Tóth J. Zoltán

The Present Status of Capital Punishment

 

 

 

 

Present day there is a dominant tendency existing across the world in the field of penal law: abolitionism. Abolitionists aimed and aim at the cessation of the practice of capital punishment, and thanks to them more and more countries cancel this sanction from their criminal justice system. Hitherto 88 states have abolished the death penalty, and 109 have not, but of these latter states 11 maintain it only for extraordinary crimes (e.g. treason or other crimes against the state, war crimes, crimes against humanity, military and wartime offenses etc.) and other 29 can be regarded as de facto abolitionist states which means that nobody has been executed in these jurisdictions at least for ten years.[1] However, there are 69, mainly African and Asian countries which still can execute their citizens if they commit serious ordinary crimes, whilst abolitionism affected mostly in Europe, Oceania (including Australia) and America.

 

In Europe there are only four states in which the death penalty has not been superseded, nevertheless, Latvia and Albania reserved it only for extra ordinem crimes, namely, criminal offenses committed during times of war or domestic emergency, and it still remained in force altogether in the Russian Federation and Belarus. In addition, of these two countries Russia is abolitionist in practice, because President Boris Yeltsin declared a moratorium in 1996, and since then there has been only one exceptional execution in Chechnya in 1999. The only state in the European continent that actually uses capital punishment not only for uncommon offenses but for ”simple” murders as well is Belarus, although even it amended the Criminal Code in 2005 with a provision declaring the temporariness and exceptionality of capital punishment.

 

In America 22 states[2] maintain the death penalty and 14 have totally abolished it. In the North American subcontinent Canada annulled capital punishment in 1976 for common crimes and in 1998 for uncommon offenses. Of the Caribbean and Central American states Costa Rica has already abolished it in 1877, followed by Panama in 1903, Honduras in 1956, the Dominican Republic in 1966, Nicaragua in 1979, Haiti in 1987, Bermuda in 2000 and Mexico in 2005.[3] In South America Venezuela in 1863, Ecuador in 1906, Uruguay in 1907,[4] Colombia in 1910 and Paraguay in 1992 terminated all their death penalty laws, moreover, all of them prohibited the use of this sanction in their constitutions. In Oceania all of the 14 independent states have abolished this punishment either in law or in practice. Ten countries (the Solomon Islands and Tuvalu in 1978, Kiribati in 1979, Vanuatu in 1980, Australia in 1985,[5] the Marshall Islands and Micronesia in 1986, New Zealand in 1989, Palau in 1994 and Samoa in 2004) have totally liquidated it, and four other states (Nauru, Papua New Guinea, Fiji and Tonga) ceased it de facto.[6] The most countries which retain this penalty even recently are in Africa and Asia. Hitherto not more than thirteen African and five Asian states abolished it for every crime: Cape Verde, Mozambique, Namibia, São Tomé and Príncipe, Angola, Guinea-Bissau, Seychelles, Djibouti, Mauritius, the Republic of South Africa, Ivory Coast, Senegal, Liberia; Cambodia, Nepal, Turkmenistan, Bhutan and the Philippines.[7]

 

According to the Amnesty International estimation, last year, in 2005 at least 5 186 people received a death sentence and a minimum of 2 148 executions were carried out. Most of them (1 770) were realized in China, followed by Iran (94) Saudi Arabia (86) and, interestingly, the United States (60). Since the USA is not simply one of those democratic countries which still maintain the capital punishment for certain crimes, but it is the most important as well; since in America the death penalty is frequently imposed and carried out; and because there are a whale of executions in every year in the United States; therefore all the problems and doubts of the death penalty can be fairly demonstrated by the example of this country. Hereinafter I will examine the present state of this legal institution in the USA, particularly considering the issues of the executional methods, the discrimination, the crimes punishable by death, the innocence and the financial aspects.

