Pros and Cons of Death Penalty

February 14, 2022

Pros and Cons of Death Penalty

The death penalty has existed since ancient times. In its early days, the death penalty imposed as punishment was a form of private justice. It was not applied by the state, but rather by the family or tribe of the person who had suffered damage  (G. Rabbah). With the appearance of God, the rationale for imposing the death penalty shifted from private revenge to a divine one. 

            The first death penalty law was the lex talonis of the God of Hamurabi M.H. Reggio, 2008). Later, in the seventh century BC, the Draconian Code of Athens prescribed death as a punishment for all crimes. Finally, the Roman law of twelve tablets codified it in the fifth century BC (Death Penalty Information Center). As far as 437 BC, the usefulness of the death penalty was questioned. By arguing its non-deterrent effect, Diodotus persuaded the Athenian assembly to reverse its decision to execute all adult males of the city of Mitylene. 

The death penalty was applied during the Middle Ages in an arbitrary and discriminatory way. The feudal system gave many people, not only the king or emperor, the power to impose capital punishment. This expansion of power led to the arbitrary imposition of the death penalty by the Feudatories (When Life Generates Death (Legally)-History). Also in this period, the fusion of political and religious powers led to the imposition of the death penalty for crimes committed against church. Methods of applying the death penalty differed for nobility, freemen and slaves. In order to reduce pain, the nobles were executed by cutting off their heads, while the others experienced death by hanging or poison.

In the eighteenth century, various philosophers called for the abolition of the death penalty. Montesquieu, for example, called for its restriction to murder, attempted murder, certain types of manslaughter and some offences against property. Beccaria, on the contrary, did not call for its limitation but rather for its complete abolition. The writings of Beccaria ended the distinction in the application of the death penalty between poor and nobles, and his ideas led to the promulgation of a penal code in Tuscany that eliminated it entirely  (When Life Generates Death (Legally)-History)

From that time on, the abolitionist movement has been flourishing. Michigan was the first jurisdiction to abolish the death penalty in 1846. Twenty years later, Venezuela abolished the death penalty, the Netherlands followed suit in 1870 and Costa Rica in 1882. Likewise, Brazil and Ecuador abolished the death penalty in the late 1890s and Panama, which joined the club of the states of the world in 1903, has joined the abolitionist club  since its formation  (When Life Generates Death (Legally)-History)

The progress of the abolitionist movement was temporarily slowed with the rise of totalitarianism in Europe after World War Two, and it was not until 1948 that the abolitionist movement regained its strength. In 1948, the Universal Declaration of Human Rights legitimized the struggle towards abolition of the death penalty. Since World War Two, approximately one state per year has abolished the death penalty.

In his report submitted to the UN, Novel Morris reported that twelve countries were totally abolished by the end of 1965 and eleven were abolitionist for ordinary crimes (United Nations, Capital Punishment, 1967). Three decades later, Roger Hood reported that the number of abolitionist countries has been on an increase since the last report submitted to the UN by Norvel Morris. In his book, The Death Penalty: A Worldwide Perspective, Hood stated that fifty-eight countries are totally abolitionist, fourteen are abolitionist for ordinary crimes and thirty de facto abolitionists  (Hood, p. 12-13).

Over the years, the abolitionist movement has succeeded in persuading many previously retentionist countries that the death penalty is a deadly evil. Recently, more than half the countries of the world have abolished the death penalty de fecto or de jure. 

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Although an international customary norm that bans the imposition of the death penalty has not yet materialized, the fact is that the abolition of the death penalty is becoming increasingly accepted. This acceptance is paving the way for an international customary norm banning capital punishment altogether.

The Death Penalty in the United States of America

The application of the death penalty in the United States of America dates back to the colonial period  (Prinzo). The first person executed in the US was Captain George Kendall in 1608. Executed in the Jamestown colony of Virginia, Kendall was charged with spying for Spain  (Introduction to the Death Penalty). In the 17th century, the common law of England, which prevailed in the new colonies, stated that public hanging was the obligatory punishment for crimes committed against the state, the person and property. Thirteen crimes were punished by death in the US: idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape, man stealing, perjury in a capital trial and rebellion. Following the American Revolution, the death penalty retained the obligatory nature that it had under the British colony (Walsh).

