Capital punishment in the United States

A map showing the use of the death penalty in the United States by individual states. Note that the death penalty is used throughout the United States for certain federal crimes.

  States with a valid death penalty statute

  States without the death penalty

Capital punishment is a legal penalty in the United States, currently used by 31 states, the federal government, and the military.^[1] Its existence can be traced to the beginning of the American colonies. The United States is the only Western country currently applying the death penalty,^[2] one of 56 countries worldwide applying it, and was the first to develop lethal injection as a method of execution, which has since been adopted by five other countries.^[3]

There were no executions in the United States between 1967 and 1977. In 1972, the U.S. Supreme Court struck down capital punishment statutes in Furman v. Georgia, reducing all death sentences pending at the time to life imprisonment.^[4]

Subsequently, a majority of states passed new death penalty statutes, and the court affirmed the legality of capital punishment in the 1976 case Gregg v. Georgia. Since then, more than 7,800 defendants have been sentenced to death,^[5] over 1,400 of them have been executed,^[6] more than 2,900 are still on death row,^[7] and 158 have been exonerated, but none of these have been executed.^[8][9] The death penalty is in practice applied only for murder involving an aggravating factor such as multiple victims, rape, robbery, or a victim under a certain age.^[10][11]

History

Pre-Furman history

Executions in the United States from 1608 to 2009

The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall,^[12] who was executed by firing squad^[13] at the Jamestown colony for allegedly spying for the Spanish government.^[14]

The Bill of Rights adopted in 1789 included the Eighth Amendment which prohibited cruel and unusual punishment. The Fifth Amendment was drafted with language implying a possible use of the death penalty, requiring a grand jury indictment for "capital crime" and a due process of law for deprivation of "life" by the government.^[15] The Fourteenth Amendment adopted in 1868 also requires a due process of law for deprivation of life by any state.

The Espy file,^[16] compiled by M. Watt Espy and John Ortiz Smykla, lists 15,269 people executed in the United States and its predecessor colonies between 1608 and 1991. From 1930 to 2002, there were 4,661 executions in the U.S., about two-thirds of them in the first 20 years.^[17] Additionally, the United States Army executed 135 soldiers between 1916 and 1955 (the most recent).^[18][19][20]

Early abolition movement

Three states abolished the death penalty for murder during the 19th century: Michigan in 1846, Wisconsin in 1853 and Maine in 1887. Rhode Island is also a state with a long abolitionist background, having repealed the death penalty in 1852, though it was theoretically available for murder committed by a prisoner between 1872 and 1984.

Other states which abolished the death penalty for murder before Gregg v. Georgia include: Minnesota in 1911, Vermont in 1964, Iowa and West Virginia in 1965 and North Dakota in 1973. Hawaii abolished the death penalty in 1948 and Alaska in 1957, both before their statehood. Puerto Rico repealed it in 1929 and the District of Columbia in 1981. Arizona and Oregon abolished the death penalty by popular vote in 1916 and 1964 respectively, but both reinstated it, again by popular vote, some years later: Arizona in 1918 and Oregon in 1978.^[21] Puerto Rico and Michigan are the only two U.S. jurisdictions to have explicitly prohibited capital punishment in their constitutions: in 1952 and 1964, respectively.

Constitutional law developments

Nevertheless, capital punishment continued to be used by a majority of states and the federal government for various crimes, especially murder and rape, from the creation of the United States up to the beginning of the 1960s. Until then, "save for a few mavericks, no one gave any credence to the possibility of ending the death penalty by judicial interpretation of constitutional law," according to abolitionist Hugo Bedau.^[22]

The possibility of challenging the constitutionality of the death penalty became progressively more realistic after the Supreme Court of the United States decided Trop v. Dulles in 1958, when the court said explicitly for the first time that the Eighth Amendment's cruel and unusual clause must draw its meaning from the "evolving standards of decency that mark the progress of a maturing society" rather than from its original meaning. Also in the 1932 case Powell v. Alabama, the court made the first step of what would be later be called "death is different" jurisprudence, when it held that any indigent defendant was entitled to a court-appointed attorney in capital cases—a right that was only later extended to non-capital defendants in 1963, with Gideon v. Wainwright.

Capital punishment suspended (1972)

Executions in the United States since 1960

In Furman v. Georgia, the U.S. Supreme Court considered a group of consolidated cases. The lead case involved an individual convicted under Georgia's death penalty statute, which featured a "unitary trial" procedure in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment. The last pre-Furman execution was that of Luis Monge on June 2, 1967.

In a 5–4 decision, the Supreme Court struck down the impositions of the death penalty in each of the consolidated cases as unconstitutional in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The Supreme Court has never ruled the death penalty to be per se unconstitutional. The five justices in the majority did not produce a common opinion or rationale for their decision, however, and agreed only on a short statement announcing the result. The narrowest opinions, those of Byron White and Potter Stewart, expressed generalized concerns about the inconsistent application of the death penalty across a variety of cases but did not exclude the possibility of a constitutional death penalty law. Stewart and William O. Douglas worried explicitly about racial discrimination in enforcement of the death penalty. Thurgood Marshall and William J. Brennan Jr. expressed the opinion that the death penalty was proscribed absolutely by the Eighth Amendment as cruel and unusual punishment.

