THE DEATH PENALTY by Michael Vassallo

THE DEATH PENALTY By Michael Vassallo

INTRODUCTION

In early 1992, months after a fire burst out in his home in Corsicana, Texas, just 50 miles south of Dallas, Cameron Todd Willingham was arrested for murder and arson. What first appeared a mere tragedy, a family house burning in a fire and three infants perishing from smoke inhalation, soon appeared much more suspicious once investigators deemed arson as the source of the fire. Soon after, the press reported Willingham out drinking and laughing only days after his children’s funeral, while eyewitnesses from the night of the fire reported Willingham escaping from the house and not even attempting to rescue his children. At his trial, Cameron Todd jailhouse informant Johnny Webb testified that Willingham had Willingham and his confessed his guilt to him in prison. With Webb’s testimony and an three infant children, abundance of circumstantial evidence, Willingham was convicted who died in a fire in and sentenced to die by lethal injection. December 1991. After his 2004 execution, doubts began to emerge. Despite Willingham’s profile as an abusive father, the lack of physical The New Yorker evidence and Willingham’s continued pleas of innocence raised questions. These doubts were only exacerbated when Johnny Webb recanted his testimony and claimed he had lied on the stand to implicate Willingham. Though Willingham has not and likely will never be exonerated, the questions of his guilt raised newfound doubts not only about the American criminal justice system, but also about the death penalty as a whole. If he was still alive, was there a chance he could have been eventually exonerated? Should there be a higher barrier of proof for executions? Is it even ethical for the state to execute any criminal at all, whether or not they are guilty?

HARVARD MODEL CONGRESS

EXPLANATION OF THE ISSUE

Historical Development Furman v. Georgia Capital punishment came to the Americas from Britain in the – A 1972 Supreme seventeenth century. The Eighth Amendment of the Constitution Court case that ruled prohibits “cruel and unusual punishment” and the Fourteenth the death penalty’s Amendment enshrined that the government could not deprive application by states anyone of their life without due process. Since its introduction, to be in violation of individual states have differed in how they have addressed the the Eighth death penalty. For example, since gaining statehood Michigan has Amendment never conducted an execution (“Michigan”). In the mid-twentieth century, capital punishment faced a series of legal challenges. In 1972, the Supreme Court struck down all uses of the death penalty in Furman v. Georgia, on the grounds that its application by states violated the Eighth Amendment (“Furman v. Georgia, 408 U.S. 238 (1972)).” This ruling created a de facto moratorium on Lethal Injection – federal and state executions that ended four years later after the The primary way that 1976 ruling in Gregg v. Georgia. This case set criteria for how executions are capital punishment should be implemented and deemed it not conducted today. inherently unconstitutional. Lethal injections Since then, nearly 8,000 Americans have been sentenced to be typically involve executed, 1500 have been executed, and 165 have been freed from injecting individuals death row (“Innocence”). During that same time, American doctors with three drugs. pioneered the use of lethal injection, in which individuals are injected with a cocktail of drugs meant to slow the heart and cause immediate death. This particular method of execution replaced hanging, firing squads, and the electric chair as the primary mechanisms in the nation. Lethal injection’s constitutionality was upheld in a 2008 Supreme Court decision. However, questions Sodium Thiopental about this method have been raised as drug companies have halted – A rapidly acting manufacturing the necessary drugs, and states have seen a rise in general anesthetic botched executions in part because doctors, who are the most that was often used to qualified to give these injections, are never involved in executions sedate prisoners because of the profession’s ethical code. Specifically, because the during lethal process involves the injection of three drugs, the first of which is an injections. As of now, anesthetic, if the inmate is not entirely knocked out for the it is virtually administration of the second two injections, then the death is far inaccessible in the US from a painless and peaceful process. and states have begun searching for Scope of the Problem alternative anesthetics. Lethal Injection Oklahoma’s state medical examiner Jay Chapman pioneered lethal injection in 1977 as an alternative to what many believed to be the unnecessarily brutal electric chair. The procedure consists of three injections: an anesthetic, a paralytic, and a drug that triggers

