A. Historical analysis of the death penalty in the United States
Death penalty has been applied in almost every civilization throughout history. Geography, culture, politics and history have varied its forms and the offenses for which it could be imposed. More precisely, this evolution of capital punishment has varied from country to country, following changes in history, social and political principles, as well as judicial and political systems. Then in 1786, when the Duke of Tuscany passed the first law abolishing the death penalty, the whole world started to question the legitimacy of such a sentence. This was the starting point of the international abolitionist movement, which accelerated throughout the twentieth century, until by the early 1980s almost every democratic country had abolished death penalty. By 2006, 97 countries had abolished capital punishment de jure (including 86 for all crimes and 11 for crimes of common right), 34 had abolished it de facto (by having not used it for 10 years) and 65 countries still had it in their laws and applied it[1]. Among these countries, the
1) First death penalty cases in the United States
The apparition of the death penalty in
2) Evolution during the nineteenth century
From 1907 to 1917, six American states completely abolished death penalty and three limited it to very few, grave, and rare offenses. But the social unrest within the country and the context of World War I hardened the judicial system. Gradually, the six abolitionist states chose to reinstate death penalty, and there was a resurgence of executions between 1920 and 1940. As can be seen in the following graph[2], the 1930s marked the decade with the highest number of executions, averaging 167 per year (a figure which dropped to129 in the 1940s,
Fig. 1) ‘Executions by Year 1608-
3) Towards the national abolition?
Despite the continuing abolitionist movement, it was only in
4) Suspension by the Supreme Court
Therefore, it was on the 29th of June 1972 that the Supreme Court first suspended capital punishment in the
The President at the time, Richard Nixon, who was a fervent advocate of death penalty, created a federal capital punishment bill that would restore death penalty for certain federal crimes. This bill included murder, kidnapping, treason and hijacking of planes.
5) The restoration
Under the pressure of both the States and the government, the United States Supreme Court restored the death penalty and its new statutes in
6) Evolution of the application of death penalty since 1976
a) Number of executions
Since the reinstatement of death penalty in 1976, its evolution has varied considerably from decade to decade. From 1976 to the end of the 1980s, the number of executions slowly increased. Then, there was a resurgence in the 1990s, reaching a peak of 98 executions in 1999. Since then, the general trend is toward a reduction, as is evident in the following spreadsheet.
Fig. 2)
1976 - 00 | 1984 - 21 | 1992 - 31 | 2000 – 85 |
1977 - 01 | 1985 - 18 | 1993 - 38 | 2001 – 66 |
1978 - 00 | 1986 - 18 | 1994 - 31 | 2002 – 71 |
1979 - 02 | 1987 - 25 | 1995 - 56 | 2003 – 65 |
1980 - 00 | 1988 - 11 | 1996 - 45 | 2004 – 59 |
1981 - 01 | 1989 - 16 | 1997 - 74 | 2005 – 60 |
1982 - 02 | 1990 - 23 | 1998 - 68 | 2006 – 53 |
1983 - 05 | 1991 - 14 | 1999 - 98 | 2007* – 15 |
Total: 1071
*From January to the end of April 2007
b) Number of sentences
If the number of executions has been decreasing since the early 2000s, because of modifications in the appeal process, the number of prisoners on death rows has not. As can be seen in the following diagram, the number of prisoners on death row has consistently increased since 1953. It reached a peak in 2000 with 3601 inmates on death row in the
Fig. 3) Prisoners on Death Row, 1953-2005[6]
c) Evolution of the criminal process
There have been subsequent evolutions regarding the definition of capital offences, and the methods and the limits of their application. The two main debates concern the death penalty and its application in juvenile offenses, as well as those cases involving the mentally disabled. In June 2002, the Supreme Court case of Atkins vs. Virginia ruled that executing mentally handicapped persons was unconstitutional, citing the Eighth Amendment (that which prohibits "cruel and unusual punishments"). Since then, 16 states decided to forbid capital sentence in such cases. More recently, in Roper v. Simmons, in March 2005, the Supreme Court declared capital punishment unconstitutional for crimes committed before the age of 18. Before this, of the 38 retentionist states, nineteen of them along with the federal government had set a minimum age of 18, five of them a minimum age of 17, and the fourteen others a minimum age of 16. Since 1976, 22 inmates have been executed in seven different states (
Such advances suggest a trend towards national abolition. However, for the time being and due to history, there remains the federal judicial system of the
B. Criminal Law in the
In order to fully understand the limits of criminal law in the United States (also known as penal law), it is necessary to briefly outline the process. We will focus our study on general criminal law, which is applied at the Federal level and at the State level.
1) Who sentences to death?
