Oklahoma State University Global Capital Punishment Where Does

Oklahoma State University

Global Capital Punishment Where does the United States stand?

Katzee Reese

GS 5013 - Contemporary Issues Dr. Marten Brienen December 2019

The Debate of Capital Punishment

Capital punishment is a concept that is as old as official law itself. It is documented throughout history in ancient Rome, biblical times, the days of the vikings, throughout the kingdoms of Europe, the early Americas and really any other time period, location or society one could think of. It is often shown in movies and television in the form of brutal beheadings, burning people at the stake or graphic gallow hangings, and is often emphasized for emotional effect and utilized for dramatization. It is depicted in many works as fantasy, something that is far off or fiction. But that is not the case, even in today’s world.

Capital punishment has been abolished either in law or in practice in 142 countries around the world, but the United States remains among those who still utilize the punishment

(Amnesty International, 2019). The practice is a controversial human rights topic around the globe. There are a variety of international bodies, NGOs and individual governments that call for the abolition of capital punishment throughout the globe, calling it a human rights issue. These include organizations such as the United Nations and the United Nations Commission of Human

Rights, nonprofit similar to ‘Hands Off Cain,’ a variety of groups as part of the World Coalition

Against the Death Penalty, and governing bodies around the world. There are also organized groups and governments that actively utilize and argue for the effectiveness of capital punishment in law enforcement and crime deterrence.

Arguments in favor of abolition include a variety of points. One argument is that judicial systems are not perfect and have the chance of sentencing innocent people to death before new evidence can prove reasonable doubt of guilt. This argument goes along with the belief that protecting innocent lives is more important than punishing guilty individuals. Another point

suggested by previous research is that capital punishment is applied in a way that is unfair to minorities and marginalized populations within a variety of environments, and is often applied in contexts of racism and discrimination. Another point is the belief in the sanctity of human life and that no person has the right to deprive another of life, no matter the circumstances.

Additionally, it is a concern that allowing capital punishment opens up more opportunities for corrupt governing bodies to utilize death penalties in an abuse of power to eliminate individuals seen as threats to those organizations.

Those in favor of retaining the death penalty have a variety of counter arguments. One point often seen is that the threat of death for a crime acts as a deterrent to those throughout society. In response to the idea of unfair application of capital punishment, it has been argued that minorities are more often convicted because they are more likely to commit the crimes.

Another belief is that capital punishment is just in cases of convicted murderers because the families of victims deserve the satisfaction of equal retribution for the crimes committed.

In the case against capital punishment, a variety of studies have been conducted within the United States alone to showcase issues with the application of the definitive punishment. One report in 1981 examined the role that racial discrimination plays within the United States criminal justice system. This study separated discrimination into five different categories; racial discriminatinon against minority defendants, disregard for minority crime victims, class discrimination, economic discrimination, and institutional racism. The categories of class and economic discrimination are not directly racial issues because they have the potential to impact all races, but they were mentioned as to not ignore the fact that they exist. This study actually found that black people in the United States overall are less likely to receive the death penalty for

homicide than white people, and that the phenomena is not limitied to only capital crimes.

However, the study also found that the Southern region of the United States was the only region to show significant evidence of discriminatory capital punishment rates toward black people. The study did however suggest that of the 11 percent of executions in the cases of rape, discrimination towards black offenders with white victims was substantial, but also limitied to the Southern region, but has since become irrelevant because the death penalty is no longer valid for cases of rape (Kleck, 1981).

One study in 2014 suggested that there is a noticeable number of innocent people in the

United States who are sentenced to death for crimes they did not commit. Although the extent of wrongful convictions is hard to determine because they are most likely to go undetected, the study believes that around one in every 25 people sentenced to death are wrongfully convicted of crimes they did not commit. This totals to about 4.1 percent of all death sentences, while the rate of exoneration since 1973 is only 1.6 percent (Gross, O’Brien, Hu & Kennedy, 2014). With the number of people that are innocent thought to be nearly double that of the rate of people exonerated, the study suggests a significant number of innocent individuals are not exonerated and are either executed, or spend the rest of their lives sitting inside of prison.

