Cruel and Unusual Punishment Capital Punishment

Fyodor Dostroyevsky wrote, “A society should be judged not by how it treats its outstanding citizens but by how it treats its worst criminals.”

Executions in the United States  The number of death sentences and executions has always been small when compared with the number of murders. The national average is that in about 2.5% of homicides the death sentence is used and only about.2% are executed.  Since the restart of executions in 1977 there have a little over a 1000 people have been executed in the U.S.  Of the 6,912 people under sentence of death between 1977 and 2002, 12% were executed

Reduction in the number and types of crimes punishable by death.  Murder committed in the commission of a felony.  Multiple murders.  Murder of a police or correctional officer acting in the line of duty.  Especially cruel or heinous murder.  Murder for financial gain.  Violent Crime prior offenses.  Causing or directing another to commit murder.

A second trend involves the attempt to lessen the cruelty of executions.  In the 1800s in the U.S. hanging was the most common means.  Next electrocution.  Lethal Gas  Lethal Injection  Today in the U.S., 27 states used lethal injection, 11 use electrocution, 4 use lethal gas, 2 hanging, and 1 uses firing squad.  Since 1977, 654 of the 820 executions (80%) were by lethal injection.

A third trend has been the attempt by policy- makers in the U.:S. to ensure that death sentences are imposed fairly and rationally.  Guided Discretion: –Only certain types of murder –Defendants accused of capital murder would be tried by jury in two-phase proceedings. –Death verdicts would be automatically reviewed by state supreme courts.

Fourth trend is in sanitizing executions.  Today’s executions are conducted late at night.  Using well-defined and specialized procedures.  Witnessed by only a handful of observers  Occur on the average 8 years and five months after conviction.

How the System Works Today  Jury selection with “death qualification” and problem of the bias of the jury.  The Capital Murder Trial –First phase is the determination of guilt. –Second phase is the penalty phase. –It is estimated that for every 100 cases in which capital crimes are alleged, only about 20 progress to the penalty phase. – Death Sentences are automatically appealed to State Appeals Courts.

The Politics of the Death Penalty  Death Penalty support as litmus test to determine whether candidates are tough on crime.  Judges and prosecuting attorneys are elected on their toughness on crime.  Governors who are elected determine commutation of sentence.  In states that elect their supreme courts, death sentences are affirmed at a much higher rate than states that don’t.

Is the Death Penalty Cruel?  In the United States lethal injection is fast becoming the only means of execution used.  When injecting the lethal drugs even a small error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a witness to his or her own slow, lingering asphyxiation.

Life on Death Row  Among prisoners executed from 1977 to 2002, the average time spent between the imposition of the most recent sentence received and execution was more than 10 years.  Confined in 6 by 9 foot cell.  Three times a day, the occupants of death row receive a meal through a slot in their cell door.  Two or three hours a day they are permitted to go alone outdoors to a fenced-in concrete area, observed by surveillance cameras.  No contact visits.

Population on Death Row – Gender and Age.  Men were 99% (3,506) of all prisoners under sentence of death.  During 2002 the number of women sentenced to be executed remained at 51.  About half were age 20 to 29 at the time of arrest for their capital offense; 13% were age 19 or younger; and less than 1% were age 55 or older.  Fifteen States and the Federal system required a minimum age of 18. Sixteen States indicated an age of eligibility between 14 and 17.

Population on Death Row – Ethnicity.  Whites comprised 54% (within this classification 12% were Hispanic); blacks comprised 44%; and other races (2%) included 27 American Indians, 33 Asians, and 12 persons of unknown race.

Cost of the Death Penalty.  Cost is much higher than life in prison without the possibility of parole. Life in prison is estimated to be $750,000 to $1.1 million per prisoner.  Between 1977 and 1996, California spent more than $1 billion on its death penalty and managed to execute only five men. In New York, the Department of Correctional Services calculated that reinstatement of the death penalty would cost the state $118 million each year.. In Florida, the average cost per execution is $3.2 million.

Why the Death Penalty is so Costly  Capital trials are more complex and time- consuming than other criminal trials at every stage in the legal process.  Extra costs associated with capital trials are incurred not only when a defendant is sentenced to death, but also when a defendant is acquitted or sentenced to life imprisonment.  Cost of operating death rows very high.  Additional cost of court appeals.

Is the Death Penalty Fairly Applied?  Only a minority of cases that would be eligible for the death penalty is the penalty pursued by the prosecution.  As Justice William O. Douglas observed, “One searches our chronicles in vain for the execution of any member of the affluent strata of this society. –Very few capital defendants can afford to hire their own lawyer, they are represented by either a public defender or a court-appointed private attorney. –Public defenders are paid less, and have less staff than prosecuting attorney’s office. –Capital defendants with court appointed lawyers are more than twice as likely to be sentenced to death than defendants with privately retained attorney’s.

Justice in Black and White  Wolfgang and Riedel’s research on rape convictions found that between 1945 and 1965, the best predictor of a death sentence was the race of the offender combined with the race of the victim.  Black population is 12% of U.S. population –41% of those on death row are black, since the reinstatement of the death penalty in 1976, –39.3% of the people executed have been black –86% of the executions have been people convicted of killing whites, even though half of all murder victims in the U.S. are black.

Wrongful Conviction and Execution  More than 100 people released from death row, later found to be innocent.  Bedua and Radelet’s research identified 416 persons who were wrongfully convicted of murder and sentenced to death between 1900 and In 23 cases they were executed. The authors continue to uncover such errors at the rate of about a dozen per year.

Death Penalty and Deterrence  Sellin’s research on state comparisons.  Peterson and Bailey state comparisons over twelve year period found that death penalty states had higher murder rates than non death penalty states, 8.64/100,000 vs  Lempert (1983) tested the relationship between the number of executions and number of homicides. He included several states over a fifteen year period, no relationship was found.  Archer and Gartner compared murder rates in twelve countries and two foreign cities before and after abolition of the death penalty. Eight of the fourteen showed a decreased murder rate in the year following abolition, while five showed an increase.

Why Killing Doesn’t Deter Killers,  Most murders are crimes of passion.  The death penalty has never been and will never be certain. In U.S. approximately 1% of homicides end in execution.  No immediacy – on average condemned prisoners wait over 10 years for their execution.  William Bowers meta analysis of 70 studies of murder rates concluded that executions actually increase murder rates.

What is the Taiwan Experience?  Are their biases in application of the death penalty?  Is it a deterrent?  Is it beneficial relative to the cost?  What is the error rate?