 

As for the present state of capital punishment in the United States, it has been imposed and carried out more and more often since the reinstatement with Gregg[8] in 1976. In these 30 years more than 1000 executions were realized; only in 2005 60 were performed. While the number of executions actually realized until 1999 and that of the death row prisoners until 2000 continuously increased, the number of murders and nonnegligent manslaughters was floating during the same period. In 1976 there were 420 persons under sentence of death and there was only one execution, while the number of death row prisoners has been increasing to 3 601 by the year of 2000 and the executions virtually performed have been rising to 98 by 1999. In these decades the number of crimes resulting in someone’s death was fluctuating. In 1976 this number was 18 780, in 1980 it was 23 040. After then it reached the next nadir in 1984 by 18 692 and the following zenith eventuated in 1991 by 24 703 life-taking offenses. This number has sunk to 15 522 by 1999 and since then it can be asserted to be stable. Moreover if we add that in the number of executions a persistent decline can be seen since 1930 until 1967, and then a moratorium came on carrying out of death penalties, followed by the reinstating and permeation of  imposing and administering of capital punishments, while the number of capital offenses sometimes grew, sometimes dropped, it can be stated that the changing of the latter data is unrelated to the changing of the former ones.[9] This means at the same time that there is no statistical evidence for the existence of the deterrent effect of capital punishment in virtue of the capital offender and the execution database of the United States of America.

 

As regards, in addition, the methods of execution used in deed in the states of the USA, these are administered nowadays chiefly by lethal injection; the last shooting was that of John Albert Taylor, a 36-year-old white male, on 27th January, 1996 in Utah;[10] the last hanging was that of Bill Bailey, a 49-year-old white man, two days before John Albert Taylor’s shooting, that is, on 25th January, 1996 in Delaware;[11] the last execution carried out in a gas chamber was realized on a Walter LaGrand, a 37-year-old foreigner, on 3rd March, 1999 in Arizona; and the last execution by electric chair was that of Brandon Hedrick, a 27-year-old white male, amazingly very recently, on 20th July, 2006 in Virginia. Otherwise, since the restoration of capital punishment up to now, punctually until 24th August, 2006, there were altogether 1042 executions and of these executions 873 were carried out by lethal injection, 153 by electrocution,[12] 11 by asphyxiation, 3 by hanging and 2 by firing squad; and the most executions, exactly 374, were performed, by the way, in Texas.[13] 3 executions were under federal jurisdiction,[14] 22 executed were juveniles at the time of their crimes and 123 were volunteers. The oldest man was a John Nixon, who was 77 years old when his execution was administered. 57.10 % (595) of the executed persons were white, 33.97 % (354) were black and 8.93 % (93) were other.[15] Curiously, only 11 person (1.08 %) to be executed were female,[16] albeit one-seventh of the capital crimes in the United States are committed by women. The murderers to be sentenced to death, anyway, kill typically white people: of the 1042 person 835 (80.1 %) were executed because of killing white men or women.[17]

 

At the present time, otherwise, there are 36 states[18] in which capital punishment is maintained.[19] In these states the only, or at least the main, executional method is lethal injection. 35 states authorize this mean as a way of administering death penalty (18 of them regulate it as the only method,[20] 8, 4, 3 and 3 of them have besides it electrocution,[21] asphyxiation,[22] hanging[23] and shooting[24]),[25] [26] and Nebraska is the only state in which the executions are carried out not by lethal injection but only by electric chair.[27]

 

Now concerning the death row prisoners, a mild decline can be seen in the past few years. At present, precisely at the end of the year of 2005, there were only 3 373 inmates on death row,[28] while this number in 2000 was yet 3 601. The average time on death row is more than 10 years, but there are prisoners who have to wait decades until the execution or (and it also frequently occurs) until their natural death. That is true that a lot of time is needed for controlling the correctness and justness of death verdict, and is also needed to provide opportunities for the defendant for submitting to clemency plea, applying for commutation of the death sentence or petitioning a habeas corpus writ, but, at the same time, the lengthy period on death row which must be spent by the inmate in a small cell, separating from the other people, can cause very serious and irreparable psychological damages. Even if a prisoner could be released from death row, he would never be able to get over those years that he spent in the jail awaiting for the execution. (At present time, by the way, California has the largest death row population with 652 inmates, followed by Texas and Florida.)[29] Of these persons 1527 (45.3 %) are white, 1411 (41.9 %) are black and 432 (12.8 %) are of some other race.