In 1977, Marlene Lehtinen provided pro-death penalty arguments pertaining to the application of centencing in the United States in a discriminatory manner and arguments about the effectiveness of crime deterrence. Lehtinen made the case that people fear death more than anything else and that this threat of death as a punishment will be more effective than other punishments by pointing out that even if only a fraction of homicides are deterred, then saving these innocent lives would itself be significantly beneficial. However, Lehtinen also goes on to

address the counter point of the possibility that individuals commit suicide via this route by committing crimes punishable by death with the intent of being executed because they are suicidal, but do not wish to commit the act themselves and would rather allow the state to do it for them. Lehtinen simply states that there is little evidence to support this case and that there will always be those in society who are mentally ill and those individuals have “a weak self-concept” and that eliminating the “glamour and drama” from court proceedings would limit these cases (Lehtinen, 1977).

Lehtinen also addresses the topic of discriminatory application of the death penalty.

Lehtinen concedes that between 1930 and 1967, the majority of individuals executed were african american people at 55 percent of executions, while african americans only made up 10 percent of the overall population. While not necessarily evidence of discrimination, these numbers are at minimum suggestive of racial bias. The justification Lehtinen offered for this point was that it may be the case that the majority of crimes that call for execution are committed by african americans and that safeguards could easily be put in place by the Supreme Court to eliminate possible discrimination (Lehtinen, 1977).

Within the United States, public opinion is crucial to policy debates in the context of democratic methods of changing and developing policy. The public’s opinion on the death penalty has influenced policies throughout the years. There have been multiple surveys and studies conducted to analyze the opinions and motivations of the public on this topic.

Once such study analyzed individual’s opinions when compared with if the believe whether or not some innocent people have been executed after being convicted of crimes they didn’t commit. This study found overall that most respondents do suspect that innocent

individuals have been executed within the past five years. Additionally, it was found that if an individual believed an innocent person had been executed, they were less likely to support the use of the death penalty (Unnever & Cullen, 2005).

Most recently in 2019, a study was conducted by Gallup to gauge the approval of the death penalty over life imprisonment, and results showcased a significant change from previous years. The graph below showcases the trends since 1986 in the public’s preference of the death penalty when presented with the alternative of life imprisonment.

Figure 1. Source: Jeffrey M. Jones, 2019. Gallup News. Americans Now Support Life in Prison Over Death Penalty.

It is notable that the most recent survey of 2019 indicates that for the first time in survey history, when presented with a choice between the two, 60 percent of Americans prefer a life imprisonment sentence, whereas 36 percent of respondents prefer the death penalty (Jones,

2019). This is a 15 percent increase since the survey in 2016 in the preference of life

imprisonment sentences. It is also a 26 percent increase since the first survey was conducted in

1986. However, this is not to say that a majority of Americans oppose the use of the death penalty.

Figure 2. Source: Jeffrey M. Jones, 2019. Gallup News. Americans Now Support Life in Prison Over Death Penalty.

The same survey showed that a majority of Americans overall still approve of the use of the death penalty for people convicted of murder, with 56 percent indicating they approve of the punishment and only 42 percent opposing its use in the court systems (Jones, 2019). The trends show a decrease in approval over the past two decades, but are not indicative of all-time lows or highs throughout the survey’s history. In fact, the public opinion has shifted multiple times throughout the 80-year documentation. This data goes along with the trends of changes throughout the recent history of the American capital punishment policy.

It is important to discuss the history of the death penalty to understand the trends in debate and opinions surrounding capital punishment. The international community has heavily criticized the United States for its use of capital punishment, but the country has seen a variety of changes over the years in addition to its change in public opinion. This paper will take a look at the historical background of the death penalty and take a look at how the United States compares to the rest of the world in this human rights debate.