Over the years, and perhaps ironically, the mandatory nature of the death penalty proved to be one of the ways by which criminals could escape punishment. In the absence of jury discrimination, juries preferred to acquit a person whom they believed to be guilty yet not deserving of death. This problem found its solution in statutes that allowed a discriminatory death penalty. The first state to enact such a statute was Tennessee in 1838 (Walsh). In addition to reforms introduced by enacting new statutes that allowed for a discretionary death penalty, the 19th and 20th centuries carried also the hope of abolishing it. There were two attempts made to abolish the death penalty in the US. The first abolitionist round took place between the years 1897 and 1917. During that time, ten states abolished the death penalty, and the main factor that enhanced this abolitionist trend was the improvement in socio-economic conditions across the country. The same factor that led to the abolition of the death penalty in these ten states, however, also led to its reinstatement in eighth of them when socio-economic conditions once again deteriorated  (When Life Generates Death (Legally)-History)

The beginning of the 1970s introduced a second abolitionist round. Contrary to the first round, this abolitionist course was enhanced by factors of a legal nature. In 1972 the US Supreme Court ruled in Furman v. Georgia,[1] in a five-to-four decision, that the death penalty as administered under existing statutes was unconstitutional. In that case, the judges ruled that in the absence of any guidance to juries in the statutes of Georgia, there was a substantial risk that the death penalty would be imposed in an arbitrary and discriminatory manner. To declare the death penalty practice unconstitutional, the majority in Furman relied on the Eighth Amendment prohibition of cruel and the Fourteenth Amendment requirement of equal protection under the law  (Cole). The justices who based their argument on the prohibition of cruel and unusual punishment were Brennan and Marshal JJ. Brennan J. argued that the death penalty violated the concept of human dignity, and Marshall J. stated that the death penalty served no legitimate penal purpose. Douglas, Marshal, and Stewart JJ. Based their argument on both the Eighth and Fourteenth Amendments (Cole).  These three judges wrote that the unlimited discretion of juries led to discrimination against the poor, powerless and black.

As a result of Furman, death penalty statutes in thirty-nine states were invalidated. The next step was thought to be the abolition of the death penalty. However, Furman instead led to the adoption of new death penalty statutes that limited the discretion of juries by presenting mitigating and aggravating circumstances. Most of the thirty-nine states responded to Furman by enacting new death penalty statutes. One year later, twenty states had enacted new death penalty statutes.

In 1976, the Supreme Court ruled on the constitutionality of the new death penalty statutes in Gregg. V. Georgia.[2] The “guided-discretion” statutes provide that all capital trials must proceed in two stages. In the first stage, the jury decides the guilt or innocence of the defendant. In the case of guilt, the trial will proceed to the second step, the penalty stage. During the second step and before reaching its decision, the jury considers the aggravating and mitigating circumstances. A decision to sentence the defendant to death can be reached if at least one aggravating circumstance is present. If a defendant is sentenced to death, the decision will be automatically appealed to the State Supreme Court, which must: (a) see if the punishment is proportional to the crime committed by the defendant; (b) make sure that the jury’s finding of an aggravating circumstance is supported by reliable evidence; and (c) determine if the sentence reached was influenced by any arbitrary factors.

The majority of the Court in Gregg found that the “guided-decision” statutes removed the possibility of rendering arbitrary and discriminatory death sentences. It stated: “No longer can a jury wantonly and freakishly impose the death sentence, it is always circumscribed by the legislative guidelines.  Two judges in Gregg dissented. Brennan J. stated in his dissent that “evolving standards of decency” should make the Court get rid of the death penalty because it is no longer accepted in our times. Brennan added that the death penalty violates the Eighth and Fourteenth Amendments. The second dissent[3]  was pronounced by Marshall J., who refused the death penalty by stating that it is not necessary to promote any legitimate notion of retribution and such a penalty has no deterrent effect. Similar to Brennan J., Marshall J. affirmed that the death penalty violates the Eighth and Fourteenth Amendments.

Following the reinstatement of executions as a result of the decision in Gregg, the number of execution has continuously increased. From twenty-one executions in 1984, the number rose to thirty-eight in 1993 and eight-five in 2000  (Current Information on the Death Penalty-Death Sentences and Executions in 2000). The following timeline of death penalty cases throws light on the significant cases which have been under discussions in the court of law at various time.