cardiac arrest. Two of the drugs are especially tortuous, likening it to “being buried alive with fire in your veins” (Segura). As such, the anesthetic is perhaps the most important drug. However, in 2011, Europe banned the export of sodium thiopental, the drug most commonly used as an anesthetic in lethal injections, and American Midazolam – A less drug companies stopped producing it, making the drug virtually effective alternative to inaccessible (Ford). In searching for a replacement, some states sodium thiopental have adopted the depressant Midazolam, which depresses the that induces subject’s nervous system but does not entirely knock them out, sleepiness but does meaning that the pain from the injection procedure is not entirely not knock the subject numbed. out entirely. Lethal injection as a result has come under fire, and in 2014 Oklahoma inmate Clayton Lockett suffered a heart attack during a botched execution. Since then, the lack of access to proper 42% of those on anesthetics, the administration of executions by amateurs, the death row are history of botched executions, and the fact that many inmates on black, despite being death row request the ability to choose a different means of execution has prompted question of if lethal injection should be the only 13% of the way that states conduct capital punishment at all. population. Racial and Economic Disparities One of the most prominent arguments among anti-death penalty advocates is that the process discriminates along racial and socioeconomic lines. According to the ACLU, a criminal defendant is 4.3 times more likely to be executed if he is black than if he is white. Additionally, 90% of death row inmates cannot afford legal counsel and are instead represented by overworked and ineffective public defenders (“The Case Against the Death Penalty”). Especially It is estimated that considering most death sentences come after defendants refuse to approximately 3% accept plea deals for life in prison, it is easy to imagine the of executions from importance of effective legal counsel. Additionally, black criminals 1890 to 2010 were who kill white victims are statistically more likely to be sentenced to botched, with die than white defendants killing someone of any race. lethal injection Prosecutorial Misconduct and Wrongful Executions having the highest Obviously, the biggest concern with capital punishment in the rate of botched United States is the fear of executing an innocent person. While the executions. US has executed over 1500 people, 168 former death row prisoners have been exonerated and set free. Of prisoners who end up being executed, there has not been a proven instance of the US executing someone innocent, but courts are generally wary to reconsider cases of prisoners already dead (“Innocence”). However, there are many instances of death row cases, such as Willingham’s, where incriminating testimony was the primary evidence driving the conviction, and after the defendant’s execution the testimony was recanted with the witness citing compulsion by prosecutors as the reason for their initial lies.

Tenth Amendment Constitutionality of Abolition – The Tenth Currently capital punishment is legal in 28 states as well as Amendment to the federally. 22 states and Washington, DC have either passed laws Constitution states: abolishing it or their state Supreme Courts have ruled it “The powers not unconstitutional. The federal government had not carried out a delegated to the federal execution since 2003, until an execution in the Summer of United States by the 2020. In 2019 Attorney General William Barr had announced that Constitution, nor the Justice Department would seek to carry out executions of five prohibited by it to the death row inmates convicted of federal crimes (Simpson). Even if states, are reserved to Congress passed a law ending federal executions, capital the states punishment would still be legal in 28 states, who would be able to respectively, or to the execute prisoners convicted of state crimes. The overall punishment people.” entirely is in question owing to the Tenth Amendment, which preserves a certain level of state autonomy. As long as capital punishment is technically constitutional in the eyes of the Supreme Antiterrorism and Court, it is unlikely that Congress could legally ban states from Effective Death conducting executions outright and would instead need to create a Penalty Act sort of incentive system. (AEDPA) – Passed in 1996, this bill Congressional Action streamlined the death penalty appeals In the years after Furman v. Georgia, Congress has passed very process and allowed few bills with regards to the death penalty. In fact, the policy for executions to be surrounding capital punishment has been litigated mostly within used against the states and in the courts. In 1996, however, Congress passed the terrorists who use Antiterrorism and Effective Death Penalty Act (AEDPA), weapons of mass which streamlined the appeals process for capital punishments and destruction to kill or allowed for the use of the death penalty on individuals who threaten threaten Americans. or do harm with weapons of mass destruction. There are a few bills that have been introduced on the Congressional floor in the past year, but none have yet passed. HR99, introduced in January 2019, Aggravating sought to expand the list of aggravating factors to include Factors – Factors targeting law enforcement officials or first responders (Buchanan that exacerbate a and Vern). A different bill, HR 3980, would require that if a jury in certain crime and a capital case does not reach a unanimous sentencing thus make the death recommendation, a second jury will be convened. If this second jury penalty more legally cannot make unanimous decision, then the court is automatically applicable for that barred from imposing a death sentence (Keller and Fred). specific case. These Meanwhile, HR 4022 seeks to abolish the death penalty entirely include recidivism, (Espillat and Adriano). But as previously mentioned, Congress lack of remorse, cannot abolish the death penalty for state crimes in the states where committing a crime in it is legal. front of a child. Other Policy Action