Certain State courts, the Federal Government, and the U.S. Military all sanction death penalty. At the Federal level, the Supreme Court (composed of nine justices) presides over criminal cases. It is also responsible for judiciary, administrative and constitutional domains, and only concerns itself with only 2% of the criminal domain. In relation to the Federal Government, the death penalty is reserved as a solution for a large range of offenses related to homicide, but also for treason, espionage, and trafficking in large quantities of drugs. The
2) The United States judicial system
American law is determined by common law, which is based on jurisprudence, that is to say the decisions given by the different courts. During a trial, the court refers to previous cases in order to make their decisions. This contrasts with the codified system, characteristic of Roman Germanic law, which is organized by codes. A principal theoretical tenet of the American system is that the defendant is innocent until proven guilty. Also, juries are only supposed to convict if guilt is established “beyond a reasonable doubt”. There are a multitude of cases, however, where that standard does not seem to apply. Nevertheless, the
3) The criminal law
In the
The
a) At the state level
In the American criminal law system, at the state level, there are four different courts of Law. The lowest one is the Magistrate’s Court. They are numerous, are each run by one magistrate, and are competent to give a verdict on petty offenses (for which one risks a 6 month stint in prison or a fine of $500 maximum) and misdemeanors (offenses incurring up to one year of prison or less than $1000). Above the Magistrate’s Court, the Trial Court is responsible for felonies (the lowest class of crimes) and any appeals coming from the Magistrate’s Court (where the facts and the law are re-examined). After, the Intermediate Appeals Court is responsible for any appeals from the Trial Courts (where the law only is examined). Finally, the highest authorities are the Supreme Courts, which are the final courts of appeal. It is substituted by the Intermediate Appeal Courts if a state does not have a Supreme Court.
Every State maintains its own court structure and in this way determines different offenses and punishments. In the following diagram, composed by the Criminal Law, Lawyer Source, a general outline of the criminal court system on the State level is presented. (Sometimes, a criminal case can also go directly to the Federal Supreme Court.)
Fig. 4) State Criminal Court System[7]
COURTS OF LIMITED JURISDICTION |
COURTS OF ORIGINAL JURISDICTION |
CIVIL AND CRIMINAL COURTS OF APPEALS |
STATE SUPREME COURT |
The United States Federal Supreme Court decides only a fraction of the cases presented, which usually involve important questions about the Constitution or Federal law.
b) The jury
Concerning juries, it is necessary to dissociate the Grand Jury from the Little Jury. The Grand Jury is dedicated to judiciary accusation and investigation. In the Federal Grand Jury and in the State one, members are selected in the same way. First they are chosen by drawing lots, and then are elected accordingly. Some are excluded or exempted for reasons of social or physical handicap, or in case of particular professions on the basis of a precise, exacting questionnaire to fill out. Before the trial, both parties can decline an unlimited number of members, by providing good reasons, but also a limited number without specifying why. This process of selection will be addressed later.
The selection method of the Little Jury is the same but it does not have the same role or action. At the State level, the case includes either a Little Jury if the penalty is more than six months imprisonment or a $500 fine. A ¾ majority is required for the sentence, except in cases of capital punishment, where the decision must be unanimous. At the Federal level, the right to ask for both the Grand and the Little Jury is cited in the Fifth Amendment.
4) How is death penalty sentenced?
The paper will now focus on the process of the death sentence itself (in chronological order), beginning after the prosecution. The administration of the death penalty is divided into four steps: Sentencing, Direct Review, State Collateral Review and Federal Habeas Corpus. A fifth stage in the process has recently grown in importance: the Section 1983 Challenge. During the sentencing phase, if the defendant is convicted for a capital crime (which varies according to the jurisdiction), he must be found eligible for the death penalty according to any aggravating or mitigating factors. The sentencing authority then chooses between death penalty and life imprisonment. The second step, the direct review, is a legal appeal during which the appeals court decides whether the decision was legally taken. The decision can be affirmed (as happens in 60% of the cases), reversed, or the defendant can be acquitted. In the event of an affirmation on direct view, the decision is final, but if a prisoner receives their death sentence in a State-level trial a possible third stage remains: they can request implementation of a State Collateral Review. Most of the time, at this point, the defendant claims ineffective assistance of counsel, after which the court must reconsider any evidence. However, only a mere 6% of death sentences are ever overturned after State Collateral Review. Following this review, or for a federal death penalty, cases go directly to stage four: Federal Habeas Corpus. This step guarantees that State courts, through the previous two stages, have done their best to protect the prisoner's Federal Constitutional Rights. This is an important step as about 21% of cases are reversed through Federal Habeas Corpus. A recent important evolution has added a fifth and final round of appeal. Under the Civil Rights Act of 1871 — codified in 42 U.S.C. § 1983 — anyone is allowed to establish a lawsuit for the purpose of protecting his civil rights. Thus, a State prisoner can refer to the Section 1983 Challenge to question and dispute their judgment of death. Recently, in the Hill v. McDonough case, the United States Supreme Court approved the use of Section 1983 defense, deeming
After a sentence has been finally proclaimed, the last chance is a pardon and clemency. For federal crimes pardons can only be granted by the President, as written in the Constitution. However, the governors of most states have the power to grant pardons or reprieves for offenses under state criminal law.