History of Capital Punishment

The documented history of the death penalty is almost as long as the documented history of mankind itself. There have been far too many points in time related to the death penalty to name. There are however a few key points throughout history worth noting in relation to the current

The first documented official death penalty can be found as early as the Fifth Century in the Law of the Twelve Tables established in ancient Rome. These tables are historically the first approach at laws passed by government concerning the interactions between citizens. Mentions of the death penalty include death by burning for committing arson and death by crucifixion for the crime of using magic on crops (Cartwright, 2016). These laws are reflective of what was important in those times, agriculture and personal property. Punishment was formed around the idea of compensation and substitution. The compensation for many acts was thought to be that of the life of the accused as satisfactory repayment of the wrong-doing. This came before the time of the concept of prison systems as a form of punishment.

The death penalty is clearly not a new concept, nor is it one with little thought contributed. Societies have been creative throughout history with how their executions take place. Documented methods have included stoning, crucifixion, burning, drowning, dismemberment, beheading, hanging, death by firing squad, single shooting, electrocution and lethal injection. These actions come with a history of criticism and international pressure to reconsider policy.

The first notably impactful written criticism of modern times came in 1767. On Crimes and Punishments by Cesare Beccaria, put forth some of the first modern arguments against the

use of capital punishment. Beccari wrote statements such as; “Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves (Halsall, 1997)?” Beccari’s essay provided a voice against the death penalty and influenced discussions among intellectuals around the world.

The essay inspired early Americans to reconsider their policies. Leading up to and in the early 1800’s, many people in American and Europe began to question the death penalty. In 1794,

Dr. Benjamin Rush and Benjamin Franklin proposed to the U.S. state of Pennsylvania that the death penalty should be reformed and minimized to only include particular cases of murder. The proposal was successful, and Pennsylvania became the first U.S. state to repeal the death penalty for all offenses except first degree murder. Later in 1834, Pennsylvania also became the first state to carry out executions privately rather than in the public eye (Death Penalty Information

Center, 2017).

In 1846, Michigan abolished the policy completely, with Rhode Island and Wisconsin following soon after. European countries and Canada began to question the act killing of more people in the wake of World War II, and one by one Western European countries and Canada abolished the execution of criminals, leaving the United States the last western democracy to hold capital punishment (Constitutional Rights Foundation, 2012).

By the end of the century, many countries around the world began reconsidering their capital punishment policies. Portugal, Venezuela, Netherlands, Costa Rica and Ecuador were some of the first to begin the process of abolition (Death Penalty Information Center, 2017).

Portugal was the first to abolish executions in practice, with the last execution taking place in

1849, but Austria was the first country from the current European Union to abolish the penalty in

law for all crimes in 1968. A number of countries such as Finland, Sweden and Portugal followed suite in the 70’s. Many other countries abolished executions in practice much before this, but their laws were not changed until later on (European Parliament, 2019).

In the United States, people were beginning to take notice of the growing global disapproval of capital punishment. The 1950’s and 1960’s saw mass protests across the nation and executions saw a decline, with only two executions being held in 1967 and none in the following years through 1976 (Constitutional Rights Foundation, 2012). The Supreme Court ruling in 1972 deemed current capital punishment laws unconstitutional for being “cruel and unusual” because of inconsistencies with their applications and the country saw a mass overhaul of policies across the states (History.com Editors, 2010).

A variety of Supreme Court cases were held over time, but almost all of them encompassed discussion about the United States’ Eighth Amendment. The Eighth Amendment states “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (Constitution Center, n.d.).” In 1976, the death penalty was deemed constitutional again under the standards that although punishments were not to be excessive in relation to the offence, that does not mean that prosecutors must choose the least severe punishment (Capital Punishment in Context, n.d.).

The United Nations took an official move towards the abolition of the death penalty worldwide in 1989 and has since issued multiple legally binding resolutions, most recently in

2018, with 121 nations voting in favor, 35 voting against and 32 abstaining (Ministry for Europe and Foreign Affairs, 2018). The first resolution for the call to moratorium was presented to the

United Nations General Assembly by the Italian government in 1994 and lost by only eight

votes, but later went on to approval in 1997 (Hands Off Cain, n.d.). Subsequently proposed resolutions throughout the years have continued to receive majority approval.