Death Penalty Timeline

1972  Furman v. Georgia: The U.S. Supreme Court effectively voids 40 state death penalty statutes and suspends capital punishment, ruling that death sentences are handed down arbitrarily, violating the Eighth Amendment prohibition against “cruel and unusual punishment.”
1976  Gregg v. Georgia: The U.S. Supreme Court upholds Georgia’s new death penalty statute, effectively opening the door for states to reinstate capital punishment.
1977  Gary Gilmore is executed by firing squad in Utah on Jan.17. He becomes the first person executed since the death penalty is reinstated. Oklahoma becomes the first state to adopt lethal injection as a means of execution after its state medical examiner, Jay Chapman, proposes the method. Coker v. Georgia: The U.S. Supreme Court prohibits executions for rape when the victim is not killed.
1982  Texas becomes the first state to use the lethal-injection method when it executes Charles Brooks Jr. on Dec. 7.
1984  North Carolina killer Velma Barfield on Nov. 2 becomes the first woman to be executed since the death penalty was reinstated.
1986Ford v. Wainwright: The U.S. Supreme Court rules that executing the mentally insane is unconstitutional.
1988Thompson v. Oklahoma: The U.S. Supreme Court rules that executing prisoners who were 15 or younger at the time of their crimes is unconstitutional.
1989  Stanford v. Kentucky and Wilkins v. Missouri: The U.S. Supreme Court rules that the death penalty is not prohibited under the Eighth Amendment for those who committed their crimes at ages 16 or 17. Penry v. Lynaugh: The U.S. Supreme Court rules that executing the mentally retarded does not violate the Eighth Amendment.
1993  Maryland prisoner Kirk Bloodsworth becomes the first death-row inmate to be freed because of DNA evidence.
1994President Clinton signs the Violent Crime Control and Law Enforcement Act, expanding the federal death penalty to 60 crimes.
1996After the deadly bombing of a federal building in Oklahoma City, Okla., President Clinton signs the Anti-Terrorism and Effective Death Penalty Act, which restricts review of death-penalty cases in federal courts.
 1999  Pope John Paul II in January visits St. Louis, Mo., and calls for an end to capital punishment in the United States. He privately urges then-Missouri Gov. Carnahan (D) to commute the death sentence of convicted killer Darrell Mease, scheduled to be executed during the Pope’s visit. Carnahan commutes Mease’s sentence to life without parole.
2000Illinois Gov. George Ryan (R) orders a moratorium on executions and appoints a commission to study flaws in the state’s death penalty system.
2001Oklahoma City bomber Timothy McVeigh on June 11 becomes the first federal prisoner to be executed in 38 years.
2002Ring v. Arizona: The U.S. Supreme Court rules that juries, not judges, should decide sentences of death. Atkins v. Virginia: The U.S. Supreme Court reverses its 1989 decision in Penry v. Lynaugh and prohibits executing the severely retarded based on the Eighth Amendment.
2003Illinois Gov. Ryan commutes the death sentences of all 167 inmates on the state’s death row before leaving office in January.
2004New York’s death penalty statute is declared unconstitutional by the state’s highest court in June. The Kansas Supreme Court voids its death penalty law in December.
2005Roper v. Simmons: The U.S. Supreme Court reverses its 1989 decision in Stanford v. Kentucky and Wilkins v. Missouri and rules that executing juvenile offenders who were under 18 at the time of their crimes is unconstitutional.
2006Kansas v. Marsh: The U.S. Supreme Court reinstates Kansas’ 1994 death penalty law, upholding the state’s practice during the sentencing phase of imposing the death penalty in cases where the jury is tied between life imprisonment and death. Hill v. McDonough: The U.S. Supreme Court rules that a death-row inmate in Florida may file a last-minute challenge to the state’s lethal-injection procedures even though he exhausted his regular appeals. Challenges to lethal injection put executions on hold in nine states: Arkansas, California, Delaware, Florida, Kentucky, Louisiana, Maryland, Missouri and South Dakota. In Florida, Gov. Jeb Bush (R) suspends all executions after the lethal injection of convicted murderer Angel Diaz takes 34 minutes, twice the normal time.
2007Sept. 25, 2007: The U.S. Supreme Court agrees to hear Baze v. Rees, an appeal by two Kentucky death-row inmates who argue that the chemical cocktail used to execute prisoners in 36 states is cruel and unusual. Hours later, Texas inmate Michael Richard is put to death using the same lethal-injection method challenged in the Kentucky case. Sept. 27, 2007: The U.S. Supreme Court stops the lethal injection of another Texas inmate, Carlton Turner, the first of several delays granted to death-row inmates and the beginning of a de facto nationwide moratorium on executions until Baze v. Rees is decided. December 2007: With a moratorium on lethal injections effectively in place, 2007 is on track to have fewer executions, 42, than any year since 1994.
2008Baze v. Rees: The U.S. Supreme Court upholds the constitutionality of Kentucky’s lethal injection procedure, holding that the administration of a three-drug cocktail does not violate the Constitution’s prohibition of “cruel and unusual punishment.” After a seven-month, nationwide moratorium, several states resume executions by lethal injection. Hearing arguments in Kennedy v. Louisiana, the U.S. Supreme Court considers whether the death penalty may be imposed on those convicted of raping a child.