The Furman decision caused all death sentences pending at the time to be reduced to life imprisonment, and was described by scholars as a "legal bombshell".^[4] The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States.^[23]

Capital punishment reinstated (1976)

U.S. Supreme Court seat in Washington, D.C.

Instead of abandoning capital punishment, 37 states enacted new death penalty statutes that attempted to address the concerns of White and Stewart in Furman. Some states responded by enacting mandatory death penalty statutes which prescribed a sentence of death for anyone convicted of certain forms of murder. White had hinted that such a scheme would meet his constitutional concerns in his Furman opinion. Other states adopted "bifurcated" trial and sentencing procedures, with various procedural limitations on the jury's ability to pronounce a death sentence designed to limit juror discretion.

On July 2, 1976, the U.S. Supreme Court decided Gregg v. Georgia^[24] and upheld 7–2 a Georgia procedure in which the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides the defendant's guilt; if the defendant is innocent or otherwise not convicted of first-degree murder, the death penalty will not be imposed. At the second hearing, the jury determines whether certain statutory aggravating factors exist, whether any mitigating factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty – either death or life in prison, either with or without parole. The same day in Woodson v. North Carolina^[25] and Roberts v. Louisiana,^[26] the court struck down 5–4 statutes providing a mandatory death sentence.

Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. Although hundreds of individuals were sentenced to death in the United States during the 1970s and early 1980s, only ten people besides Gilmore (who had waived all of his appeal rights) were actually executed prior to 1984.

Supreme Court narrows capital offenses

In 1977, the Supreme Court's Coker v. Georgia decision barred the death penalty for rape of an adult woman. Previously, the death penalty for rape of an adult had been gradually phased out in the United States, and at the time of the decision, Georgia and the U.S. Federal government were the only two jurisdictions to still retain the death penalty for that offense.

In the 1980 case Godfrey v. Georgia, the U.S. Supreme Court ruled that murder can be punished by death only if it involves a narrow and precise aggravating factor.^[27]

The U.S. Supreme Court has placed two major restrictions on the use of the death penalty. First, the case of Atkins v. Virginia, decided on June 20, 2002,^[28] held that the execution of intellectually retarded inmates is unconstitutional. Second, in 2005, the court's decision in Roper v. Simmons^[29] struck down executions for offenders under the age of 18 at the time of the crime.

In the 2008 case Kennedy v. Louisiana, the court also held 5–4 that the death penalty is unconstitutional when applied to non-homicidal crimes against the person, including child rape. Only two death row inmates (both in Louisiana) were affected by the decision.^[30] Nevertheless, the ruling came less than five months before the 2008 presidential election and was criticized by both major party candidates Barack Obama and John McCain.^[31]

Repeal movements and legal challenges

In 2004, New York and Kansas capital sentencing schemes were struck down by their respective state highest courts. Kansas successfully appealed the Kansas Supreme Court decision to the United States Supreme Court, who reinstated the statute in Kansas v. Marsh (2006), holding it did not violate the U.S. Constitution. The decision of New York Court of Appeals was based on the state constitution, making unavailable any appeal. The state lower house has since blocked all attempts to reinstate the death penalty by adopting a valid sentencing scheme.^[32] In 2016, Delaware's death penalty statute was also struck down by its state supreme court.^[33]

In 2007, New Jersey became the first state to repeal the death penalty by legislative vote since Gregg v. Georgia,^[34] followed by New Mexico in 2009,^[35][36] Illinois in 2011,^[37] Connecticut in 2012,^[38][39] and Maryland in 2013.^[40] The repeals were not retroactive, but in New Jersey, Illinois and Maryland, governors commuted all death sentences after enacting the new law.^[41] In Connecticut, the Connecticut Supreme Court ruled in 2015 that the repeal must be retroactive. New Mexico is the only state with remaining death row inmates and no present death penalty statute.^[42]

Nebraska's legislature also passed a repeal in 2015, but a referendum campaign gathered enough signatures to suspend it. Capital punishment was reinstated by popular vote on November 8, 2016. The same day, California's electorate defeated a proposal to repeal the death penalty, and adopted another initiative to speed up its appeal process.^[43]

Since Furman, 11 states have organized popular votes dealing with the death penalty through the initiative and referendum process. All resulted in a vote for reinstating it, rejecting its abolition, expanding its application field, specifying in the state constitution that it is not unconstitutional, or expediting the appeal process in capital cases.^[21]

Lethal injection era

The lethal injection room in Florida State Prison.