Since 1976 when the United States reaffirmed the death penalty as constituional, over 75 countries around the world have abolished capital punishments for all crimes (Death Penalty

Information Center, 2017). The United States’ history since 1976 takes a different route however. The 10-year moratorium on executions ends with a death by firing squad in 1977 and later that same year, Oklahoma became the first state to adopt lethal injection as a method of execution. However, the first use of lethal injection in the country did not take place until 1982

(CNN Library, 2019).

It wasn’t until January 2000 that Illinois became the first state to officially declare a moratorium on executions since 1976 (CNN Library, 2019). There are however 17 states that have not held an execution since before 1976 and in 2019, there are 21 states that do not have a death penalty and 4 that hold a moratorium, leaving only 24 states to still hold a death penalty as a punishment (Death Penalty Information Center, 2019). This leaves the country as an almost equally divided abolitionist and retentionist country.

Trends in the number of executions carried out in the United States show an overall decline. The following figure shows the number of recorded executions throughout the United

States. As shown, the numbers are shrinking each year since 2009 and indicate that the United

States’ execution trends, along with state policy trends, are moving in a new direction.

Figure 3. Source: Death Penalty Information Center, October 2017. DPIC Analysis: Execution Trends Continue to Decline in 2017.

As previously noted, public approval of the death penalty is on a downward slope. This is potentially one contributing factor for the decline in executions carried out over the years.

Additionally, some international suppliers of drugs utilized in lethal injection, the United States’ favored execution method, have banned exportation. The drug shortage began in 2010 and continued after a variety of governments and anti-death penalty activists pressured manufacturing companies to stop supplying the drugs (Lopez, 2015). This has forced states to utilize new and experimental drugs in their executions and has resulted in botched executions.

The stories of these botched executions and the suffering of individuals caused both legal ramifications and public criticism.

Still, the United States remains within the minority group of countries that still utilize capital punishment. It remains the only country in North America to execute convicted criminals and falls among the company of countries such as China, Saudi Arabia, Afghanistan and Japan that still carry out executions. The following figure shows the geographic spread of the countries who do and do not utilize capital punishment policies around the world.

Figure 4. Source: Death Penalty Information Center, 2017. Abolitionist and Retentionist Countries.

In 2018, at least 690 people were reported to have been executed in only 20 countries, making the number of known executions the lowest number that Amnesty International has reported within the past decade. The United States finds itself among those countries listed for

the year. The recorded methods utilized included beheading, electrocution, hanging, lethal injection and shooting (Amnesty International, 2019).

All executions carried out in the United States in 2018 were through lethal injection, with the exception of one electrocution in Tennessee, making the United States the only country in the world to have recorded utilizing electrocution in 2018 (Cornell Law School, 2019). According to

Amnesty International, the United States held 25 executions and ranked seventh in most executions carried out in 2018, following only after China, Iran, Saudi Arabia, Vietnam, Iraq and

Egypt (2019). The state of Texas accounts for over half of the country’s total, carrying out 13 executions in 2018. These numbers continue on trend with the facts previously shown in Figure

While China’s figures regarding execution remain state secrets, the numbers are estimated to be in the 1,000’s. Although the United States’ total of 25 does not begin to compare to that number, it is still interesting to see the U.S. grouped together with countries such as these on such a globally controversial human rights topic.

Amnesty International’s report comments that, outside of the United States of America, trends in the Americas are continuing to move towards ending the use of the death penalty. No other countries in the region carried out executions and only one other, Guyana, recorded a death sentence in 2018 (2019).

Although some citizen groups in the United States protest the use of capital punishment within the states that still utilize the practice, there is little evidence that the policy will change on a federal level in the near future. Even after years of pressure from the international

community, the Federal government made moves in 2019 to resume execution of federal inmates after a moratorium since 2003 (Benner, 2019).

Even as an outlier on the international stage on this particular human rights issue, the

United States shows little evidence that it will change its stance in the near future. Although a variety of trends show a decline in the number of execution and the public and state approval of capital punishment, the current administration does not seem to follow suite. As the country continues to take criticism from international organizations, it is unclear whether or not the

United States will come to the end of its decline and succumb to international pressure to federally view capital punishment as a human rights violation.

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