(Source: reporting)

The continuous increase in the number of executions can be understood as an assertion of its constitutionality. In other words, an observer may be convinced that due to the impossibility of a constitutional challenge, courts apply the death penalty whenever they feel the gravity of the crime deserve such a punishment. A closer look at the number of people executed and their cases shows that the death penalty practice can still be challenged under the Sixth and Fourteenth Amendment.

The main debate surrounding the issue of capital punishment is its constitutionality. Death penalty proponents believe that the death penalty is an integral part of our criminal justice system and reserved for offenders who commit the most heinous of crimes, while death opponents believe in the sanctity of life for any reason. Capital punishment has been applied to both genders at all levels of competency. It has affected the lives of adults, juveniles and nearly all races of mankind.

The continuation of the death penalty raises several arguments. Capital punishment was a volatile issue in 20th century and continues to be a morally divisive topic in the 21st century. The underlying ideology of those who support capital punishment appears to be the notion of retribution and the concept of a safer society based on the theory of general deterrence. The following questions need to be examined when determining the validity of that premise: (a) is the death penalty a general deterrence to future criminal activity?, (b) is it morally acceptable to take a life in the name of justice?, (c) is the death penalty a form of cruel and unusual punishment? And (d) should an offender with a mental deficiency be a candidate for execution?

The questions are at the core of the issue and make capital punishment one of the most controversial topics facing society today. Thus, it is an intensely debated moral dilemma that affects the consciousness of Americans from every walk of life.

Both legal and moral issues need to be examined when addressing capital punishment. The moral issues are seeded within ethics, values, religious beliefs, and emotions. Thus, they play a pivotal role in representing some of the contrasting differences between death penalty proponents and death penalty opponents. The law has historically evolved from the moral majority. Many, if not all of our laws, represent society’s morals and value system. As with any society, laws are continually changing to reflect people’s ideological shifts and technological advances. Thus, the paradigm regarding the legality and morality of capital punishment transform accordingly. It is of significance to note that statistical variances can be noticed as paradigm change.

Since its inception, the death penalty has been carried out in a number of ways. Some appear to be inhumane and bring about vociferous protest by opponents of the death penalty. Others seem to be more practical in terms of the euthanasia for lack of a better term of a criminal adjudicated guilty of a capital crime. For example, lethal injection appears to be a peaceful way to die. It seems remarkably subtle how one lies on a gurney and slowly slips from life to death. Those who oppose capital punishment might contend that this method is the lesser of two evils; however, proponents of the death penalty might suggest that the victim experienced immense pain and suffering before dying an untimely death.        

Capital punishment by lethal injection may be too easy of a sentence for a premeditated killer. Those who pursue strict retribution through capital punishment might sanction a more harsh application of death. More severe types of execution have included the gas chamber, electric chair, firing squad and hanging. In contemporary America, the gas chamber is permissible in 5 states, electricity in 10, hanging and firing squad in 3 respectively. It should be noted that all of the states that have capital punishment legislation now allow for lethal injection as an alternative. Death by lethal injection is also the method of choice by the Federal government  (Death Penalty Information Center)

There were several national trends during the 19th century that affected the number of people executed in the United States. These trends include the following: (1) the invention of the first and second degree murder statutes, (2) the authorization of sentencing duties by a trial jury, (3) a reduction in the number of capital crimes that permitted the death penalty as a sentencing option, (4) the elimination of public executions, and (5) the introduction of more efficient methods of carrying-out executions. As the debate over the appropriateness of the penalty transcended generations, so to did the trends.