Finally, concerning death penalty itself, the American criminal system is based on the justice model, which means the court punishes the convict, ‘hurting him in his body and in his soul’[8]. This study will limit itself to homicide-related offenses that are linked directly to the subject. In the nineteenth century, states could impose death penalty for a multitude of crimes. They gradually reduced the offenses, so that since 1977 the only crime for which prisoners could be executed has been criminal homicide, although most jurisdictions do require additional aggravating circumstances. The differences existing between the jurisdictions will be discussed in part II) of the essay.
Most of the jurisdictions provide “life without parole” as an alternative sentence to death penalty; that is to say a life long sentence without possibility of release. On the contrary to the French equivalent—in which a prisoner may be released on the grounds of good behavior—in the United States, a prisoner sentenced to life imprisonment actually spends the rest of his life in jail, unless otherwise pardoned, or if a successful escape is carried out.
5) Time spent on death row and living conditions in prison
Fig. 5) Average time from sentence to execution (in years)[9]
There are at the moment more than two million people in
With the general improvements of living conditions in prison, the international progressive movements for the defense of Human Rights and new abolitionist countries around the world have introduced new topics of debate about the conditions of imprisonment. One of these new topics is found in the
This solitary confinement is effectively a second punishment, especially since they never know precisely when they will be executed. For some of them, this isolation and uncertainty result in a deterioration of their mental state. Psychologists and lawyers talk about the “death row phenomenon” to describe the living conditions in death row (isolation, uncertainty and duration) and the “death row syndrome” to talk about the psychological effects that result from it. The waiting, loneliness and uncertainty are a form of torture that often makes inmates suicidal, delusional and insane. In addition, since 2002 it is unconstitutional to execute a mentally handicapped person. If a death row inmate is considered as one, the Court has to reexamine his case.
C. Geographic analysis of abolitionist and retentionist States today
1) Retentionist jurisdictions
Federally, thirty-eight States still have death penalty. Geographically, this number includes the southern states[15] of: Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, Tennessee, Kentucky, Virginia, Maryland, Delaware, plus California, Nevada, Arizona, New Mexico, Washington, Oregon, Idaho, Utah, Colorado, Montana, Wyoming, (for the western region), South Dakota, Nebraska, Kansas, Missouri, Illinois, Indiana, Ohio, (for the Midwest) and Pennsylvania, Connecticut, New York, New Hampshire, and New Jersey for the Northeast. The states of
By using the division made by the US Census Bureau, we can notice that the four different regions (West,
a) Geographic analysis of the retentionist states
Fig. 6) Map of the Abolitionist and
On this map, showing the abolitionist and retentionist states, we can see that most of the states without the death penalty are situated in the
On the following map, we can notice that the most progressive states on this issue and the recent evolutions on death penalty sentencing have been concentrated in the North. Such advances taken into account include the death penalty statutes being declared unconstitutional in
Fig. 7) Death Penalty Statutes in the
* Excluding Federal Government
The U.S. Government and U.S. Military also have death penalty written into their laws, but the number of prisoners sentenced to death or executed is not very significant. The U.S. Military has not had any executions since 1961; however 9 inmates remain waiting on military death row. The U.S. Government has authorized 48 prosecutions since 1990 and only 3 people have been executed under this jurisdiction. All three were executed under the administration of President George W. Bush (1994-2000), whose term in office has also seen federal death row more than double in size. Given that in total the Federal Criminal Court has prosecuted only 48 people in 15 years (in comparison with 884 at the States level), then the frequency has increased recently, as is evident on the table below. There are currently 44 prisoners on federal death row.
Fig. 8) Number of Federal Death Sentences 1990-2005[18]
Year | 2005 | 04 | 03 | 02 | 01 | 00 | 99 | 98 | 97 | 96 | 95 | 90 | |
Federal Death Sentences | 6 | 10 | 2 | 5 | 2 | 2 | 1 | 5 | 3 | 4 | 2 | 0 | |
b) Evolution since 1976
Between the reinstatement of death penalty in 1976 and April 1st, 2007, up to 1072 inmates have been executed—a figure that has grown within the first four months of 2007, when 15 inmates were executed. Even though 38 States have the capital sentence in their laws, 80% of the executions that have happened since 1976 have taken place in the southern states.
Within the first four months of this year (2007), there were 15 executions in the country and 13 were carried out in
Nevertheless, few states seem to change their attachment to death penalty. The state of
The hypothesis of the South being more retentionist is and will be confirm further, taking into account the number of executions, the number of death row inmates, and further in the essay, with the example of the state of
c) A stricter application in the South?
