A Statistical Portrait of the Death Penalty Frank R. Baumgartner and students in POLI 490, Fall 2015 Draft as of December 5, 2015 Chapters 1 Death Penalty Constitutionality, Kaneesha Johnson 2 The Capital Process, Emily Vaughn and Kaneesha Johnson 3 Characteristics of those Executed, Clarke Whitehead, Emma Johnson, and Elizabeth Grady 4 Characteristics of the Victims, Emily Williams and Colin Wilson 5 What Crimes Are Eligible For Capital Punishment, Arvind Krishnamurthy and Liz Schlemmer 6 Is the Death Penalty Reserved for the “Worst-of-the-Worst”? Sarah Tondreau 7 Which Jurisdictions Execute and Which Don’t? Kelsey Britton 8 How Long Does it Take? Chris Armistead 9 Death Sentence Reversals, Emily Vaughn and Kaneesha Johnson 10 How Often Are People Exonerated from Death Row? Sarah Tondreau, Lanie Phillips, and Candice Holmquist 11 Methods of Execution, Emma Johnson, Elizabeth Grady, Clarke Whitehead, and Ty Tran 12 Lethal Injection and Its Complications, Emma Johnson, Elizabeth Grady, Clarke Whitehead, and Ty Tran 13 Stays of Execution, Danielle Buso, Chandler Mason, Emily Vaughn, Colin Wilson 14 How Many Inmates Just Give Up? Marty Davidson and Caroline Lim 15 Mental Health, Betsy Neill, Chris Armistead, Caroline Lim, Lanie Phillips, Chandler Mason 16 Veterans on Death Row, Danielle Buso 17 Public Opinion, Caroline Lim, Emily Williams 18 Why Does the Death Penalty Cost So Much? Dean Murphy 19 The Decline of the Death Penalty, Kaneesha Johnson 20 Has The Modern Death Penalty Solved the Constitutional Issues Rejected by the US Supreme Court in Furman? Arvind Krishnamurthy and Brandon Morrissey Statistical Portrait December 5, 2015 1 Death Penalty Constitutionality Kaneesha Johnson The 1960s marked the beginning of multiple challenges brought against the constitutionality of capital punishment in the United States. Previously, the fifth, eighth, and fourteenth amendments have been interpreted as the death penalty being a form of valid constitutional punishment. In Trop v Dulles (1958) the Supreme Court questioned the extent to which the state can punish a person based on his or her crimes. The Court held that stripping someone of his or her citizenship was a punishment that outweighed the crime of desertion, and was so was considered “cruel and unusual”. Chief Justice Earl Warren, in his majority opinion, stated, “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles (1958) 356 U.S. 86). It was not long before these themes emerged in the debate of the death penalty. In the late 1960s the court began to modify the nature in which the death penalty was administered. The first of the two cases that arose surrounding the procedural constitutionality of the death penalty was U.S. v. Jackson (390 U.S. 570), where the Supreme Court heard the arguments for the provision of the death penalty from a federal kidnapping statute only from the recommendation of a jury. The court found this unconstitutional due to encouragement of the 2 Statistical Portrait December 5, 2015 defendants to waive their right to a jury trial to ensure that they would not receive a death sentence1. The second case was Witherspoon v. Illinois (391 U.S. 510), which concerned an Illinois statute that provides grounds for dismissal for any juror with “conscientious scruples” against capital punishment. The Court held that a jurors “conscientious scruples” against capital punishment was in violation of the Sixth Amendment’s guarantee of an “impartial jury” and the Fourteenth Amendments guarantee of due process. Furman v. Georgia (1972) The issue of the arbitrary and capricious use of the death penalty was presented to the court four years later in the landmark decision of Furman v. Georgia (1972 408 U.S. 238). Furman was burglarizing a home when a family member discovered him. In an attempt to flee, Furman tripped and fell, during which the gun he was carrying discarded and killed a resident of the home. He was convicted of murder and sentenced to death. (describe why he was appealing) The court held, in a 5-4 decision in favor of Furman, that the Georgia death penalty statute, which gave jury’s complete discretion of imposing the death penalty, was “cruel and unusual” and therefore in violation of the Eighth Amendment. The decisions put forth by Supreme Court Justices in Furman are mostly directed to the procedural elements of capital punishment. The decision in Furman ruled that all existing forms of the death penalty were unconstitutional, thus placing a temporary hold on all death sentences across the United States. The Furman decision also established safeguards for states to follow in order to have a death 1 http://deathpenaltycurriculum.org/student/c/about/history/history-5.htm 3 Statistical Portrait December 5, 2015 penalty. Following this decision, 35 states changed the procedures of capital punishment to be in line with those safeguards, some