From 1976 to January 1, 2017, there were 1,442 executions, of which 1,267 were by lethal injection, 158 by electrocution, 11 by gas inhalation, 3 by hanging, and 3 by firing squad.^[44] Executions rose at a near-continuous pace until 1999, when it peaked at 98. After 1999, the number of executions lowered nearly every year, and the 20 executions in 2016 were the fewest since 1991.^[6]

The death penalty was a notable issue during the 1988 presidential election. It came up in the October 13, 1988 debate between the two presidential nominees George H. W. Bush and Michael Dukakis when Bernard Shaw, the moderator of the debate, asked Dukakis, "Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?" Dukakis replied, "No, I don't, and I think you know that I've opposed the death penalty during all of my life. I don't see any evidence that it's a deterrent, and I think there are better and more effective ways to deal with violent crime." Bush was elected and many, including Dukakis himself, cite the statement as the beginning of the end of his campaign.^[45]

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act to streamline the appeal process in capital cases. The bill was signed into law by President Bill Clinton, who had endorsed capital punishment during his 1992 presidential campaign.

In June 2015, the U.S. Supreme Court reaffirmed the constitutionality of lethal injection in Glossip v. Gross. Justice Breyer, joined by Justice Ginsburg, wrote a dissenting opinion saying it was time for the court to prohibit capital punishment entirely, believing it is "highly likely that the death penalty violates the Eighth Amendment" because of unreliability, arbitrariness, and "unconscionably long delays that undermine the death penalty's penological purpose."^[46]

Because Breyer and Ginsburg are not the first justices to change their minds on that issue, their opinion drew a scathing retort from Justice Scalia, joined by Justice Thomas, who began his concurring opinion by saying "Welcome to Groundhog Day". He expressed the view that whenever a justice asserts it is now time to judicially abolish the death penalty, he only advances the same contentions that have not convinced the court earlier.^[47]

Justice Thomas, joined by Justice Scalia, also wrote a concurring opinion in this case, saying that Breyer and Ginsburg are engaging in the "ceaseless quest to end the death penalty through undemocratic means" and that the court should never have prohibited mandatory death sentences, because they are the best way to impose a uniform application of the death penalty. He believed that it was contradictory for some judges to be willing to get rid of the death penalty on the grounds of a sentencing arbitrariness and delays for which the court itself is to blame.^[48]

Capital crimes

Aggravated murder

The amount of aggravating factors for seeking capital punishment of murder vary greatly from state to state. California for example having twenty-two,^[49] while New Hampshire has seven.^[50] However, some aggravating circumstances are nearly universal among death penalty states, such as robbery-murder, murder involving rape of the victim, and murder of an on-duty police officer.^[10]

Several states have included child murder to their list of aggravating factors, but the victim's age under which the murder is punishable by death varies between them. In 2011, Texas raised this age from six to ten.^[51]

In some states, the high number of aggravating factors has been criticized on account of giving prosecutors too much discretion in choosing cases where they believed capital punishment was warranted. In California especially, an official commission proposed in 2008 to reduce these factors to five (multiple murders, torture murder, murder of a police officer, murder committed in jail, and murder related to another felony).^[52] Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed.^[53]

Crimes against the state

The opinion of the court in Kennedy v. Louisiana says that the ruling does not apply to "treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State".^[54]

Since no one is on death row for such offenses, the court has yet to rule on the constitutionality of the death penalty applied for them.

Treason, espionage and large-scale drug trafficking are all capital crimes under federal law. Treason is also a punishable by death in six states (Arkansas, California, Georgia, Louisiana, Mississippi and Missouri). Vermont still has a pre-Furman statute providing the death penalty for treason despite repealing capital punishment in 1965.^[55] Large-scale drug trafficking is punishable by death in two states (Florida and Missouri).^[56] Aircraft hijacking is a capital crime in Georgia and Mississippi.

Legal process

The legal administration of the death penalty in the United States typically involves five critical steps: (1) prosecutorial decision to seek the death penalty (2) sentencing, (3) direct review, (4) state collateral review, and (5) federal habeas corpus.

Clemency, through which the Governor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.^[57]

Decision to seek the death penalty

While judges in criminal cases can usually impose a harsher prison sentence than the one demanded by prosecution, the death penalty can be handed down only if the accuser has specifically decided to seek it.

In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions remain marked by local "idiosyncrasies," suggesting they are not in keeping with the spirit of the Supreme Court's directive. This means that "the very types of unfairness that the Supreme Court sought to eliminate" may still "infect capital cases." Wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 "special circumstances," making nearly all premeditated murders potential capital cases.^[58]

A proposed remedy against prosecutorial arbitrariness is to transfer the prosecution of capital cases to the state attorney general.^[59]

Sentencing

Of the 31 states with the death penalty, 29 provide the sentence to be decided by a jury, and 28 require a unanimous sentence.

However, the states differ on what happens if the penalty phase results in a hung jury:^[60][61]

• In 4 states (Arizona, California, Kentucky and Nevada), a retrial of the penalty phase will be conducted before a different jury (the common-law rule for mistrial).^[62]
• In 2 states (Indiana and Missouri), the judge will decide the sentence.
• In the 22 other states, a hung jury results in a life sentence, even if only one juror opposed death. Federal law also provides that outcome.

