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Home Capital Punishment

Last Updated: August 6, 2014

Capital Punishment: Should capital punishment be allowed in the United States?

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Introduction

SUPPORTERS ARGUE

The death penalty is a humane method of punishing brutal killers by granting them a quick and painless death. Public opinion supports capital punishment, and banning it would be an undemocratic act.

OPPONENTS ARGUE

The death penalty is a flawed punishment method because it is irreversible, and innocent people have undoubtedly been put to death for crimes they did not commit. Life imprisonment is a far more humane method of punishing convicted killers.

Issues and Controversies: Lethal Injection Room

Mike Simons/Getty Images

An electric chair and gurney used for lethal injections are visible from the witness room in the Southern Ohio Correctional Facility in Lucasville. Ohio's electric chair was decommissioned in February 2002; today, the state uses only lethal injection.

The United States is the only English-speaking Western democracy that still uses the death penalty to punish convicted killers; more than 30 U.S. states allow the use of the death penalty. Since 1976, the year the Supreme Court reinstated the death penalty after a four-year moratorium, more than 1,300 prisoners have been put to death. Texas, by far the leader in executions since 1976, had executed 515 prisoners as of July 2014, while the next-highest state, Oklahoma, had executed 111.

The most common form of execution in the United States is lethal injection, a series of intravenous injections of three drugs that causes a fatal overdose. More than 85% of the executions since 1976 have been by lethal injection. Other methods of execution are electrocution and exposure to poison gas. Death by firing squad and hanging have been employed just three times each as a capital-punishment method since 1976.

The public debate over capital punishment is typically revived whenever a high-profile execution takes place. In 2014, for example, Joseph R. Wood, who had been convicted of the 1991 killing of his ex-girlfriend and her father, took more than two hours to die after he was injected with a combination of legal drugs. Opponents of the death penalty argue that botched executions such as Wood's illustrate that the practice is a violation of the Eighth Amendment to the U.S. Constitution's ban on cruel and unusual punishment. Supporters, however, contend that Wood was a convicted murderer, and that sympathy for him is misplaced.

The debate over whether the death penalty should remain in use in the United States is one that invariably stirs up strong emotions. While supporters contend that murderers deserve to die as punishment for their crimes, opponents maintain that the death penalty is archaic and gruesome, and robs prisoners of their human right to live. Should the United States maintain the death penalty?

Opponents of the death penalty argue that there are too many flaws in the United States' criminal-justice system to validate a punishment as irreversible as the death penalty. Innocent people have undoubtedly been put to death in the past, they maintain, and there are likely people on death row who did not commit the crimes for which they are sentenced to die.  Opponents assert that the death penalty is simply amoral; life imprisonment, they assert, would be a better sentence for even the worst criminals.

Supporters of the death penalty, however, contend that capital punishment is perfectly moral, and believe that those who kill should themselves be put to death.  Proponents note that popular opinion in the United States supports the death penalty, and claim that overturning the practice would be an undemocratic act. Advocates also argue that studies have shown capital punishment to be an effective deterrent of violent crime.

Capital Punishment in U.S. History

Capital punishment has been a part of the United States' criminal justice system for most of the country's history. Indeed, until the early 20th century, death sentences were often carried out in public places such as parks and town squares. These public executions drew hundreds and occasionally thousands of people to witness the deaths—usually by hanging—of prisoners convicted of particularly heinous crimes.

The last public execution in the United States occurred in 1936 in Owensboro, Kentucky, when Rainey Bethea was hanged for the rape and murder of a 70-year-old woman. An estimated 20,000 people, including a sizeable media contingent from around the country, journeyed to Bethea's execution site just after sunrise on an August morning. The negative media coverage surrounding the event—reporters at the time characterized it as a grotesque "carnival"—eventually turned popular opinion against public executions. Executions have since been limited to only a few witnesses, including family members of the prisoner to be executed, as well as those of his or her victims.

