed, whereas Americans (NAACP 2002). The current racial composition only 11Several studies have revealed patterns of discrimination in sentencing based on the races of the defendants andthe victims. Baldus, Woodworth, and Pulaski (1990), for example, examined sentencing patterns in Georgiadefendant (white or black) who was found guilty of killing a white person was 4.3 times more likely to be than was a person who murdered a black person. Data from the NAACP Legal Defense Row U.S.A. study support Baldus et al.s findings. The NAACP reports that 169 black 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 notprove racial bias in any particular case.Youthful OffendersThe first execution of a juvenile offender in America occurred in 1642 with the execution of Thomas Graunger ofPlymouth 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 (2002a). However, 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 for juvenile offenders. In the case of (1988), execute an offender who was 15 years of age or younger at the time the crime was committed. The justices for offenders who were 16 or 17 years of age at the time their crimes took place. Stanford andWilkins, ages 17 and 16, respectively, were tried as adults and convicted of capital murder. On appeal, the. These issues still remain at the heart for juvenile offenders. First, they argued that the use of thecivilized society, citing statistics regarding the actual numbers of executed juveniles in U.S. history to supportexercise the right to vote, buy alcohol, and serve in the military, age 18 should also serve as the minimum age , 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 for juveniles has been established and opined that society shouldunder 17. Finally, the majority stated that the Court found it difficult to accept the argument that the guidelinefor determining if a person is old enough to vote, drink, and serve in the military can also be used to establishwhether an individual is capable of understanding that taking the life of another person is wrong. At present, eligibility, 5 use age 17 as the minimum age, and 18 have set the minimum at 16 years of ageFourteen 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 ofjuvenile offenders. This orientation comes in the wake of the Court's refusal to consider direct relief for KevinStanford. The justices, two of whom were not sitting on the Court at the time of the earlier cases describedabove, have stated that they believe executing juvenile offenders is a Òshameful practiceÓ that is Òinconsistent 2002). for offenders under the age of 18, and public interest groups are rallying support for the causein Arkansas, Georgia, and Kentucky (were 17years old at the time they committed their crimes; one was 16 years old. When they died, these 18 individualswere 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, andcrime of murder while a juvenile, received the ultimate punishment in October 2001 (Within the U.S. legal system there are three separate criminal jurisdictions: state, federal, and military. In this 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 , nor has the military. However, the crimes than do any of the 38 states that currently allow for the use of the The number of offenses for which the U.S. government has employed the There have also been federal executions for the crimes of rape, kidnapping, and espionage. Since the executionThomas Bird in 1790, 336 men and 4 women have been executed in accordance with federal statutes; the statute has changed significantly over time. In 1972, with the U.S. Supreme Court'sFurman v. Georgia, as were state statutes. It was not until 1988, with the passage of the Anti-Drug Abuse Act, or the Òdrug kingpin mandatory for many drug-related offenses, such as themurder 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 Act as part of the Violent Crime Controland Law Enforcement Act. This act increased to 60 the number of federal crimes for which the state in which the federal sentence is handed down. If that state does not allow for the use of the , the U.S. government selects another state in which to carry out the execution. Since this law wasenacted, both the number of federal prosecutions in which an offense punishable by and the number of cases for which the U.S. attorney general has requested use of the increased (Bohm 1999). Additionally, a federal row offender is granted only one appeal as a matter ofin which the case was tried. All other reviews, such as reviews by the Supreme Court, are discretionary. Act of 1996, an act created in response to the 1995 Oklahoma Citybombing 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 foronly one habeas corpus appeal in federal court, and limited the number of evidentiary hearings in cases. It was believed that these changes would not only speed up the The ways in which decisions are made to seek the 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 allgeneral for review and approval. From 1988 until 1994, when Justice Department policy changed, approval to was sought in 52 cases and received in 47 of those cases (U.S. Department of JusticeIn 1995, the Department of Justice adopted the is not a prime objective, to the Attorney General's Review Committee on Capital Cases. Thiscommittee then makes a recommendation to the U.S. attorney general. Since this procedure has been in place, in 159 of those cases (U.S. Department of Justice 2000). Of these 159 defendants, 75% have beenmembers of minority groups.PunishmentAlthough official records are unavailable, scholars believe that executions occurred in the military during theAmerican Revolution. The first official records of military executions in the United States were kept by the UnionArmy during the Civil War, and these records indicate that 267 military personnel were executed. Of these, 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 andthose recorded during the Civil War. First, the number of executions declined: only 35 documented executionsoccurred during World War I, and 147 executions occurred during World War II. Second, the majority of thoseexecuted in the later period had been convicted of the crime of murder (Bohm 1999). From the end of Worldin 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 during wartime, such as desertion and willful disobedience of a superior officer; and the final category is madeup of crimes considered to be breaches of the military code of conduct during wartime, such as willfulness incausing great human suffering or a serious injury (Bohm 1999). 