In Alabama, the sentence is decided by the jury and at least 10 jurors must concur. A retrial happens if the jury deadlock.^[63]

Nebraska is the only state in which the sentence is decided by a three-judge panel. If one of the judges on the panel opposes death, the defendant is sentenced to life imprisonment.^[64] Montana is the only state where the trial judge decides the sentence alone.^[65]

In all states in which the jury is involved, only death-qualified veniremen can be selected in such a jury, to exclude both people who will always vote for the death sentence and those who are categorically opposed to it.

Direct review

If a defendant is sentenced to death at the trial level, the case then goes into a direct review.^[66] The direct review process is a typical legal appeal. An appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether the decision was legally sound or not.^[67] Direct review of a capital sentencing hearing will result in one of three outcomes. If the appellate court finds that no significant legal errors occurred in the capital sentencing hearing, the appellate court will affirm the judgment, or let the sentence stand.^[66] If the appellate court finds that significant legal errors did occur, then it will reverse the judgment, or nullify the sentence and order a new capital sentencing hearing.^[68] Lastly, if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty, a rarity, then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible.^[68] About 60 percent survive the process of direct review intact.^[69]

State collateral review

At times when a death sentence is affirmed on direct review, supplemental methods to attack the judgment, though less familiar than a typical appeal, do remain. These supplemental remedies are considered collateral review, that is, an avenue for upsetting judgments that have become otherwise final.^[70] Where the prisoner received his death sentence in a state-level trial, as is usually the case, the first step in collateral review is state collateral review, which is often called state habeas corpus. (If the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus.) Although all states have some type of collateral review, the process varies widely from state to state.^[71] Generally, the purpose of these collateral proceedings is to permit the prisoner to challenge his sentence on grounds that could not have been raised reasonably at trial or on direct review.^[72] Most often these are claims, such as ineffective assistance of counsel, which requires the court to consider new evidence outside the original trial record, something courts may not do in an ordinary appeal. State collateral review, though an important step in that it helps define the scope of subsequent review through federal habeas corpus, is rarely successful in and of itself. Only around 6 percent of death sentences are overturned on state collateral review.^[73]

In Virginia, state habeas corpus for condemned men are heard by the state supreme court under exclusive original jurisdiction since 1995, immediately after direct review by the same court.^[74] This avoids any proceeding before the lower courts, and is in part why Virginia has the shortest time on average between death sentence and execution (less than 8 years) and has executed 113 offenders since 1976 with only 5 remaining on death row as of June 2017.^[75][76]

To reduce litigation delays, other states require convicts to file their state collateral appeal before the completion of their direct appeal,^[77] or provide adjudication of direct and collateral attacks together in a "unitary review".^[78]

Federal habeas corpus

After a death sentence is affirmed in state collateral review, the prisoner may file for federal habeas corpus, which is a unique type of lawsuit that can be brought in federal courts. Federal habeas corpus is a type of collateral review, and it is the only way that state prisoners may attack a death sentence in federal court (other than petitions for certiorari to the United States Supreme Court after both direct review and state collateral review). The scope of federal habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which restricted significantly its previous scope. The purpose of federal habeas corpus is to ensure that state courts, through the process of direct review and state collateral review, have done a reasonable job in protecting the prisoner's federal constitutional rights. Prisoners may also use federal habeas corpus suits to bring forth new evidence that they are innocent of the crime, though to be a valid defense at this late stage in the process, evidence of innocence must be truly compelling.^[79] According to Eric Freedman, 21 percent of death penalty cases are reversed through federal habeas corpus.^[73]

James Liebman, a professor of law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995."^[80] Similarly, a study by Ronald Tabak in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47 percent of the habeas petitions filed by death row inmates were granted."^[81] The different numbers are largely definitional, rather than substantive: Freedam's statistics looks at the percentage of all death penalty cases reversed, while the others look only at cases not reversed prior to habeas corpus review.

A similar process is available for prisoners sentenced to death by the judgment of a federal court.^[82]

The AEDPA also provides an expeditious habeas procedure in capital cases for states meeting several requirements set forth in it concerning counsel appointment for death row inmates.^[83] Under this program, federal habeas corpus for condemned prisoners would be decided in about three years from affirmance of the sentence on state collateral review. In 2006, Congress conferred the determination of whether a state fulfilled the requirements to the U.S. attorney general, with a possible appeal of the state to the United States Court of Appeals for the District of Columbia Circuit. As of March 2016, the Department of Justice has still not granted any certifications.^[84]

Section 1983

If the federal court refuses to issue a writ of habeas corpus, the death sentence becomes final for all purposes. In recent times, however, prisoners have postponed execution through another way of federal litigation using the Civil Rights Act of 1871 — codified at 42 U.S.C. § 1983 — which allows people to bring lawsuits against state actors to protect their federal constitutional and statutory rights.