 

If we, on the grounds of these data, want to examine whether there is discrimination against non-white defendants in the course of imposing capital punishment, we have to review the statistics on the races of perpetrators of capital crimes, too.[30] As for it, in, for example, 2002 there were 7005 murders and nonnegligent manslaughters that involved a single victim and a single offender. Of these 7005 perpetrators 3 386 (48.4 %) were black, 3 309 (47.2 %) were white, 180 were of other races and 130 were unknown. It can be seen, that the ratio of black offenders of life-threatening crimes (48.4 %) is higher than the ratio of black death row prisoners (41.9 %) and the proportion of the executed black persons since 1976 (34,0 %). In addition, it can also be seen that the ratio of the similar crimes of white abettors (47.2 %) is about the same as the proportion of the white death row inmates (45.3 %) and that the proportion thereof is lower than the ratio of those whites executed since 1976 (57.1 %).  In other words, there is not any systematical discrimination against colored people, because the probability of a death sentence is more feasible in that case where the offender is a white person and, on the contrary, the death verdict is less plausible if the defendant is a colored person.

 

Concerning, furthermore, the victim-offender relationship, we can also conclude that the American legal system, leastways in capital cases, is not racially biased. A white capital offender, namely, has typically white victims, and a black criminal, however, murders another black persons. The victims of murders and nonnegligent manslaughters committed by white criminals are mostly whites (the 3 309 white offenders had 3 000 white victims /90.7 %/ and only 227 black ones/6.9 %/)[31] and, inversely, the victims thereof perpetrated by colored people are, chiefly, also blacks (the 3 386 black abettors killed 2 853 another black persons /84.3 %/ and only 483 white ones /14.3 %/).[32] Consequently, we can assert that these statistical data show that, at least at present, there is no institutional discrimination against non-white people in the American criminal justice system in capital cases.[33]

 

In the third part of this paper, let us have a peep at the crimes punishable by death, the issue of the innocence and the economic matters. As for the first one, all the states that authorize capital punishment regulate it for only life-threatening crimes[34] what means that in absence of lethal consequences imposing this kind of sanction is legally forbidden. This is not the case in federal jurisdiction: death penalty is applicable for such federal crimes as, for example, espionage,[35] treason,[36] trafficking in large quantities of drugs,[37] or ”attempting, authorizing or advising the killing of any officer, juror or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs”.[38]

 

As for the second theme, we must profess that there is a great danger in association with capital cases, that is, the hazard of ”Justizmord”.[39] ”To err is human” and this statement is true for everybody without exception. Even a judge can be in error, and if this is the case, an innocent person should be put to death, moreover by the state itself what is impermissible in a civilized society. Though even in case of incarceration it is impossible to give back for the convict those years spent in a prison, but at least from the time of release can he or she continue his or her life. In this respect the death penalty is an odd sanction since after the execution there cannot be any chance for reparations; that is why the risk of a false death sentence is the greatest danger that can be imaginable at all.

 

Now we have a lot of evidences (mainly DNA patterns) that innocent persons were convicted of capital crimes and sentenced to death, whilst the real abettors were at large. In virtue of these proofs, since 1973 123 inmates were freed from their death cells and exonerated with apparent evidence of their innocence. Nevertheless, abolitionists are sure that there were far more false convictions than 123, but the other ones will never be turn out because the authorities are disinterested in bringing to light their former flaws. Though retentionists or revivalists claim that in modern times, because of the developed evidentiary means, the rigorous evidentiary rules and the strict procedural safeguards, Justizmord could not happen, we cannot be clearly sure of it. Especially in the United States where there is a huge pressure on the police and the prosecution can occur a fatal error when, particularly in case of a brutal murder, because of the expectation of the public for a quick achievement the police try to arrest someone and prosecutors try to bring him to court even if the evidences are unsatisfactory. And as the judges, at least in the states, are elected just like Congress representatives, that means, that they must stand the public demands or else they would not be re-elected in the next local elections, they will make efforts to condemn the defendant or to have him convicted by the jury.