Political Aspects of Death Penalty

While a great deal of research has been done about many aspects of the death penalty, very little attention has been paid to the movement organized against it. As this study aims to look at the death penalty from different aspects, it would also analyse the death penalty issue from political perspective in order to investigate the external and internal factors that shape the anti-death penalty movement.

When we look at the successes and failures of the anti-death penalty movement, the role of political opportunities and constraints is apparent. The death penalty was successfully abolished from 1972-1976, largely due to the legal and institutional openings created by the Civil Rights Movement  (Haines). The Civil Rights Movement dramatically transformed American politics, redefining traditional politics as necessarily racial politics  (Winant). Indeed, the anti-death penalty movement and other racially-based movements were impacted by the political opportunity structure created by the Civil Rights Movement such that they collectively “transformed the meaning and contours of American culture” (Winant).. In 1963, civil rights attorney and the NAACP Legal Defense and Educational Fund joined forces to highlight the racial disparities in capital sentencing. The ACLU later joined in this effort as well, as this coalition of lawyers began to attack the constitutionality of the death penalty for  white and  black offenders alike (Haines p. 13-14).

The success of the anti-death penalty movement was short-lived, however, for the dominant legalistic strategy during the period prior to the Furman ruling came with a significant cost. The dominant role played by the lawyers during this stage of the anti-death penalty movement had “contributed to the withering away of whatever was left of citizen-based, political abolitionism” (Haines p. 45). The movement’s size was very small during this time and protest against the death penalty did not begin to grow again until after the 1976 Gregg decision, which ruled that appropriate legal safeguard, could ensure the constitutionality of the death penalty.

Resistance to the death penalty in the US is experiencing a renaissance unseen since its  1960s heyday when it influenced a  1972 United States Supreme  Court  decision  that  stated  capital  punishment  could  not  be imposed arbitrarily and unfairly. The self-imposed state moratorium on executions that followed this decision ended in Utah with the 1977 firing squad death of Gary Gilmore. Prior to Gilmore’s execution The Supreme Court had in 1976 approved a model it thought would avoid death penalty unfairness in future cases.

Unfairness Continues

Another aspect which has aroused controversy for the death penalty is the racial discrimination which has been widely discussed. Today there is little faith in the idea that the death penalty is imposed fairly. Racial discrimination continues at the jury level. All white juries are still convicting blacks  (Yardley). Not surprisingly current data indicate that since the death penalty was reinstated in 1976, 11 white defendants have been executed for killing black victims, while 161 black defendants have been executed for murdering white victims (Death Penalty Information Center 2001).

The scale on which death penalty defendants have had inept defense attorneys is well documented, and a key to the current resistance. Recently a federal judge stated that it was a legal fiction that death penalty defendants receive a full measure of effective assistance of counsel.

Closely related to the issues of disproportionality and inept representation is the question of executing offenders with an intelligence quotient (IQ) of 70 or below, that is, mentally retarded. In Kentucky this refers to defendants  with  significant  sub-average  intellectual  functioning  existing concurrently  with  substantial  deficits  in  adaptive  behaviour  manifested during the developmental period. Thirteen years ago in 1989 when The Supreme Court ruled that the Constitution permitted the execution of mentally retarded people only two of the 38 death penalty states prohibited execution of the retarded  (Rimer). The Court revisited the issue during its 2001/2002 session, first with McCarver v. North Carolina, a death case in which the defendant has an IQ of 67. This case became moot in late 2001 when North Carolina banned executions of the retarded.

Later in mid-summer 2002, the court declared in the first of two rulings, Atkins v. Virginia, that it was excessive and inappropriate to execute mentally retarded offenders  (Greenhouse L.). In its 6-3 landmark vote the court accepted the argument that the national mood had indeed changed since its 1989 ruling. Now the number of states barring execution of the retarded is 18 (Greenhouse L). The impact of Atkins v. Virginia is highly debatable. The court did not offer guidelines on how to apply the new prohibition – that is now up to the individual states. The strength of the national consensus is also questionable. Less than half , 47%, of the 38 states with capital  punishment  have  banned  it  for  mentally  retarded  offenders. Coupled with the fact that state-level political opposition to court’s decision is strong in some states where capital punishment is popular, this leaves open the issue of the number of people who will be removed from death row, or prevented in the future being sentenced to death. When in 2000, Governor  ‘W’  Bush  was  campaigning  for  the  presidency  he  opposed banning the execution of retarded people. His successor in Texas vetoed a bill prohibiting such executions based on the logic that Texas already had provisions to prohibit executing the retarded, despite the fact that in recent years Texas has executed six mentally retarded convicts, and now has seven more on death row.