While the aforementioned appeals are normally limited to one and automatically stay the execution of the death sentence, Section 1983 lawsuits are unlimited, but the petitioner will be granted a stay of execution only if the court believes he has a likelihood of success on the merits.^[85]

Traditionally, Section 1983 was of limited use for a state prisoner under sentence of death because the Supreme Court has held that habeas corpus, not Section 1983, is the only vehicle by which a state prisoner can challenge his judgment of death.^[86] In the 2006 Hill v. McDonough case, however, the United States Supreme Court approved the use of Section 1983 as a vehicle for challenging a state's method of execution as cruel and unusual punishment in violation of the Eighth Amendment. The theory is that a prisoner bringing such a challenge is not attacking directly his judgment of death, but rather the means by which that the judgment will be carried out. Therefore, the Supreme Court held in the Hill case that a prisoner can use Section 1983 rather than habeas corpus to bring the lawsuit. Yet, as Clarence Hill's own case shows, lower federal courts have often refused to hear suits challenging methods of execution on the ground that the prisoner brought the claim too late and only for the purposes of delay. Further, the Court's decision in Baze v. Rees, upholding a lethal injection method used by many states, has narrowed the opportunity for relief through Section 1983.

Execution warrant

While the execution warrant is issued by the governor in several states, in the vast majority it is a judicial order, issued by a judge or by the state supreme court at the request of the prosecution.

The warrant usually sets an execution day. Some states instead provide a longer period, such as a week or 10 days to carry out the execution. This is designated to avoid issuing a new warrant in case of a last-minute stay of execution that would be vacated only few days or few hours later.^[87]

Distribution of sentences

Total number of prisoners on Death Row in the United States from 1953 to 2008

Within the context of the overall murder rate, the death penalty cannot be said to be widely or routinely used in the United States; in recent years the average has been about one death sentence for every 200 murder convictions.

Alabama has the highest per capita rate of death sentences. This is because Alabama was one of the few states that allowed judges to override a jury recommendation in favor of life imprisonment, a possibility it removed in March 2017.^[88][89]

Among states

The distribution of death sentences among states is loosely proportional to their populations and murder rates. California, which is the most populous state, has also the largest death row with over 700 inmates. Wyoming, which is the least populous state, has only one condemned man.

But executions are more frequent (and happen more quickly after sentencing) in conservative states. Texas, which is the second most populous state of the Union, carried out over 500 executions during the post-Furman era, more than a third of the national total. California has carried out only 13 executions during the same period.^[90][91][92]

Among races

African Americans made up 41% of death row inmates while making up only 12.6% of the general population. They have made up 34% of those actually executed since 1976. However, this is an under-representation relative to the proportion of convicted murderers; 52.5% of all homicide offenders between 1980 and 2008 were African Americans.^[93] According to a 2003 Amnesty International report, blacks and whites were the victims of murder in almost equal numbers, yet 80% of the people executed since 1977 were convicted of murders involving white victims.^[94]

Approximately 13.5% of death row inmates are of Hispanic or Latino descent, while they make up 17.4% of the general population.^[95]

Among sexes

As of October 1, 2014, men accounted for 98% of people on death row and 99% of executions since 1976.^[96]

Methods

Usage of lethal injection in the US.

  State uses only this method.

  State uses this method primarily but also has other methods.

  State once used this method, but does not today.

  State once adopted this method, but dropped before its use.

  State has never adopted this method.

Number of executions each year by the method used in the United States and the earlier colonies from 1608 to 2004. The adoption of electrocution caused a marked drop off in the number of hangings, which was used even less with the use of gas inhalation. After Gregg v. Georgia, most states changed to lethal injection, leading to its rise.

All 31 states with the death penalty provide lethal injection as the primary method of execution.

Some states allow other methods than lethal injection, but only as secondary methods to be used merely at the request of the prisoner or if lethal injection is unavailable.^[97][98]

Several states continue to use the historical three-drug protocol: an anesthetic, pancuronium bromide a paralytic, and potassium chloride to stop the heart.^[99] Eight states have used a single-drug protocol, inflicting only an overdose of a single anesthetic to the prisoner.^[99]

While some state statutes specify the drugs required, a majority do not, giving more flexibility to corrections officials.^[99]

Pressures from anti-death penalty activists and shareholders have made it difficult for correctional services to get the chemicals. Hospira, the only U.S. manufacturer of sodium thiopental, stopped making the drug in 2011.^[100] In 2016 it was reported that more than 20 U.S. and European drug manufacturers including Pfizer (the owner of Hospira) had taken steps to prevent their drugs from being used for lethal injections.^{[100][101][102]}

Since then, some states have used other barbiturates, such as pentobarbital or fast-acting benzodiazepine like midazolam.^[103] Also, many states have since bought lethal injection drugs to foreign furnishers, and most states have made it a criminal offense to reveal the identities of furnishers or execution team members.^[100][104] In November 2015, California adopted regulations allowing the state to use its own public compounding pharmacies to make the chemicals.^[105]

