AMERICAN CIVIL LIBERTIES UNION BRIEFING PAPER NUMBER 14 Updated Spring 1999 THE DEATH PENALTY
The United States is on an For example, in Florida, in execution rampage. Since capital comparable cases, “a punishment was reinstated by defendant’s odds of receiving a the Supreme Court in the 1976 death sentence are 4.8 times Gregg v. Georgia decision, more higher if the victim was white than 525 men and women have than if the victim was black. In been put to death by the state. Illinois the multiplier is 4, in More than 150 of these Oklahoma it is 4.3, in North executions have taken place Carolina, 4.4, and in since 1996. 3,500 people are on Mississippi, it is 5.5.” death row today, awaiting their turn with the executioner. The state of Kentucky presents a particularly outrageous Capital punishment has existed example of race-of-victim throughout most of the course discrimination: despite the fact of our nation’s history. By the that 1,000 African Americans mid-1960s, however, public have been murdered there since opposition to the death penalty the 1975 reinstitution of the had reached an all-time high, and the determines whether or not a death death penalty in that state, as of spring practice was banned by the Supreme sentence is handed down is not the facts of 1999, all of the state’s 39 death row Court in the 1972 Furman v. Georgia the crime, but the quality of the legal inmates were sentenced for murdering a decision. The Court held that state death representation. The overwhelming white victim; none were there for penalty statutes were devoid of any majority of death row inmates receive murdering an African American. standards, and that they therefore gave too substandard legal representation at trial. much discretion to individual judges and Almost all capital-crime defendants are Several studies show the effects of outright juries to exact the ultimate punishment. indigent when arrested, and are generally racial discrimination. One recent example, represented by court-appointed lawyers, a 1998 University of Iowa study of Soon after the Furman decision, states who are inexperienced and underpaid. The sentencing in Philadelphia, showed that began passing new laws that provided National Law Journal, reviewing capital the odds of receiving a death sentence are sentencing guidelines for juries. The cases in six Southern states, reported that nearly 3.9 times greater if the defendant is Supreme Court was given another defense lawyers are often “ill-trained, African American. opportunity to address the issue of capital unprepared... [and] grossly underpaid.” punishment in 1976, in Gregg v. Georgia, These patterns of racial disparities are and it ruled that “the punishment of death Defending a capital case is time- partly explained by the fact that the does not invariably violate the consuming, taking about 700-1000 hours. nation’s prosecutors, who make the Constitution.” Since this ruling, capital In some jurisdictions the hourly rates for threshold decision about whether or not to punishment rates have grown exponentially appointed attorneys in capital cases are less in the United States. than the minimum wage, and usually much less than the lawyer’s hourly expenses. In 1994, the Federal Death Penalty Act Moreover, courts often authorize (Capital Punishment is) a authorized capital punishment for more than inadequate funds for investigation and privilege of the poor. 60 offenses, including some crimes that do not experts — or refuse to do so altogether. involve murder. Moreover, the 1996 Anti- This is in the face of the almost limitless – Clinton Duffy, former warden, Terrorism and Effective Death Penalty such funding for the prosecution. Wealthy San Quentin Prison, California Act created new barriers to effective federal people who can hire their own counsel are review of constitutional claims in capital generally spared the death penalty, no cases. Congress and many states have also matter how heinous their crimes. Poor seek the death penalty are almost slashed funding for most of the legal people do not have the same opportunity exclusively white men. Of the district representation death row inmates formerly to buy their lives. attorneys in U.S. counties using capital received from death penalty resource centers. punishment, 98% are white, and only 1% Racial Bias Permeates the System — are African American. New York State has Capital punishment, the ultimate denial of Death row in the U.S. has always held a only one African American district attorney. civil liberties, is a costly, irreversible and disproportionately large population of barbaric practice, the epitome of cruel and people of color relative to the general Where You Live Determines Whether You unusual punishment. It does not deter population. Whereas African Americans Die — Whether someone convicted of a crime, and the way it is implemented is constitute 12% of the U.S. population, capital crime receives a death sentence grotesquely unfair. they are 35% of those on death row; 9% depends greatly on the state or county in are Native American, Latino or Asian. which the trial and conviction takes place. The most important factor in levying the In some states, a death sentence is rare. THE DEATH PENALTY IS death penalty, however, is the race of the Connecticut had five people on death row UNFAIR victim. (Those who kill a white person are in 1999; Kansas, only two. Southern states, more likely to receive the death penalty particularly Texas (443 death row inmates Regardless of one’s viewpoint about the than those who kill a black person.) in 1999), hand down significantly more morality or constitutionality of the death death sentences than those in the rest of penalty, most people would agree that if we A 1998 report by the Death Penalty the country. California, the state with the are going to continue executing people in Information Center summarizes the largest penal system, had 513 inmates on the U.S., we should be doing it fairly and findings of several scholars which illustrate death row in the spring of 1999. Such rationally. However, three factors, this point. In 96% of the studies state-to-state disparities exist because unrelated to the crime itself, greatly examining the relationship between race death penalty statutes are a patchwork of influence who gets executed and who does and the death penalty there was a pattern disparate standards, rules and practices and not: poverty, race and geography. of race-of-victim or race-of-defendant the consequence is the difference between discrimination, or both. life and death. Furthermore, some Lethal Injection for the Poor — The prosecutors are more zealous in seeking the American Bar Association and many The report also reveals a consistent trend death penalty than others – particularly if scholars have found that what most often indicating race-of-victim discrimination. they are running for re-election. In some states, inmates