The second decision, Ring v. Arizona, decided that juries rather than judges must make the crucial factual determination that subjected an offender to the death penalty. This decision ‘invalidated the death penalty laws in five states and cast doubt on the laws of four others’ (Greenhouse 2002c). Coming only four days after Atkins v. Virginia, this ruling at first gave the appearance of a new momentum within the Supreme Court against the death penalty. It was instead addressing an issue raised previously when a New Jersey hate-crime law permitted the imposition of a higher sentence than the statutory maximum if a judge found that a crime was committed with a biased motive.  Together Atkins and Ring are expected to save hundreds of lives of those now on death row.

Another problem involves what has become known as geographical unfairness. In August 2001, a new study confirmed that in Nebraska, capital punishment was applied unequally in rural and urban areas, a discrepancy with subtle racial implications (because more blacks live in urban areas). The same study reported that in Nebraska the death penalty flowed down-ward – defendants whose victims were affluent were more likely to get the death penalty  (Belluck). In late December 2001, the Kansas Supreme Court ruled that its death penalty was unfair and had to be changed. At issue was ‘the requirement that defendants be sentenced to death even if the aggravating factors . . . [did] . . . not outweigh the mitigating circumstances …’ (New York Times).

The specter of executing those wrongfully convicted is probably the major reason that opposition to capital punishment is growing in the US. Since the death penalty was reinstated in 1973, 98 innocent death row inmates have been freed, 16 between April 2000 and July 2001  (More death-penalty doubts). According to a Columbia University report, June 2000, for 28 states between 1973 and 1995 that had death penalty appeals, 68% of the death sentences were found to be so legally flawed as to be reversed (Barton 2000). A follow-up study reported that states and counties that used the death penalty the most were the ones most likely to make flawed verdicts  (Court finds death penalty used unfairly in Kansas).

Combined with surveys reporting that as many as 67% of North Carolina’s population think innocent people have been executed within the last 25 years, it is unsurprising that support for capital punishment is waning  (Taylor D). Indeed, public support for capital punishment while still high has declined to a 19-year low. It is within this context that resistance to the death penalty is flourishing.

Death Penalty Abolition

Abolition is an oft-cited alternative to the death penalty; however, few organised voices of resistance put this on their ‘meet the public’ presentations because of the relative strength of the population that still supports capital punishment. Abolitionists’ arguments based on the immorality of state-sponsored executions have little plausibility with the public. More purchase for the resistance movement has been found on ‘practical’ grounds, which has helped to strengthen arguments for death penalty alternatives.

Life without parole

Life without parole (LWOP) is an option that is already available in 46 states and the federal courts (USA Today 2001b). Its appeal is based on the idea that life without parole provides certitude of punishment, discourages grandstanding by prosecutors who use death penalty cases for career enhancement, avoids allowing painful real and symbolic confrontations between unrepentant criminals and victims’ families and their supporters, and it eliminates the risk of deadly errors (USA Today 2001b). Recently a national poll found that support for capital punishment dropped to 55% when LWOP was offered as an alternative. LWOP does not appear to have much attraction to prosecutors  and  judges,  who  according  to  some  observers  seek  death  penalty sentences because they see them as saleable fodder for election and re-election campaigns. In one well-documented instance a judge repeatedly denied telling a jury it could use LWOP, when in fact it could use it.

Public opinion: Growing bipartisan support for moratoriums has occurred in recent years at city, state and federal levels more so than for calls for abolition. A Kentucky Catholic priest opposed to capital punishment stated: ‘I’ll support a moratorium as a strategy in order to get the issues of capital punishment before the public; we’ll use it to educate the public’ (Dalehanty).  Just what moratorium supporters hope to accomplish varies greatly. Some states favour them so that a commission can study death penalty flaws so as to fix them. Groups in other states, including Texas, favour provisions to ensure DNA testing for capital defendants and death-row inmates. There is fairly wide agreement that indigent capital defendants should have improved legal representation, especially those whose crimes are most likely to get death sentences. The most talked about ‘fix it’ measure has concerned executing the mentally retarded.