 

However, not only a judge or a prosecutor can err but the witnesses and the experts as well. For example in the 80’s the courts in Texas regularly asked for a James Grigson to hand down a mental health expert opinion, albeit the American Psychiatric Association considered him incompetent to act as an expert in forensic medicine. It also frequently occurs that the prosecution offers a plea bargain for other criminals being kept confined in a common cell with a capital defendant in order that they should give evidence against him. If the plea bargain contains the possibility of parole in for their testimony it is common that they lie so as to be freed from the jail. It can also happen that the advocate is incapable of efficiently defending the accused. It has already several times eventuated that an assigned counsel was so uninterested in the suit that he was sleeping like a top during all the trial. Finally, the jurors also can be so biased that they are unable to bring in an impartial verdict. In such circumstances, therefore, it is no wonder that in the United States so many wrongful convictions have happened and, presumably, even at the present time happen.

 

And, last but not least, as for the financial facts about the capital punishment we can assert that the existence of death penalty in a criminal justice system induces higher costs than this kind of sanction would not exist in the state at all. This is because those criminal procedures where even the most severe sanction can be applied need more and superior procedural guarantees, even in those capital cases (and in many instances this is the case) where the defendant eventually will not be sentenced to death. This means that a particular capital case ending with a death sentence is, generally, cheaper than the same case ending with an incarceration for life, but maintaining a system in which the death verdict is a real potential is costlier than administering a criminal justice system without the possibility of death. At first glance this is surprising, but, taking the measure of it, it is admittable.

 

For example in a capital case more trial days are needed, more witnesses and more experts need to be called in evidence or the same witness needs to be heard more times than in other cases. Appeals and extraordinary remedies are almost certain and the courts of first instance have to re-trial these cases more often if the sentence is death. Furthermore, the detention of a death row inmate is more expensive than the restraint of a ”simple” prisoner, moreover the time that has to be spent in the jail awaiting for the execution is frequently hardly less than the term of a life imprisonment. Finally, postconviction acquittals are more common in capital cases than in other ones and in these instances the state has to pay a great amount of money as compensation for the ex-defendant. Even prior to the trial a lot of costs emerge. In this period of the criminal process the defense counsel has to seek and find the circumstances that can be utilized in favour of the accused. These investigation expenditures on the one hand include the costs of the visiting at the family members, neighbours, former teachers and collaborators of the defendant in order that they would attest to the offender’s good features as witnesses and on the other hand these contain the costs of the psychiatrists, psychologists or other mental health experts mandated by the lawyer to certify mitigating factors that could reason the deed of the crime (e.g. orphanage, child sexual abuse, parental maltreatment etc.).

 

The trial itself is also considerably costly. It begins with the so-called ”voir dire”, that is, the selection of the would-be jurors. This process in a capital case is much more complicated than in a noncapital one because the winnowing is more thorough, the defense counsel and the prosecutor challenge[40] the potential members of the jury more frequently and the questioning is held not jointly (like in other cases) but individually. During the trial the hearings of the witnesses and the experts are also more exhaustive and are needed to be repeated more often. In addition the capital trial includes two periods: the guilt phase and the penalty phase and in both of them there is collecting evidence. Finally, the automatic appeal process makes a capital case lengthier and hence more expensive as compared with a noncapital one.

 

Verifying those mentioned above there are a lot of surveys which prove that if the prosecution suggests other sentence than death the procedure will pass off faster and it will be cheaper than if the motion were a death sentence. For example according to the Sacramento Bee newspaper California had one billion dollars expenditure between 1993-1997 in connection with death penalty, albeit in these years there were only two executions. In Florida the executions actually carried out cost 24 million dollars on the average.[41] According to the New York State Defender’s Association a capital case would cost about one and a half million dollars if the capital punishment were re-introduced which amount is twice greater than the cost of a present noncapital murder case.[42] Or the Palm Beach Post estimated that the expenditures of the Florida death penalty system exceeded over 50 million dollars per year the costs of sentencing every capital offender to life without parole.[43] In brief it can be claimed that a system of capital punishment is obviously much more expensive than a system of life imprisonment.