The number of executions in the United States began to decline sharply in the early 1950s amid increasingly pervasive arguments that the death penalty violated the Eighth Amendment, which prohibits cruel and unusual punishment. In 1968, for the first time in U.S. history, no prisoners were executed. The years 1969 through 1972 were similarly execution-free.

In early 1972, the U.S. Supreme Court heard arguments in the case Furman v. Georgia, in which lawyers for the convicted murderer William Henry Furman argued that he did not deserve the death sentence handed down to him by a Georgia jury. Furman had been burglarizing the home of Henry Micke, who had returned home in the middle of Furman's robbery; Furman tripped while attempting to flee the scene, killing Micke after he tripped and accidentally discharged his gun.

The Court ruled 5–4 in the case that not only was Furman's sentence unfair but that the death penalty itself was unconstitutional. In addition to violating the Eighth Amendment's ban on cruel and unusual punishment, the Court ruled, the arbitrary nature of the death penalty violated the Fourteenth Amendment, which entitles all U.S. citizens to "equal protection of the laws." In his opinion in the case, Associate Justice Potter Stewart wrote that the death penalty is "unique…in its absolute renunciation of all that is embodied in our concept of humanity." He continued:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual…. I simply conclude that the Eighth and 14th Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

The decision in Furman v. Georgia essentially overruled any state laws that allowed the death penalty. Capital punishment remained illegal until 1976, when the Supreme Court voted 7-2 to reinstate it in the case Gregg v. Georgia. In its majority opinion, written by Stewart, the Court cited numerous new state laws that made the imposition of death sentences less arbitrary, and therefore less "cruel and unusual."  It also cited capital punishment's effectiveness as a crime deterrent. It also

After Gregg, many states chose to restore their death penalty laws. In 1977, Utah put convicted killer Gary Gilmore in front of a firing squad, making him the first person executed in the United States since 1967. Some states, however, did not institute the death penalty. Michigan, for example, continued to uphold its 130-year-old ban on capital punishment.

Executions were relatively rare during the decade and a half following the Gregg decision. In the 15-year period from 1977 to 1991, 157 executions were carried out in the United States, according to the Death Penalty Information Center (DPIC). (In comparison, there were 199 executions in the year 1935 alone.) Execution rates steadily increased throughout the 1990s, reaching a post-Gregg peak of 98 in 1999, then once more declined—the 37 executions carried out in 2008 marked the lowest such number in more than a decade. That number rose to 52 in 2009, but fell to 46 in 2010, and 43 in both 2011 and 2012. There were 39 executions in 2013. The federal government has carried out only one execution since 1976—the 2001 death by lethal injection of Timothy McVeigh for his role in the 1995 bombing of a federal building in Oklahoma City, Oklahoma, that killed 168 people.

Some opinion polls suggest that most Americans favor the death penalty, though those numbers have diminished somewhat since the early 1990s.

Many observers note that the death sentence is imposed disproportionately on African Americans. According to the human rights group Amnesty International, although African Americans constitute approximately 13% of the United States' population, about one out of every three executed prisoners since 1977 has been black. Additionally, in 1983, David Baldus, a law professor at the University of Iowa in Iowa City, led a study that found that black defendants were almost twice as likely as white defendants to receive the death penalty.

Issues and Controversies: States with Death Penalty (map)

Recent Death Penalty–Related Decisions and Legislation

The death penalty has not become any less controversial since its 1976 reinstatement. Anti–death penalty groups, such as the American Civil Liberties Union (ACLU), frequently challenge executions, often causing them to be pushed back. Moreover, some cases have been questioned by critics who believe that the individual sentenced to die is innocent.