In a surprising show of bi-partisan cohesion in early 2000 (before the November presidential election) the US Senate saw the introduction of the Innocence Protection Act (IPA). It was designed to create legislation that would require those facing the death penalty to be represented by a qualified attorney, and give defendants access to DNA testing that may not have been available at the time of their trial. Later the same year and still before the national elections and the Florida recount debacle, another bi-partisan group of Senators and Representatives released a poll that they claimed demonstrated overwhelming public support for significantly reforming the nation’s death penalty system. According to the poll, 80% of Americans supported reforming or abolishing the death penalty. The report also found that 64% of the nation favoured suspending executions entirely until issues of fairness in capital punishments could be solved. Clearly, according to a Senator Patrick Leahy (D-Vt): ‘The people are ahead of the politicians -they know the death penalty machinery is broken’  (Stout).

One nationally respected editor argued in mid-May 2002, that it might be politically advantageous for the Democrat party to call for a national moratorium before the next presidential election. Such a move, he argued, might not only attract conservative Republicans disturbed by their party’s continued pro-death and anti-abortion agenda, it might also attract stronger voter turnout from African-Americans because they have been the disproportion-ate victims of capital punishment. A Democratic call for a national moratorium would also likely appeal to former party members who switched to the Republican party because, in part or whole, presidential candidate Bill Clinton flew home from campaigning to execute a mentally retarded murderer in Arkansas  (Beinart)

City council

In addition to national bi-partisan support for IPA several organisations are calling for moratoriums. Of particular note because it comes out of the south and because it was supported by clergy, civic leaders, lawyers and citizen’s groups, is Charlotte, NC’s city council. Urged by a Republican supporter of the death penalty in a state that sentences about 25 people a year to death – more per capita than other states including Texas -in Fall 2000 the council adopted a moratorium on executions. Charlotte became the seventh and largest municipality in NC to pass such a resolution since mid-1999. More than two dozen other municipalities had adopted moratorium resolutions by November 2000, including Philadelphia, Atlanta, Baltimore and San Francisco  (Rimer). It is doubtful that the city moratoria reflect a rural-urban split as much as it reflects civil rights activism that has a long history of being grounded in urban politics.


In January 2000, Illinois Governor George Ryan, a Republican who supports capital punishment cited the exoneration of 13 death row inmates since Illinois had re-adopted the death penalty in  1977, as the reason he would approve no more executions until the system had been studied. His reassessment coincided with the intense media coverage scrutiny given to Governor George W. Bush’s presidential campaign and his unflinching support for capital punishment in Texas, which leads the nation in executions. Nebraska’s Legislature approved of a moratorium in 1999, but its governor vetoed it. Later the legislature approved financing for a study of the death penalty system, as have Legislatures in Illinois, Maryland and Indiana. North Carolina’ Governor James B. Hunt, a Democrat, however thinks that his state’s death penalty system works fairly, and that a moratorium is unnecessary.

Church-based groups: Nationally both Catholics and Quakers have created specific organisations opposed to the death penalty, but spiritually based resistance is also found among personnel in secular organisations. In midsummer 2000, the Quixote Center, an interfaith organisation that tracks death-penalty issues, stated that at least 860 grass-roots organisations were lobbying for a moratorium on executions  (Barton)

Prison writers: Within the last 25 years a promising and abundant crop has emerged from the oppressive and barren confines of US prisons – prisoner writers. They have in no small measure brought a significant, authoritative and persuasive voice to abolition and moratorium camps. An exemplary example is Mumia Abu-Jamal, whom  (Davis) called ‘the country’s most well-known death row prisoner’. In 1995 he published Live From Death Row (Abu-Jamal 1995), which links capital punishment to racism and classism. He and other prisoner writers have placed their work in scholarly and popular journals, books and prison publications including the Angolite from Louisiana’s Angola Prison and Prison Legal News from Washington State Prison.


Pros and Cons of Death Penalty


Undoubtedly, taking a life is the supreme expression of a state’s power over its citizens. It should not be used without offering the accused every possible opportunity to present evidence that may keep the state out of the unimaginable position of executing the innocent.

Today, science provides the criminal justice system with a means of definitively answering many questions of guilt or innocence without eyewitness testimony or circumstantial evidence. There have been great, new, scientific and technological advances in DNA and forensic evidence testing that can explore evidence previously unusable.