can be executed chamber, firing squad (still authorized in for crimes they committed at the age of Idaho and Utah), and the most common 16; in others, only those who committed method, lethal injection. The United murder at age 18 or older are eligible for States is the only Western industrialized the death penalty. Some states, but not all, nation that practices the death penalty, and ban the execution of people with mental is by far the nation with the largest death retardation. Some states include felony row roster in the world. In comparison, all murder (unpremeditated murder of Western Europe has abolished the death committed in the course of another crime penalty, either by decree of law, or by such as robbery or burglary) as a capital practice. Fifty-seven nations and territories crime; others do not. In the 29 states that outlaw the death penalty for any crime, have a sentence of life without parole, 23 fifteen more allow it only for exceptional have statutes that bar judges from letting crimes such as military law or wartime jurors know they have that sentencing crimes. Another twenty-six countries and option. Since studies consistently show territories are abolitionist de facto, that when given a choice between a death Anthony Porter spent 16 years on death row for a meaning they have not executed anyone sentence and a sentence of life without crime he did not commit. He was released a mere during the past ten years or more, or that parole, most people will choose the latter, two days before his execution was to take place. they have made an international failure to inform a jury of this alternative is Here, he embraces his mother at home. commitment not to carry out executions. tantamount to sending more people to the In numbers of people executed annually, execution chamber. the United States far exceeds the other 94 lives…. The use of the death penalty only documented countries and territories that lowers the standards of government to the continue to deliver the death penalty. CAPITAL PUNISHMENT IS mentality of the murderer himself.” We do NOT A DETERRENT TO not punish rape with rape, or burn down MURDER the house of an arsonist. We should not, WHAT ALTERNATIVES therefore, punish the murderer with death. ARE THERE TO CAPITAL PUNISHMENT? Social science research has discredited the The irreversibility of the death penalty is claim that execution deters murder. The especially significant in light of the majority of murders are committed in the percentage of innocent people on death Various polls of public attitudes about heat of passion, and/or under the influence row. A study published in 1982 in the crime and punishment found that a of alcohol or drugs, when there is little Stanford Law Review documents 350 majority of people in the United States thought given to the possible consequences capital convictions in which it was later support alternatives to capital punishment. of the act. “Hit men” and other murderers proven that the convict had not According to the Death Penalty who plan their crimes beforehand, intend committed the crime. Of those, 23 Information Center, when presented with and expect to avoid punishment altogether convicts were executed; others spent possible sentencing alternatives, 50% of by not getting caught. decades of their lives in prison. In a 1996 those surveyed chose life imprisonment update of this study it was revealed that in without parole plus restitution to the Law enforcement officials know that the the past few years alone, four individuals victim’s family as an alternative to the death penalty is not a deterrent. Imposing the were executed although there was strong death penalty. “A society that respects life does not In 45 states, laws allow life sentences for murder that severely limit or eliminate the deliberately kill human beings. possibility of parole. Thirteen states impose An execution is a violent public spectacle of official homicide, and one sentences without the possibility of parole that endorses killing to solve social problems – the worst possible for 25 - 40 years, and all but three of the example to set for the citizenry. The benefits of capital punishment are states that use capital punishment also have illusory, but the bloodshed and the resulting destruction of community the option of life imprisonment with no possibility of parole. Although it is often decency are real.” – Hugo Bedau, in The Case Against the Death Penalty assumed that capital punishment is less costly than life imprisonment, the opposite death penalty more often was thought to be evidence that they were not guilty of the is true: in terms of dollars, in terms of crime cost-effective by only 29% of 386 randomly crime for which they were condemned. control, and in terms of morality. selected U.S. police chiefs polled by Peter D. Hart Research Associates in 1995. States that Since 1976, 77 persons have been released RESOURCES: have death penalty laws do not have lower from death row because they were not guilty of the crime for which they had Hugo A. Bedau, The Case Against the Death crime rates or murder rates than states without Penalty, 1997. Available through ACLU such laws. And states that have abolished been condemned to death (33 of these Publications, 1-800-775-ACLU capital punishment, or reinstituted it, show releases have occurred since 1990). These no significant changes in either crime or lucky interventions occurred almost always ACLU Capital Punishment Project Activities murder rates. as the result of the efforts of students, and Status Report, 1996 journalists or pro bono lawyers, often only Death Penalty Information Center, 1320 18th hours before a scheduled execution, and Street, NW, Washington, DC, 20036, AN UNJUSTIFIED AND usually after the condemned had been on www.essential.org/dpic/ IRREVERSIBLE MEANS OF death row for over ten years. NAACP/LDEF, 99 Hudson Street, NY, NY RETRIBUTION 10013-2897. Although it is commonly thought that the However satisfying vengeance may seem, a death penalty is reserved for those who For more information about the ACLU civilized society cannot accept an eye-for- commit the most heinous crimes, in reality Capital Punishment Project, please contact only a small percentage of death-sentenced them at: 122 Maryland Avenue, N.E., an-eye, tooth-for-a-tooth delivery of Washington, D.C. 20002, justice. Although some families and loved inmates were convicted of unusually vicious
Financial and emotional support is what E-Mail: [email protected] A BARBARIC PRACTICE America Online (AOL) keyword: ACLU they need most, not more violence. In the World Wide Web: http://www.aclu.org words of the father of one murder victim, American Civil Liberties Union “Violence is not an acceptable method of Our nation exacts capital punishment in 125 Broad Street, 18th floor solving the problems that arise in our daily five ways: by hanging, electrocution, gas New York, N. Y. 10004