of who imposed mandatory death sentences for eligible crimes (see Woodson v. North Carolina and Roberts v. Louisiana). In over two hundred pages of concurrence and dissents, the Justices highlighted their views on the controversial subject. The major themes in the opinions given by the justices centered around the unconstitutionality of the death penalty due to capriciousness, inhuman nature, arbitrariness, lack of deterrence, the rejection of retribution by American society, and the excessive costs of capital punishment. Only Justice Thurgood Marshall and Justice William Brennan believed that the death penalty should be unconstitutional in all instances, which is further highlighted in the later decision of Gregg v. Georgia (1976). The main themes that the justices highlighted in their concerns of the constitutionality of the death penalty fall under five main themes; capriciousness, the inhumane nature, lack of deterrence, the question of retribution, and the biased nature of sentencing. Arbitrary and Capriciousness Perhaps the most important issues highlighted in Furman is the capricious and arbitrary nature in which the death penalty was being imposed. All five Justices voting in support of Furman found the death penalty to be capricious in its current form. Justice Douglass, in his concurrence, highlighted that the death penalty as unusual because it “discriminates against him by reason of his race, religion, wealth, social position, [and] class, [and] if it imposed under a procedure that gives room for the play of such prejudices” (Furman v. Georgia, 242). 4 Statistical Portrait December 5, 2015 The death penalty is arbitrary for many reasons. One reason highlighted by Justice Brennan is its application not determined by the extremity of the offence, but thee is a strong probability that it is inflicted arbitrarily (Furman v. Georgia 295, 305) Inhumane Nature Another major concern in the Furman majority opinion was the inhumane nature in which the death penalty was imposed. In his opinion, Brennan established a four-pronged test for whether or not a case is constitutional (what is this test?). The principles are to determine whether or not a punishment, “comports with human dignity” (305). Further, Justice Brennan highlighted that “if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes” (282) Deterrence The three Justices, who voiced opinions against the deterrent effect of capital punishment, including White, Marshall, and Brennan, found that there “is no reason to believe the assumption that the current way the death penalty is administered is a superior or more effective deterrent to long-term imprisonment” (Furman v. Georgia 302,303). There have since been numerous studies on the deterrent effect of the death penalty on murder rates in the United States. In 2012, the National Research Council of the National Academies published a study that reviewed over three decades of research and concluded that those studies that claimed a deterrent effect were fundamentally flawed (Nagin and Pepper, 5 Statistical Portrait December 5, 2015 2012). The committee further recommended that those studies should not be used to inform the deliberations in the judgment of the effects of the death penalty. Retribution Retribution, the idea that punishment should be inflicted on someone as vengeance for a criminal act, was also considered in the Furman case. Three of the concurring Justices found that retribution should not be used for support of capital punishment. In his opinion, Justice Brennan highlighted, “Society rejects the death penalty to the point that it serves no purpose. An examination of history of the American practice of punishing criminals by death is almost total rejected by contemporary society” (Furman v. Georgia, 305). Figure 1.1 Summaries of Majority Justices Reasons for Deeming Capital Punishment Unconstitutional Brennan Stewart White Marshall Douglas Capriciousness Racial Bias No Deterrence Cruel/inhumane Retribution Gregg v. Georgia (1972) Four years following the decision in Furman v. Georgia, the courts were faced with a case that could reinstate the death penalty. Gregg v. Georgia held that capital punishment did not violate the eighth and fourteenth amendment, provided that there are sufficient safe guards put into place to ensure that the sentencing authority had adequate information and guidance in reaching its decision. 6 Statistical Portrait December 5, 2015 Following the decision set forth in Furman, the main concerns from the justices was that the current form of the death penalty was arbitrary and capricious in its application. The Georgia legislature revised their death penalty statute so that no person could be found guilty and sentenced to death without the discovery of certain aggravating factors; this narrowed the class of murderers that the death penalty could be given to.