However, we should not overemphasize technology. Minorities and the poor often cannot pay for adequate or competent representation. They cannot afford “dream teams” who negotiate with prosecutors to eliminate the possibility of a death sentence before a trial begins — as with O.J. Simpson. Innocent people are often unable to adequately address their legal problems with definitive evidence of their innocence.

In the past, many complained that death row inmates were given too many chances to appeal a conviction, dragging out the process for years and tying up the courts. So, Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA), limiting an inmate’s right to appeal a capital conviction. However, in doing so, Congress also limited the ability of Americans wrongfully convicted to prove their innocence.

The Death Penalty Information Center reported that the average time between a capital conviction and execution is eight years. The average time that innocent people have spent on death row before proving their innocence is seven years. The provisions in AEDPA effectively cut the time between sentencing and execution in half, thus, virtually guaranteeing that innocent people will be executed.



In this world of laws, our justice system will inevitably have some flaws. However, capital punishment is not one of them. If there is a defect, it is in the way we administer it.

From before the 1972 Supreme Court decision that outlawed it, to after the 1976 decision that reinstated it, the death penalty has been a topic of debate. It is described as racist, unreliable and ineffective. But no matter how detractors twist the issue, the vast majority of Americans continue to support this type of punishment.

It must be remembered that there is another party besides the murderer involved in every murder, and that is the victim. By the unjustified taking of another’s life, the murderer has forfeited his own.

We are not obligated to support murderers for the rest of their natural life. If one murderer is granted life in prison while another is executed, it is only because of the extraordinary degree of leniency that we have in our American system of jurisprudence, and not because of any intrinsic unfairness.

Critics of capital punishment have sought to hobble it in every way possible. And the statistics they use to try and justify its abolition are misleading. As Mark Twain once said, “First get your facts; then you can distort them at your leisure.” The fact is, however, the facts are just not there.

Some charge that capital punishment is racist. But the rates of execution reveal that white murderers are twice as likely to be executed as their black counterparts.

Others say that no deterrent effect is produced by capital punishment. The rub here is that it is impossible to prove the effect of something that didn’t happen. Common sense tells us that some people refrain from murder because they fear death themselves, many others refrain from it because they consider it socially reprehensible; one of the reasons they consider it reprehensible is because people are put to death for it.

We don’t need a moratorium on the death penalty. What we need is a death penalty applied in a more consistent and timely manner that will serve as a more effective deterrent to would-be murderers.

The skepticism and hesitancy currently found in the US regarding the death penalty is a hopeful sign that America is well on its way to joining most of the world’s countries on this ancient form of punishment. Clearly international pressure on this subject puts the US in an awkward and untenable position as a world leader  (Hood). At the moment, however, there are two reasons why it is not clear whether domestic doubt and international pressures are enough to abolish capital punishment. Firstly, death penalty resistance is not the beneficiary of a broader movement such as the civil rights movement of the 1960s to 1970s when voting rights, opposition to the Vietnam War and other issues helped fan the flames of moral indignation and demands for reforms. Today it seems that death penalty resistance is a one-off subject that struggles to get attention in the face of dropping crime rates and the economic attractiveness of prison growth (Kilborn). Secondly, capital punishment still has core appeal in a nation with more guns per capita than any nation in the world. If, however, LWOP can be shown to be good for local economies, safe for various forms of political careers, capital punishment just might disappear for lack of use (Kilborn).

An exception might be created for political criminals whose behaviour is as horrendous as that of Timothy McVeigh. Some observers have argued that McVeigh makes a strong case for capital punishment – a well represented guilty white killer who came from a caring family ostensibly free of any of the mitigating factors so often found in the background of those on death row  (Mcgrory). Such arguments fail to be persuasive because they ignore, or at the very least they minimise the fact that state-based executions are no different from the wrong-headed sense of ‘duty’ that drove McVeigh to kill 168 people. More directly, until there is a spiritual thirst in the US to abolish capital punishment, abolitionists will, rightly, continue to argue that in executing murderers the state and its citizens lower themselves to the same moral level as the murders

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[1] Furman v. Georgia, 408 U.S. 238 (1972).

[2] Gregg v. Georgia, 428 U.S. 153 (1976).

[3] Gregg v. Georgia, 428 U.S. 153 (1976). At 231-241