One of the most visible death penalty cases has been that of Mumia Abu-Jamal, who in 1983 was convicted of the 1981 killing of police officer Daniel Faulkner and sentenced to death. Abu-Jamal maintained his innocence, acknowledging that he was on the scene when Faulkner was killed but maintaining that he was not the killer. The case garnered a substantial amount of attention in the 1990s, with supporters of Abu-Jamal claiming he had not been given a fair trial. A "Free Mumia" movement of Abu-Jamal's supporters arose, which the New York Times described as being "particularly prominent around college campuses, where students collected donations for his legal defense fund and sold buttons and posters carrying images of his pensive face and long dreadlocks." Critics of the death penalty—including the human rights organization Amnesty International—argued that the finality of the death penalty made it particularly egregious in a case such as Abu-Jamal's, where doubt was raised after a trial as to the fairness of the court.

In 2011, after years of legal struggles, a federal appeals court ordered that Abu-Jamal receive a new sentencing hearing because of misleading instructions given to the jury during Abu-Jamal's trial. The court's decision led Seth Williams, the district attorney in Philadelphia, Pennsylvania, where the case was tried, to drop the death penalty against Abu-Jamal in favor of a term of life in prison without the possibility of parole. While Abu-Jamal's supporters cheered the decision, supporters of the death penalty expressed disappointment. Faulkner's widow, Maureen, described the judges who called for Abu-Jamal to receive a new sentence "dishonest cowards."

Some states, meanwhile, have reconsidered their reliance on the death penalty. In 2000, for example, Governor George Ryan (R) of Illinois declared a statewide moratorium on executions, eventually granting clemency to the 167 prisoners on Illinois's death row. Ryan said at the time that he decided to take action after noting that 13 of the more than 100 exonerated death-row prisoners in the United States had been from Illinois.

Other states have since attempted to repeal their death penalty statutes, with varying degrees of success. Shortly after the Illinois moratorium was enacted, lawmakers in New Hampshire voted to ban executions there; however, the bill was vetoed by Gov. Jeanne Shaheen (D). In May 2002, Maryland's Democratic governor, Parris Glendening, suspended the death penalty in his state, only to see the suspension lifted the following January by newly elected Republican Governor Robert Ehrlich. New Hampshire and Maryland are among the states that currently employ the death penalty, while it remains banned in Illinois.

New York's death penalty law was declared unconstitutional by the state's court of appeals in 2004. In 2006, Governor Richard Codey (D) of New Jersey declared a temporary moratorium on executions, pending the results of a government-appointed commission's study of the effectiveness of capital punishment. (California and North Carolina have created similar death penalty commissions, but neither state issued a moratorium on the practice.) In 2007, Governor Jon Corzine (D) signed legislation formally abolishing the death penalty in New Jersey. In April 2012, Connecticut governor Dannel Malloy (D) signed legislation abolishing the death penalty; Maryland followed in 2013, becoming the 18th state to ban the practice.

Allegations of mishandled death penalty cases are fairly common, observers claim; capital punishment faces legal challenges nearly every week. For example, USA Today reported that during one seven-day span in June 2006, death penalty cases in Pennsylvania, Texas, and California were criticized by the U.S. Supreme Court as being unfairly prosecuted. That same week, an Oklahoma appeals court ordered a retrial for a man who had been sentenced to death row in 1982, ruling that key evidence in the trial might have been mishandled by a police laboratory assistant. Also during that week, an Illinois man who had been on death row for eight months saw his conviction overturned on the basis of DNA testing. (Illinois continues to maintain a death row even though it does not carry out executions.) Finally, a former judge in North Carolina publicly argued that week that the state should enact a two-year moratorium on the death penalty.

There have also been instances where death-row inmates have been exonerated; according to the DPIC, 139 former death-row inmates were freed between 1973 and 2011. Observers credit enhanced DNA-testing technology with proving the innocence of those wrongfully convicted prisoners.