In 2009, Ohio approved the use of an intramuscular injection of 500 mg of hydromorphone (a 333-fold overdose for an opioid-naïve patient of this narcotic analgesic closely related to and five times stronger than morphine; this is the equivalent of an entire 50-ml bottle of Dilaudid HP, the most powerful commercially-available form, although the advantage of hydromorphone is its very high solubility allowing for solutions of almost arbitrary concentration; 500 mg of hydromorphone HCl as pure powder can be dissolved in isotonic saline in volumes as small as under 2 cc)^[106] and a supratherapeutic dose of midazolam as a backup means of carrying out executions when a suitable vein cannot be found for intravenous injection.^[107][108]

Lethal injection was held to be a constitutional method of execution by the U.S. Supreme Court in two cases: Baze v. Rees (2008) and Glossip v. Gross (2015).^[109][110]

Offender-selected methods

In the following states, death row inmates with an execution warrant may choose to be executed by:^[97][98]

• Electrocution in Alabama, Arkansas, Florida, Kentucky, South Carolina, Tennessee and Virginia.
• Gas inhalation in Arizona and California.
• Firing squad in Utah.
• Hanging in Washington.

In five states (Arizona, Arkansas, Kentucky, Tennessee and Utah), the alternative method is offered only to inmates sentenced to death for crimes committed prior to a specified date (usually when the state switched from the earlier method to lethal injection).

When an offender chooses to be executed by a means different from the state default method, which is always lethal injection, he loses the right to challenge its constitutionality in court (Stewart v. LaGrand, 1999).

The last executions by methods other than injection are as follows (all have chosen this method):

Backup methods

Depending on the state, the following alternative methods are statutorily provided in the event that lethal injection is either found unconstitutional by a court or unavailable for practical reasons:^{[97][98][111]}

• Electrocution in Florida, Oklahoma, South Carolina and Tennessee.
• Gas inhalation in California, Missouri, Oklahoma and Wyoming.
• Firing squad in Oklahoma and Utah.
• Hanging in New Hampshire.

Oklahoma is the only state allowing more than two methods of execution in its statutes, providing lethal injection, nitrogen hypoxia, electrocution and firing squad to be used in that order in the event that all earlier methods are unavailable. The nitrogen option was added by the Oklahoma Legislature in 2015 and has never been used in a judicial execution, though it is routinely used to give a painless death in animal euthanasia.^[112]

Three states (Oklahoma, Tennessee and Utah) have added back-up methods recently in 2014 or 2015 (or have expanded their application fields) in reaction to the shortage of lethal injection drugs.^[113]

Some states such as Florida have a larger provision dealing with execution methods unavailability, requiring their state departments of corrections to use "any constitutional method" if both lethal injection and electrocution are found unconstitutional. This was designed to make unnecessary any further legislative intervention in that event, but the provision apply only to legal (not practical) infeasibility.^[114][115]

In May 2016, an Oklahoma grand jury recommended the state to use nitrogen hypoxia as its primary method of execution rather than as a mere backup, after experts testified that the method would be painless, easy and "inexpensive".^[116]

Federal executions

The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place. If the state has no death penalty, the judge must choose a state with the death penalty for carrying out the execution.

The federal government has a facility and regulations only for executions by lethal injection, but the United States Code allows U.S. Marshals to use state facilities and employees for federal executions.^[117][118]

Execution attendance

The over 200 witnesses to the execution of Timothy McVeigh were mostly survivors and victims' relatives of the Oklahoma City bombing.

The last public execution in the U.S. was that of Rainey Bethea in Owensboro, Kentucky, on August 14, 1936.

It was the last execution in the nation at which the general public was permitted to attend without any legally imposed restrictions. "Public execution" is a legal phrase, defined by the laws of various states, and carried out pursuant to a court order. Similar to "public record" or "public meeting," it means that anyone who wants to attend the execution may do so.

Around 1890, a political movement developed in the United States to mandate private executions. Several states enacted laws which required executions to be conducted within a "wall" or "enclosure" or to "exclude public view." Most states laws currently use such explicit wording to prohibit public executions, while others do so only implicitly by enumerating the only authorized witnesses.^[119]

All states allow news reporters to be execution witnesses for information of the general public, excepted Wyoming which allow only witnesses authorized by the condemned.^{[120][121][122]} Several states also allow victims' families and relatives selected by the prisoner to watch executions. An hour or two before the execution, the condemned is offered religious services and to choose his last meal (except in Texas which abolished it in 2011).

The execution of Timothy McVeigh on June 11, 2001, was witnessed by over 200 people, most by closed-circuit television.