22 states have abolished the death penalty, either through official laws or by the state Supreme Court ruling the practice unconstitutional. Federally, a number of Supreme Court cases have

narrowed the application of capital punishment. In Roper v. Roper v. Simmons Simmons, the Court ruled it was unconstitutional to impose the – This 2005 Supreme death penalty for a crime committed by a child under the age of 18. Court ruling deemed Three years later, in 2008, the Court ruled in Kennedy v. it unconstitutional Louisiana that the death penalty is unconstitutional in all cases under the Eighth that do not involve murder or crimes against the State (eg: treason). Amendment to use the However, since then, there has yet to be an instance of an inmate death penalty for a reaching death row for a crime other than murder, so the precedent crime committed by a of using capital punishment for crimes against the State has yet to minor, concluding be tested in court. However, the Court has protected the overall children are constitutionality of capital punishment, though that precedent has categorically less not been tested recently. As long as the death penalty stays culpable than adults. constitutional as a whole, the federal government will likely be legally unable to outright bar individual states from carrying out executions.

IDEOLOGICAL VIEWPOINTS

Conservative View Conservatives are generally more supportive of the death penalty, decrying leftwing attempts for abolition and emphasizing its constitutionality under the Supreme Court. However, some conservatives, especially those who are more religious, such as Kennedy v. devout Catholics, have decried the death penalty from within a Louisiana – This broader pro-life ideology. 2008 ruling declared it unconstitutional to Liberal View use capital punishment in any Liberals are more focused on criminal justice reform and case that does not generally support means of ending capital punishment, whether involve murder or through setting higher barriers for punishment or total abolition. crimes against the Independent, left-leaning groups, such as the ACLU, have also State. taken to the courts to oppose the constitutionality of lethal injection and the death penalty. Liberals are especially concerned with the inequities, both racial and socio-economic, within capital punishment, and how these inequities affect other elements of the criminal justice system.

AREAS OF DEBATE

Abolish the Death Penalty This policy is the most common proposal from liberals and has been enacted in many blue states across the country. However, many prominent liberal politicians have proposed abolishing the

death penalty federally, and currently HR 4022 is on the floor in the House of Representatives seeking to do just that. Advocates of Conservatives abolition argue that the death penalty is unconstitutional, cruel, Concerned about inequitable, and oversteps the limits of the State’s power in a the Death Penalty modern society. Abolition would solve all of these listed objections – an organization of associated with the death penalty, but it raises some issues of its Republicans and own as well. Libertarians calling Those in favor of abolishing the death penalty often see it as an for a national re- essential step in broader criminal justice reform. While liberals do examination of propose other reforms to the current system of capital punishment, America’s system of proponents of abolition argue there is no way to fix the socio- capital punishment. economic and racial inequities without eliminating the death penalty entirely. They decry other reforms as ineffective Band-Aid solutions. Opponents of this policy, however, argue that the death penalty is an ethical and proportional punishment for the most heinous crimes, and cite how the Supreme Court has continuously upheld its overall constitutionality. Similarly, opponents of broad abolition argue the policy should be left to the states, and that as the federal government has not executed a death row inmate in nearly 20 years, eliminating it federally would hardly make a difference. There is no Similarly, the federal government cannot compel states to eliminate evidence that their death penalties, so a complex incentivization program would capital punishment likely be necessary in any legislation deters crime. Political Perspectives on this Solution Liberals tend to support this position on the grounds that the government should intervene to reduce social and economic inequalities, while conservatives generally oppose on the grounds that the death penalty is constitutional and federally abolishing it would decrease states’ rights. Some conservatives, however, do support abolition because of religious and spiritual beliefs in the sanctity of life. Among these conservatives is the group Conservatives Concerned about the Death Penalty, which is an organization of Republicans and Libertarians calling for a national re-examination of capital punishment. However, these conservatives are generally in the minority. In addition, some conservatives support the death penalty because they believe that it reduces crime, but there is no actual evidence that capital punishment deters crime (“A Clear Scientific Consensus”). While Vice President Joseph Biden is in favor of abolition, President Donald Trump supports capital punishment and has made these conservative claims that the death penalty disincentives crime. Attorney General Barr and his Department of Justice have made it a priority to fight in the courts to resume executions at the federal level.