Meanwhile, the 2005 renewal of the USA Patriot Act—a sweeping antiterrorism bill passed in the wake of terrorist attacks against the United States on September 11, 2001—expanded juries' powers to sentence criminals to death. In its renewed form, the Patriot Act added three crimes to the list of death penalty offenses: transporting materials used in a terrorist attack, helping to plot an attack on mass transit, and participating in an attack on maritime vessels. In each of these cases, the death penalty is only an option if the attack in question results in one or more fatalities. Initially, House lawmakers had sought to add a total of 41 death penalty–eligible crimes, including in cases in which a defendant did not have an intent to kill. In a compromise, the House and Senate pared down that list of 41 to three.

Two Supreme Court decisions in the 21st century have limited juries' ability to sentence prisoners to death. In the 2002 case Atkins v. Virginia, the Court found that executing the mentally handicapped violated the Eighth Amendment. In 2005, in Roper v. Simmons, the Court ruled that the death penalty could not be imposed for crimes committed by a defendant younger than 18 years old. Both Atkins and Roper are considered landmark decisions, reversing many years of significant legal precedent.

Several months after the Roper decision was handed down, Justice John Paul Stevens spoke about the death penalty at a Chicago event held by the American Bar Association, a professional organization for lawyers. Stevens, at the time one of the more liberal justices on the Supreme Court, argued that in light of the 100-plus exonerations of death-row inmates in the previous 30 years, "there must be serious flaws in our administration of criminal justice." Justices Ruth Bader Ginsburg and Anthony Kennedy have also publicly aired concerns about the legal process by which jurors sentence defendants to death, while Justices Samuel Alito Jr., Antonin Scalia, and Clarence Thomas have consistently defended this process.

In 2007, the United Nations (UN) urged all of its member nations to abolish the death penalty. The United States, joining North Korea, China, Iran, and the Sudan, opposed the resolution, which was supported by the European Union (EU), Turkey, Israel, and most of Latin America.

In 2008, the Supreme Court ruled 7–2 that lethal injection does not constitute cruel and unusual punishment, which is banned by the Eighth Amendment. The following year, it ruled, 5–4, that the execution of child rapists was not constitutional, provided that the rapist did not kill the victim.

In September 2011, Troy Davis was executed by the state of Georgia for the 1989 murder of police officer Mark MacPhail. Davis had obtained several postponements of his execution, vigorously maintaining his innocence and gathering a large group of ardent supporters. Most of the witnesses who testified against Davis during his trial had since recanted their stories, and many observers argued that there were legitimate reasons to believe that Davis might have been wrongly convicted. 

Death penalty opponents charged that the case illustrated the dangers of capital punishment, arguing that it was likely that the state of Georgia had just executed an innocent man. Defenders of the death penalty, however, argued that MacPhail's family, who had spoken in favor of Davis's execution, deserved the closure of knowing that the man who had been convicted of killing MacPhail had been put to death.

Supporters Argue: Executing Murderers a Moral Obligation

Death penalty advocates argue that there is a powerful moral aspect to putting convicted killers to death. John O'Sullivan, an editor for the conservative magazine National Review, contends that "the death penalty is sometimes the only punishment that seems equal to the horror of a particular crime—a cold-blooded poisoning, say, or the rape and murder of a helpless child, or the mass murders of the Nazis and Communists." Supporters argue that a person who chooses to take the life of a fellow human being forfeits his or her right to live—in short, they maintain, the punishment fits the crime.

Far from being "uncivilized," proponents claim, the death penalty is one of the more commendable aspects of the criminal justice system, punishing brutal violence with quick death. O'Sullivan argues that executions that are administered by state governments are vastly preferable to what would happen if an ordinary citizen attempted to achieve retribution for a loved one's murder. "[T]he replacement of private vendettas by state executions is as good a definition of the birth of civil society as political scientists can come up with," he writes.

Supporters charge that the death penalty is an effective deterrent to violent crime. Simply put, advocates maintain, it causes potential criminals to think twice before committing murder if they know in the back of their minds that they could be executed for it. Robert Blecker, a professor at New York Law School in Manhattan, argues that research shows that criminals "are cognizant of whether they are operating in a death-penalty state before they pull the trigger."