Fig. 9) Executions By State [20] | |||
State | Total executions | Executions in 2006 | Executions in the First Four Months of 2007 |
| 392 | 24 | 13 |
| 98 | 4 | |
| 84 | 4 | 1 |
| 66 | | |
| 64 | 4 | |
| 43 | 4 | |
| 39 | | |
| 36 | 1 | |
| 35 | 1 | |
| 27 | | |
| 27 | | |
| 22 | | |
| 24 | 5 | 1 |
| 17 | 1 | |
| 14 | | |
| 13 | 1 | |
| 12 | | |
| 12 | 1 | |
| 8 | 1 | |
| 6 | | |
| 5 | | |
| 4 | | |
| 3 | | |
| 3 | 1 | |
| 3 | | |
| 3 | | |
| 2 | | |
| 2 | 1 | |
| 2 | | |
| 1 | | |
| 1 | | |
| 1 | | |
| 1 | | |
| 1 | | |
TOTAL | 1072 | 53 | 15 |
As we can see in this spreadsheet, established by the Death Penalty Information Center[21], in 2006, 53 people were executed in 14 different States: 24 inmates were executed in Texas,
Fig. 10) Executions By Region*[22]
This spreadsheet shows the number of executions (at the federal and State level) by state since 1976. *including federal executions which are listed in the region in which the crime was committed |
It is obvious, according to the diagram Fig. 10, that there are many more executions in the southern states. Indeed, 82% of the executions between 1976 and today took place in the South.
Not only are executions in the South more frequent, but the number of prosecutions there is much higher as well.
We will also try to explain that there exist historical, as well as economical reasons for such a strict application, and will analyze the example of the state of
2) States with moratoria
Among the states with death penalty statutes, several have recently imposed a moratorium on executions. A moratorium is a temporary suspension of executions while a legislative study commission examines the death penalty judicial system. Death penalty trials and appeals are not suspended during the study, only executions. Recent events, such as the controversy relating to the humaneness (or lack thereof) of the lethal injection practice, have resulted in moratoria in various states. In most states, a governor can impose a moratorium unilaterally. Most of the time, a governor or a senator requests a moratorium on the grounds of the application of the death penalty, rather than for ethical reasons. The state legislatures, made up of a state house of representatives and state senate, can also pass moratorium laws. Both bodies must pass the same law for it to take effect, and the governor has the power to veto any law if he wants to. Courts cannot impose a moratorium but can declare specific laws unconstitutional or suspend executions pending resolution of problems that violate their respective state or federal constitutions. If that happens, the states can appeal to a higher court or change the laws to comply with the court’s concerns.
Usually, during the moratorium, a commission is created to study precise aspects of the death penalty in order to determine the fairness or the constitutionality of it. Several states have currently placed moratoria on the executions so that the procedures of execution by injection can be reviewed. But as the debate nowadays is very sensitive, and incites more and more states to impose a moratorium, and as the average duration of a moratorium is three months, it is difficult to give a clear and faithful picture of the states currently holding a moratorium. We will focus on the important moratoria that were imposed recently and their explanations.
a) States where death penalty statutes were declared unconstitutional
In
In the state of
Thus, the states of
b) Moratoria for general death penalty concerns
Since death penalty was reinstated in
We have now freed more people than we have put to death under our system - 13 people have been exonerated and 12 have been put to death. There is a flaw in the system, without question, and it needs to be studied... I will not approve any more executions in this state until I have the opportunity to review the recommendations of the commission that I will establish.
Just before leaving the office in January of 2003, he commuted 167 inmates’ capital sentences to life imprisonment and pardoned 4 inmates. When Democrat Rod Blagojevich was elected governor in 2002, one of his first acts was an attempt to revoke some of Ryan's commutations but the moratorium remained.
In
In the State of
c) Moratoria because of lethal injection issue
In
Two years after Governor Ehrlich reenacted death penalty in
The case of Angel Nieves Diaz, executed on 13th December
In January
Given that DNA testing and other new evidence has proven that more than 121 people who sat on death rows around the country were actually innocent of the crimes for which they were convicted, we agree that a temporary suspension of executions in California is necessary while we ensure, as much as possible, that the administration of criminal justice in this state is just, fair, and accurate.
U.S. District Judge Jeremy Fogel imposed a moratorium on the death penalty in the state of
In
In
Very recently, on the 2nd of February 2007, Phil Bredesen, governor of
As can be seen, a moratorium is often imposed in the face of doubts concerning the methods of execution, or the fairness of a death sentence. During this suspension, an impartial commission is often asked to study the controversial aspect. However, some abolitionists contend that a moratorium is not enough. The states of
Despite the questions raised in progressive evolutions, the
3) Abolitionist states
In total, thirteen jurisdictions have completely abolished death penalty from their law[25]:
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