Change the Method of Execution Bucklew v. Precythe – A 2019 This solution seeks to solve the problem of lethal injections and Supreme Court botched executions. Though the constitutionality of lethal injection decision that ruled was upheld in court, since the 2011 pause on the anesthetic sodium that a prisoner thiopental’s importation into the US, the procedure has become seeking an alternative much more difficult and more likely to be botched. States, such as form of execution Oklahoma, have adopted other methods of execution such as gas, must prove this electrocution, and firing squad, the last of which is actually most requested method popular among inmates and prosecutors (“Methods of Execution”). would cause less pain Tennessee, for example, allows inmates to choose their method of than the state- execution among a few options. determined one. Those in favor of this solution argue that it reduces cost, allows death row inmates some semblance of choice, and lowers the chances of botched executions. Those opposed generally argue that every form of execution is cruel in one way or another. In addition, in the case Bucklew v. Precythe, the Supreme Court ruled that if a prisoner on death row seeks an alternative form of execution, he or she must prove that this new method would be less painful than the typical method. Political Perspectives on this Solution Liberals would be more likely to not heavily support this policy. While it mitigates some of the issues with the death penalty such as botched executions, many liberals do not support the death penalty in any form and would be more likely to support more stringent legislation. On the other hand, conservatives would more likely support this policy as it allows more freedom of choice and aims to lower some of the criticisms of the death penalty, like botched executions. Yet as stated above, there is still the underlying want to have the predominant method be the least painful. Instituting a Higher Barrier Though the death penalty is not broadly unpopular among Americans, at least when viewed from an ethical standpoint, most Americans have concerns about the implementation and fears of wrongful executions. In fact, 75% of Americans support higher standards for the death penalty beyond mere aggravating factors (Kelly). Those in favor of creating higher barriers argue that it is a perfect compromise between those who seek to abolish capital punishment and those who still deem it effective, arguing that the only effect of such a policy would be the beneficial reduction in errors in the criminal justice system. Opponents of this policy argue that it does not go far enough to address systemic problems within America’s criminal justice system

and that “higher barrier” is an amorphous term that is difficult to fully draft concrete policy around. Political Perspectives on this Solution HR 3980, proposed by Rep. Fred Keller (R-PA), seeks to reform jury sentencing laws so that if two different juries cannot reach a unanimous sentencing decision, then the death penalty is automatically off the table. However, despite its introduction in summer of 2019, the bill has not been brought to a vote on the House floor.

Attorney General Expansion of the Death Penalty Bill Barr, who has This solution seeks to solve the problem of crime at local, state, directed the and federal levels. Ways of expansion would be to pass bills Department of reaffirming the constitutionality of capital punishment, fighting Justice to attempt to statewide efforts for abolition, and seeking to lift the de facto carry out executions federal moratorium on executions, which the Trump administration on federal death attempted in 2019. There are currently 60 inmates on death row row inmates for the federally, following the first federal execution since 2003 in July of first time since 2003 2020. Proponents of this solution argue that capital punishment is a New York Times just punishment for the most heinous crime, is constitutional, and is an effective means of deterring crime, though the latter of these three arguments has no evidence backing it, as mentioned earlier. Opponents of this solution point to the fact that the death penalty is more expensive than life in prison, has been proved to not deter crime, can often be botched, and should only be employed for the most heinous crimes or never at all (“5 Myths About the Death Penalty”). Political Perspectives on this Solution Conservatives and liberals are generally both opposed to any large-scale expansion of the death penalty, and even proponents argue that states should be allowed to decide. However, some conservatives, especially Attorney General Barr in the Trump Administration, do support lifting the federal moratorium and carrying out executions on federal death row. Leaving it to the Courts Many independent organizations such as the NAACP and ACLU have been challenging the constitutionality of the death penalty in court under the Eighth Amendment, generally arguing that the racial and socioeconomic disparities make it a disproportionate punishment and therefore, “cruel and unusual.” This method would solve the issue of the federal government intervening in states’ laws to outlaw capital punishment. Additionally, the death penalty’s broad constitutionality has not