Capital-punishment advocates deny that the execution of Troy Davis—even if he was innocent—is reason to abolish the death penalty. The National Review's Jonah Goldberg points out that a few regrettable mistakes should not be grounds to do away with the death sentence:

I'm…opposed to police accidentally shooting bystanders or shop clerks mistaken for robbers.… [W]e all know that happens. And yet, I'm still in favor of cops carrying guns.… I'm against Air Traffic Controller errors that lead to deaths, but I'm still in favor of flying and air traffic controllers.… [W]hy is it that the death penalty is the only government function that must be abolished after a single error?

Other death penalty supporters note that cases such as Davis's may be grounds for amending or limiting the death penalty, but not abolishing it. New York Times columnist Ross Douthat writes, "[G]radually reforming the death penalty—imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well—might do more than outright abolition to address the larger problems with crime and punishment in America."

Supporters also dispute one of the statistics most commonly cited by death penalty critics, namely that more than 100 innocent prisoners on death row have been exonerated in the United States since 1976. Some of those prisoners, they note, were exonerated not by virtue of being proved innocent, but because of technicalities, such as prosecutorial misconduct. Besides, supporters argue, even if later evidence has shown that some people who were executed were innocent, forensic evidence has proved beyond a doubt that most people who are executed are in fact guilty. "We hear so much about the innocent people who've gotten off death row," Goldberg writes, but "We hear very little about the criminals who've had their guilt confirmed by the same techniques.… Death-penalty opponents are less eager to debate such cases because they want to delegitimize 'the system.'"

Opponents Argue: Death Penalty Unfair and Immoral

Opponents of the death penalty maintain that it is a barbaric, immoral practice that has no place in a civilized society. Putting criminals to death as punishment for murder, critics argue, sends a confusing and morally problematic message to the U.S. population. They claim that capital punishment denies people their most basic right: the right to live. Most death penalty opponents favor life imprisonment over execution, arguing that the former is much more humane. When the death penalty was reinstated in 1976, former Supreme Court Justice Arthur Goldberg said that the death penalty constituted cruel and unusual punishment and should be banned: "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."

Opponents contend that the 100-plus exonerated death-row inmates represent proof that the death penalty should be abolished. The relatively high margin of error in prosecuting death penalty cases, they assert, has surely led to innocent people having been put to death in the past. Life imprisonment is a preferable alternative to capital punishment, critics argue, because prisoners found to be innocent while serving a life sentence have some chance of resuming a normal life if their sentence is reversed. "As long as a prisoner remains alive," the website of the human rights group Amnesty International states, "he or she can hope for rehabilitation or exoneration in the case of a prisoner who is subsequently found to be innocent."

Death penalty opponents state that the execution of Troy Davis—who, they claim, was very likely not guilty of the crime of which he was convicted—clearly shows the dangers of capital punishment. Atlantic journalist Andrew Cohen writes:

When the state kills those whose guilt is in serious doubt, or when the state kills those to whom it has not given fair justice, it doesn't just perform an injustice upon the individual, the rule of law, and the Constitution. It also undermines the very legitimacy of the death penalty itself, for its continuing use as a sentencing option derives its civic and moral strength mostly from the fiction that it can be, and is, credibly and reliably imposed.

Opponents also argue that capital punishment is an example of institutionalized racism. More often than not, they maintain, death penalty cases involve black defendants on trial for allegedly murdering a white victim, facing sentencing from an all-white jury. Those opponents argue that such a scenario has racist undertones, stacking the deck unfairly against black defendants. "Nationwide, blacks and whites are victims of homicide in roughly equal numbers," David Dow, a law professor at the University of Houston writes in the New York Times, "yet 80 percent of those executed had murdered white people." He also argued that, since the death penalty was reinstated, "Texas has carried out 470 executions.… You can count on one hand the number of those executions that involved a white murderer and a black victim."