Public opinion

Gallup, Inc. monitors support for the death penalty in the United States since 1937 by asking "Are you in favor of the death penalty for a person convicted of murder?" In their poll of October 2016, 60% of respondents said they were in favor and 37% were opposed.^[123] A month earlier, a Pew Research poll found that 49% of Americans supported the death penalty for convicted murderers and 42% opposed, down from 80% in 1974 and the lowest support in 40 years.^[124]

When persons surveyed are given a choice between the death penalty and life without parole for persons convicted of capital crimes, support for execution has traditionally been significantly lower than in polling that asks only if a person does or does not support the death penalty. In 2010, for instance, a Gallup poll that offered a choice showed 49% favoring the death penalty and 46% favoring life imprisonment.^[125]

On the other hand, in November 2009, another Gallup poll found that 77% of Americans say that September 11 attacks' mastermind Khalid Sheikh Mohammed should get the death penalty if convicted, including 12 who normally opposed the death penalty when asked the 1937 question.^[126] A similar result was found in 2001 when respondents were polled about the execution of Timothy McVeigh for the Oklahoma City Bombing that killed 168 victims.^[127]

Debate

Capital punishment is a controversial issue, with many prominent organizations and individuals participating in the debate. Amnesty International and some religions oppose capital punishment on moral grounds. The Innocence Project works to provide counsel to prisoners, including those on death row, in order to free those who are wrongly convicted. It has made use of the DNA tests available since the late 1980s which have in some cases shown conclusively that a particular defendant could not have committed the crime.

Some law enforcement organizations, and some victims' rights groups support capital punishment.

The United States is one of only five industrialized democracies that still practice capital punishment. Japan, Singapore, and Taiwan have executed prisoners in recent years. South Korea has a moratorium in effect.

Religious groups are widely split on the issue of capital punishment.^[128] The Fiqh Council of North America, a group of highly influential Muslim scholars in the United States, has issued a fatwa calling for a moratorium on capital punishment in the United States until various preconditions in the legal system are met.^[129]

In October 2009, the American Law Institute voted to disavow the framework for capital punishment that it had created in 1962, as part of the Model Penal Code, "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." A study commissioned by the institute had said that experience had proved that the goal of individualized decisions about who should be executed and the goal of systemic fairness for minorities and others could not be reconciled.^[130] In total, as of January 2017, 157 prisoners have been exonerated. either acquitted, or received pardons or commutations on the basis of possible innocence, between 1973 and 2015.^[131][132]

Arguments for and against capital punishment are based on moral, practical, and religious grounds. Advocates of the death penalty argue that it deters crime, is a good tool for prosecutors (in plea bargaining for example),^[133] improves the community by eliminating recidivism by executed criminals, provides closure to surviving victims or loved ones, and is a just penalty for the crimes it punishes. Since 1996, 24 studies were published in peer-reviewed journals about the deterrent effect of the death penalty: 17 concluded that it is more deterrent than life imprisonment, 5 that it is not, and two were inconclusive.^[134]

Opponents deny that the death penalty is an effective means of deterring crime.^[135] In addition, its use risks the execution of the innocent, it is unnecessarily barbaric in nature, it cheapens human life, and puts a government on the same base moral level as those criminals who have murdered.^[136] Furthermore, some opponents argue that it is applied in an arbitrary manner, in a criminal justice system that has been shown to be biased due to the systemic influence of racial, socio-economic, geographic, and gender. As a result, the current practice of capital punishment is immoral and illegitimate.^[137]

Another argument (specific to the United States) in the capital punishment debate is the cost. The convict is more likely to appeal the death penalty sentence than one for life without parole.^[138] But, others, who contest this argument, say that the greater cost of appeals where the prosecution does seek the death penalty is offset by the savings from avoiding trial altogether in cases where the defendant pleads guilty to avoid the death penalty.^[139]

Various commentators had predicted that the death penalty would likely have disappeared in the United States if Hillary Clinton had been elected U.S. President in November 2016 and allowed to appoint a liberal Supreme Court Justice instead of the late Antonin Scalia. But since Donald Trump won the contest and the people in three states voted the same day for ballot measures supporting capital punishment, columnists then came to the conclusion that it will remain indefinitely.^{[140][141][142]}

Clemency and commutations

The largest number of clemencies was granted in January 2003 in Illinois when outgoing Governor George Ryan, who had already imposed a moratorium on executions, pardoned four death-row inmates and commuted the sentences of the remaining 167 to life in prison without the possibility of parole (LWOP).^[143] When Governor Pat Quinn signed legislation abolishing the death penalty in Illinois in March 2011, he commuted the sentences of the fifteen inmates on death row to life imprisonment.^[37]

Previous post-Furman mass clemencies took place in 1986 in New Mexico, when Governor Toney Anaya commuted all death sentences because of his personal opposition to the death penalty. In 1991, outgoing Ohio Governor Dick Celeste commuted the sentences of eight prisoners, among them all four women on the state's death row. And during his two terms (1979–1987) as Florida's Governor, Bob Graham, although a strong death penalty supporter who had overseen the first post-Furman involuntary execution as well as 15 others, agreed to commute the sentences of six people on the grounds of doubts about guilt or disproportionality.

Execution hiatus

All executions were suspended through the country between September 2007 and April 2008. At that time, the U.S. Supreme Court was examining the constitutionality of lethal injection in Baze v. Rees. This was the longest period with no executions in the United States since 1982. The Supreme Court ultimately ruled that this method was constitutional, upheld by a 7–2 margin.