been considered by the Supreme Court since the 1970s, and many believe that new data and evidence might change the Court’s interpretation of the process. Those in favor of this solution argue that capital punishment is a judicial rather than a legislative issue, and that any nationwide abolition is impossible without the Supreme Court declaring the practice unconstitutional. Those in opposition believe that the government should not wait to reform the criminal justice system around the whims of the courts. They also state that the Supreme Court has already set a precedent ruling capital punishment constitutional and that broad Estimates show steps toward reform can be made through legislative means. that it costs 70% Political Perspectives on this Solution less to house a Liberals tend to support the challenging of capital punishment prisoner for life in court by independent groups but argue that simply leaving than to keep him on reform up to the judicial system is not enough. They argue that the death row and federal government can end the death penalty federally and incentivize states to take steps that follow this example. carry out an Conservatives tend to support the premise more generally that execution. capital punishment is a judicial, not legislative issue, but they are also keen to note that the death penalty’s constitutionality has been reaffirmed by the courts. As a result, additional challenges from the left nowadays are viewed as redundant and worth of being struck down. Independent groups such as the ACLU and NAACP, which are leading the charge challenging the death penalty in the courts, however, have dismissed these concerns and advocated that new data and information, as well as changing attitudes, are worthy reason for a reexamination of judicial precedent.

BUDGETARY CONSIDERATIONS

Budgetary considerations are not at the forefront of issues regarding capital punishment because legislation would mostly be focused on reforming legislation and precedents rather than commissioning and funding new groups. The only exception is perhaps to study and gather more data. Current estimations do show however that the average inmate given life in prison costs 70% less than an inmate who spends time on death row and is executed (“Death Penalty Cost”).

CONCLUSION

Delegates seeking to reform capital punishment in the United States will not only have to grapple with their own moral opinions

toward the process, but also the opinions of their constituents and past judicial precedent set forth by the courts. Specifically, despite its many described flaws, a small majority of Americans still in fact support capital punishment, despite an overwhelming majority who support reform to reduce the likelihood of botched and wrongful executions. However, any reforms that seek to address these wants of the American people will also need to reckon with guidelines set from the Supreme Court, specifically those which rule lethal injection constitutional, note that any different method of execution requested by inmates must be proven to reduce pain, and generally support states’ rights to have their own death penalties even if the process is abolished federally. Lastly, it may be useful to examine the precedents that other countries have set regarding criminal justice and systems of punishment, to use as a sort of case study by which to examine the effectiveness of a proposed solution.

GUIDE TO FURTHER RESEARCH

Additional resources for studying more about capital punishment in the United States include the ACLU’s website, Amnesty International, The New Yorker, which offers profiles of specific cases, supremecourt.gov for summaries of relevant court decisions, and memoirs such as Just Mercy. This issue is continually in flux. Pay attention to federal death row and whether any executions occur as committee approaches.

GLOSSARY

Furman v. Georgia – A 1972 Supreme Court case that ruled the death penalty’s application by states to be in violation of the Eighth Amendment. Lethal Injection – The primary way that executions are conducted today. Lethal injections typically involve injecting individuals with three drugs: an anesthetic to knock them out, a paralytic to keep them from writhing (solely for the benefit of onlookers), and a drug that triggers cardiac arrest. Sodium Thiopental – A rapidly acting general anesthetic that was often used to sedate prisoners during lethal injections. As of now, it is virtually inaccessible in the US and states have begun searching for alternative anesthetics. Midazolam – A less effective alternative to sodium thiopental that induces sleepiness but does not knock the subject out entirely. Tenth Amendment – The Tenth Amendment to the Constitution states: “The powers not delegated to the United States