Although they concede that public opinion supporting the death penalty is still high, opponents of capital punishment note that such support has decreased in recent years. "There's a skepticism about the accuracy of the system and, to some degree, the fairness," says Richard Dieter, executive director of the DPIC. "You have religious leaders voicing concerns. You have conservatives. The lines aren't as clear as they once were."

The United States' reliance on the death penalty also puts it at odds with the rest of the Western world, opponents note. The United States is the only Western democracy to practice the death penalty, and international bodies such as the United Nations Human Rights Commission are officially opposed to capital punishment as well, critics point out. In 2005, the only countries that executed more criminals than the United States were China, Iran, and Saudi Arabia. More than 80 countries—including South Africa, Russia, and the Philippines—have abandoned the death penalty since 1970, they note. Opponents argue that those facts are proof that the international consensus is firmly against capital punishment, and the United States should fall in line with it.

Death Penalty Debate Unlikely to Dissipate

A debate as emotional as the one over the death penalty will undoubtedly continue for quite some time. Developments in the debate are in the news nearly every week. Although the number of U.S. executions has exhibited a downward trend during the first decade of the 21st century, the number of prisoners executed fluctuates from year to year. Meanwhile, 32 states still allow capital punishment. It remains to be seen whether any of those states will discontinue the practice.

Bibliography

Cohen, Andrew. "The Death of Troy Davis." Atlantic, September 21, 2011, www.theatlantic.com.

Coke, Tanya. "Reappraising Death: The New Debate over Capital Punishment." Open Society Foundations, June 21, 2002, www.soros.org.

"Death Penalty Debate Finally Produces Useful Result." USAToday, June 21, 2005, www.usatoday.com.

Dow, David. "Death Penalty, Still Racist and Arbitrary." New York Times, July 8, 2011, www.nytimes.com.

Goldberg, Jonah. "On the Death Penalty." National Review, September 28, 2011, www.nationalreview.com.

O'Sullivan, John. "Deadly Stakes." National Review, August 30, 2002, www.nationalreview.com.

Shepherd, Joanna. "Why Not All Executions Deter Murder." Christian Science Monitor, December 14, 2005, www.csmonitor.com.

Slevin, Peter. "More in U.S. Expressing Doubts About Death Penalty." Washington Post, December 2, 2005, www.washingtonpost.com.

"Supreme Court's Stevens Criticizes Death Penalty Use." USAToday, August 7, 2005, www.usatoday.com.

Thornburgh, Nathan. "Lethal Objection." Time, March 6, 2006, www.time.com.

Williams, Timothy. "Execution Case Dropped Against Abu-Jamal." New York Times, December 7, 2011, www.nytimes.com.

Willing, Richard. "Death Penalty Gains Unlikely Defenders." USA Today, January 6, 2003, www.usatoday.com.

Additional Sources

Additional information about capital punishment can be found in the following sources:

Banner, Stuart. The Death Penalty: An American History. Cambridge, Mass.: Harvard University Press, 2002.

Garland, David. Peculiar Institution: America's Death Penalty in an Age of Abolition. New York: Oxford University Press, 2010.

Contact Information

Information on how to contact organizations that either are mentioned in the discussion of capital punishment or can provide additional information on the subject is listed below:

Death Penalty Information Center
1015 18th St. N.W., Suite 704
Washington, D.C. 20036
Telephone: (202) 289-2275
Internet: www.deathpenaltyinfo.org

U.S. Bureau of Justice Statistics
810 Seventh St. N.W.
Washington, D.C. 20531
Telephone: (202) 307-0765
Internet: www.ojp.usdoj.gov/bjs

Victims of Crime and Leniency (VOCAL)
P.O. Box 4449
Montgomery, Ala. 36103
Telephone: (800) 239-3219
Internet: www.vocalonline.org

Keywords

For further information about the ongoing debate over the death penalty, search for the following words and terms in electronic databases and other publications:

Capital punishment
Cruel and unusual punishment
Furman v. Georgia
Lethal injection
Troy Davis

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