In addition to the states that have no valid death penalty statute, the following states and jurisdictions are noted that have an official moratorium, or have had no executions for more than ten years, as of 2017:

Kansas, New Hampshire and Wyoming have also no executions for over ten years, but in these states it is because of the lack of death row inmates having exhausted the appeal process.

Since 1976, four states have executed only condemned prisoners who voluntarily waived further appeals: Pennsylvania has executed three inmates, Oregon two, Connecticut one, and New Mexico one.

In North Carolina, executions are suspended following a decision by the state's medical board that physicians cannot participate in executions, which is a requirement under state law.

In California, United States District Judge Jeremy Fogel suspended all executions in the state on December 15, 2006, ruling that the implementation used in California was unconstitutional but that it could be fixed.^[148]

On November 25, 2009, the Kentucky Supreme Court suspended executions until the state adopts regulations for carrying out the penalty by lethal injection.^[149]

In November 2011, Oregon Governor John Kitzhaber announced a moratorium on executions in Oregon, canceling a planned execution and ordering a review of the death penalty system in the state.^[150]

On February 11, 2014, Washington Governor Jay Inslee announced a capital punishment moratorium. All death penalty cases that come to Inslee will result in him issuing a reprieve, not a pardon or commutation.^[151]

On February 13, 2015, Pennsylvania Governor Tom Wolf announced a moratorium on the death penalty. Wolf will issue a reprieve for every execution until a commission on capital punishment, which was established in 2011 by the Pennsylvania State Senate, produces a recommendation.^[152] Effectively there was a moratorium in place, as the state had not executed anyone since Gary M. Heidnik in 1999.

See also

• Capital punishment debate in the United States
• Capital punishment by the United States federal government
• List of United States Supreme Court decisions on capital punishment
• List of offenders executed in the United States in 2017
• List of death row inmates in the United States
• List of last executions in the United States by crime

References

Further reading

Books

• Bakken, Gordon Morris, ed. (2010). Invitation to an Execution: A History of the Death Penalty in the United States. University of New Mexico Press
• Banner, Stuart (2002). The Death Penalty: An American History. Harvard University Press. ISBN 0-674-00751-4.
• Bessler, John D. (2012) Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment. Boston, MA: Northeastern University Press;
• Blecker, Robert (2013). The Death of Punishment: Searching for Justice among the Worst of the Worst. St. Martin's Press;
• Delfino, Michelangelo and Mary E. Day. (2007). Death Penalty USA 2005–2006 MoBeta Publishing, Tampa, Florida. ISBN 978-0-9725141-2-5; and Death Penalty USA 2003–2004 (2008). MoBeta Publishing, Tampa, Florida. ISBN 978-0-9725141-3-2.
• Dow, David R., Dow, Mark (eds.) (2002). Machinery of Death: The Reality of America's Death Penalty Regime. Routledge, New York. ISBN 0-415-93266-1 (cloth), ISBN 0-415-93267-X (paperback) (Provides critical perspectives on the death penalty)
• Garland, David (2010). Peculiar Institution: America's Death Penalty in an Age of Abolition. Harvard University Press.
• Hartnett, Stephen John (2010). Executing Democracy, Volume 1: Capital Punishment and the Making of America, 1683–1807. East Lansing, MI: Michigan State University Press.
• Hartnett, Stephen John (2012). Executing Democracy, Volume 2: Capital Punishment and the Making of America, 1635–1843. East Lansing, MI: Michigan State University Press.
• Lane, Charles (2010). Stay of Execution: Saving the Death Penalty from Itself. Rowman & Littlefield Publishers.
• Megivern, James J. (1997), The Death Penalty: An Historical and Theological Survey. Paulist Press, New York. ISBN 0-8091-0487-3
• Osler, Mark William (2009). Jesus on Death Row: The Trial of Jesus and American Capital Punishment. Abingdon Press. ISBN 978-0-687-64756-9
• Prejean, Helen (1993). Dead Man Walking. Random House. ISBN 0-679-75131-9 (paperback)
  (Describes the case of death row convict Elmo Patrick Sonnier, while also giving a general overview of issues connected to the death penalty)

Journal articles

• Vidma, Neil and Phoebe Ellsworth. "Public Opinion and the Death Penalty" (Archive). Stanford Law Review. June 1974. Volume 26, pp. 1245–1270.
• Hoffmann, Joseph L. (2005). "Protecting the Innocent: The Massachusetts Governor's Council Report." 95 J. of Crim. L. & Criminology 561.

External links

• Video depicting the abolition of capital punishment in the United States between 1846 and 2014 on YouTube
• Prisoners Executed Under Civil Authority in the United States, by Year, Region, and Jurisdiction, 1977–2012 Bureau of Justice Statistics
• United States of America: Death Penalty Worldwide Academic research database on the laws, practice, and statistics of capital punishment for every death penalty country in the world.