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, theAnd finally, all members of the panel must consent to the 1991; Sullivan the Armed Forces Court of Appeals ruled that the military 1983). Information Center 2002f).CLASSES OF OFFENDERSbecome a permanent fixture in U.S. society. However, since the Supreme Court's landmark decision in Gregg v.Georgia have argued that certain classes of criminal offenders shouldnot be executed. In this section I briefly discuss some of the controversial issues surrounding this topic. in rows in U.S. prisons experiencesome degree of mental retardation ( Information Center 2002d). Some analysts argue thatincapable of understanding their constitutional rights, are unable to assist in their own defense, and should not 1989). For example, the American Association on Mental Retardation(AAMR) the impairment affects an individual's normal daily activities. The AAMR's (2002) most recent definition ofmental retardation is as follows:adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originatedin case involved a woman whowas brutally raped, beaten, and stabbed to . Before she died, the victim described her assailant to the 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 and his IQ level was 54, a level at which a person is generally considered incompetent. Despite thisthat Penry's low IQ scores underestimated his level of alertness. The jury found Penry guilty of capital murderdefense 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 aexecuting the mentally retarded. At the present time, only two states, Maryland and Georgia, and the federal sentence because the jury at his trial was not allowed to take his mental capacity into account,on retrial Penry was again sentenced to sentence was again overturned on the basis that the jury was not more states enacted legislation prohibiting the execution of mentally retarded defendants; today 16constitutional basis for executing mentally retarded defendants, using the case of Daryl Atkins, who was in Virginia for the 1996 robbery and murder of a U.S. airman. His appeal challenged theemerged against the execution of mentally retarded persons. In delivering the majority opinion for the Court,punishment and is, therefore, prohibited by the Eighth Amendment. Justice Stevens further stated that althougha number of states no longer allow for the execution of mentally retarded criminals,It provided powerful evidence that today society views mentally retarded offenders as categorically less culpablethan the average criminal. The evidence carriers even greater force when it is noted that the legislaturesThis Supreme Court ruling is certain to have two particular results: First, the 20 states that allow for theof defendants in capital murder cases; and second, a significant number of inmates currently on row areInnocence and the minimize the chances that this may occur, evidence reveals that they have not always been successful. Since rows in various states based on evidence of their innocence Information Center 2002c), and this number may continue to increase. This phenomenon is in states such as New York and Kansas as well asThere are several possible ways for a convicted individual to be declared innocent. One of these is for agovernment 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 exonerationÑthat is, official recognition that thehe or she either was not involved in the crime or was convicted of a crime that did not occur. A finding ofinnocence 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 cases, claim to have identifiedgranted reprieves within 72 hours of their scheduled executions. Defenders of the Radelet and Bedau's findings, claiming that reasonable, unbiased judges would not allow a sentence tobe imposed based on inadequate evidence. Moreover, no court has ever acknowledged that an innocent personhave occurred, they assert that such errors are a modest price to pay, given the social benefits derived from thelaw.According to researchers, wrongful convictions occur for several reasons. The most common of these is perjuryon the part of prosecution witnesses. The second leading cause of wrongful convictions is eyewitnesspressured by the police to confess to crimes they did not commit, the failure of prosecutors to dismiss chargesin 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 practices can be more closely examined. Several states, including Florida, Illinois, and Maryland, havevoluntarily stopped executions pending inquiries into sentencing practices. Additionally, in 2001, members ofcases and greater access to DNA testing on behalf of defendants. row inmates has occurred since 1976, when capital punishment was reinstated. Only 13 oflawmakers are also taking steps to ensure that the were committed while the offenders were minors. Several states have voluntarily halted the scheduling ofexecutions pending evaluations of sentencing practices. Despite these developments, however, legal and publicdebate will undoubtedly continue as issues such the execution of minors, racial disparities in sentencing, andREFERENCES 10th ed. Washington, DC: American Association on Mental Retardation. Anti-Drug Abuse Act. 1988. 21 (00-8452), 536 U.S. 304, 2002.David V. vol. 10 no. (3) Baldus, David, George Woodworth, and Charles Pulaski. 1990. : A Boston: Northeastern University Press.Beccaria, Cesare. [1767] Bobbs-Merrill.Bedau, Hugo The New York: Oxford University Press. Cincinnati, OH: Anderson. New York: St. Martin's. 2002a. 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