by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Antiterrorism and Effective Death Penalty Act (AEDPA) – Passed in 1996, this bill streamlined the death penalty appeals process and allowed for executions to be used against terrorists who use weapons of mass destruction to kill or threaten Americans. Aggravating Factors – Factors that exacerbate a certain crime and thus make the death penalty more legally applicable for that specific case. These include recidivism, lack of remorse, committing a crime in front of a child. They are the opposite of mitigating factors, which would decrease the likelihood of a harsh sentence. Roper v. Simmons – This 2005 Supreme Court ruling deemed it unconstitutional under the Eighth Amendment to use the death penalty for a crime committed by a minor, concluding children are categorically less culpable than adults. Kennedy v. Louisiana – This 2008 ruling declared it unconstitutional to use capital punishment in any case that does not involve murder or crimes against the State. Conservatives Concerned about the Death Penalty – An organization of Republicans and Libertarians calling for a national re-examination of America’s system of capital punishment. Bucklew v. Precythe –A 2019 Supreme Court decision that ruled that a prisoner seeking an alternative form of execution must prove this requested method would cause less pain than the state- determined one.

BIBLIOGRAPHY

“5 Myths About the Death Penalty.” Death Penalty Focus, deathpenalty.org/facts/5-myths-death-penalty/.

“A Clear Scientific Consensus That the Death Penalty Does NOT Deter.” Amnesty International USA, 18 June 2009, www.amnestyusa.org/a-clear-scientific-consensus-that-the- death-penalty-does-not-deter/.

“Botched Executions.” Death Penalty Information Center, deathpenaltyinfo.org/executions/botched-executions.

Buchanan, and Vern. “H.R.99 - 116th Congress (2019-2020): Thin Blue Line Act.” Congress.gov, 3 Jan. 2019, www.congress.gov/bill/116th-congress/house-bill/99/.

“Death Penalty Cost.” Amnesty International USA, www.amnestyusa.org/issues/death-penalty/death-penalty- facts/death-penalty-cost/.

Espaillat, and Adriano. “H.R.4022 - 116th Congress (2019-2020): Federal Death Penalty Abolition Act of 2019.” Congress.gov, 15 Aug. 2019, www.congress.gov/bill/116th-congress/house- bill/4022?r=1.

Ford, Matt. “Can Europe End the Death Penalty in America?” The Atlantic, Atlantic Media Company, 19 Feb. 2014, www.theatlantic.com/international/archive/2014/02/can- europe-end-the-death-penalty-in-america/283790/.

“Furman v. Georgia, 408 U.S. 238 (1972).” Justia Law, supreme.justia.com/cases/federal/us/408/238/.

Grann, David. “Trial by Fire.” The New Yorker, www.newyorker.com/magazine/2009/09/07/trial-by-fire.

“Innocence.” Death Penalty Information Center, 23 Apr. 2019, deathpenaltyinfo.org/policy-issues/innocence.

Keller, and Fred. “H.R.3980 - 116th Congress (2019-2020): Eric's Law.” Congress.gov, 28 Aug. 2019, www.congress.gov/bill/116th-congress/house-bill/3980.

Kelly, William R. “States Should Ask, Is the Death Penalty Worth It?” AP NEWS, Associated Press, 6 Nov. 2018, apnews.com/8612ca4218904639b37bfd9af381a0d5.

McCord, Mary. “Bill Barr Twisted My Words in Dropping the Flynn Case. Here's the Truth.” The New York Times, The New York Times, 10 May 2020, www.nytimes.com/2020/05/10/opinion/bill-barr-michael- flynn.html.

“Methods of Execution.” Death Penalty Information Center, deathpenaltyinfo.org/executions/methods-of-execution.

“Michigan.” Death Penalty in Michigan, Death Penalty Information Center, 27 July 2015, deathpenaltyinfo.org/state-and-federal- info/state-by-state/michigan.

“Race and the Death Penalty: Capital Punishment in Context.” Race and the Death Penalty | Capital Punishment in Context, capitalpunishmentincontext.org/issues/race.

Segura, Liliana. “Ohio's Governor Stopped an Execution Over Fears It Would Feel Like Waterboarding.” The Intercept, 7 Feb. 2019, theintercept.com/2019/02/07/death-penalty-lethal- injection-midazolam-ohio/.

Simpson, Stephen. “Executions of Federal Death Row Inmates Set to Resume; Date Scheduled for Man Convicted of Killing Arkansas Couple, 8-Year-Old Girl.” Arkansas Online, 25 July 2019, www.arkansasonline.com/news/2019/jul/25/man- convicted-killing-arkansas-couple-8-year-old-g/.