 

Summing up what has been said so far we can set out that the use of capital punishment, as compared with other developed democracies to authorize death penalty, is very frequent in the United States. Unfortunately, in America not only the instance can occur that an innocent person is sentenced to death and executed, but the suffering and pain felt by the convicted during the execution is fairly often as well. In the past few decades the Supreme Court has made great efforts to humanize the practice of capital punishment, for example it has declared the execution of the mentally ill (in Ford v. Wainwright in 1986),[44] the mentally disabled (in Atkins v. Virginia in 2002)[45] and the juvenile offenders (in Roper v. Simmons in 2005)[46] unconstitutional, but, apparently, much yet remains to be done. Hopefully, the criminal justice system in the United States of America will be perceivably more humane, decent and impartial in the near future than it is at the present time, and then the USA can join those countries which have even at present a humanized legal system.



[1] Source: Amnesty International: http://web.amnesty.org/pages/deathpenalty-countries-eng.

[2] These are Antigua and Barbuda, Argentina, the Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Cuba, Dominica, El Salvador, Grenada, Guatemala, Guyana, Jamaica, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago and the United States (of which more anon). However, in Belize, Grenada, Guyana and Suriname this sanction is not used in practice, while in Argentina, Bolivia, Brazil, Chile, El Salvador and Peru it is in effect only for extraordinary crimes.

[3] The former six states declared this sanction unconstitutional, the latter two, however, ceased it by statutes of Parliament.

[4] For the first time Uruguay had already abolished capital punishment in 1807 for common offenses, but after then it was re-introduced.

[5] The abolition of the death penalty happened in the different states in different years: Queensland ceased it in 1922, Tasmania in 1968, the Commonwealth (for the federal crimes) and the Northern Territory in 1973, Victoria in 1975, South Australia in 1976, the Australian Capital Territory in 1983, Western Australia in 1984 and New South Wales in 1985.

[6] In Nauru this sanction was never in force, while in Papua New Guinea the last execution was carried out in 1950, in Fiji in 1964 and in Tonga in 1982.

[7] The Philippines is so far the last country that abolished capital punishment: this happened in June of 2006.

[8] Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242), collectively referred to as Gregg v. Georgia 428 U.S. 153 (1976)

[9] Source: U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, 2004 (Washington, DC: USGPO, 2005). See in: http://www.albany.edu/sourcebook/pdf/t6792004.pdf.

[10] The next to last execution by firing squad was also in Utah in 1977, when the above-mentioned volunteer death row prisoner, Gary Mark Gilmore was executed. (Interestingly, John Albert Taylor was also a volunteer.) Anyway, since the restoration of death penalty there were only these two executions in the United States which were carried out by shooting, and both of them were performed in Utah and based on free option.

[11] Since 1976 there were only three inmates to be executed by hanging: Westley Allan Dodd (executed on 5th January, 1993 in Washington), Charles Campbell (executed on 27th May, 1994 also in Washington) and Bill Bailey (executed on 25th January, 1996 in Delaware).

[12] This means that of the 1042 executions 1026 were carried out either by lethal injection or by electric chair.

[13] The ”second-placed” in this list is Virginia with 97 executions, and the ”third-placed” is Oklahoma with 81.

[14] One of them was that of Timothy McVeigh, the Oklahoma bomber, who had killed 168 person.

[15] Asian, Latino, Native American or unknown.

[16] Two of them, namely Wanda Jean Allen (executed on 11th January, 2001 in Oklahoma) and Francis Newton (executed on 14th September, 2005 in Texas) were black.

[17] 18 of them had not only white, but non-white victim(s) as well.

[18] On 24th June, 2004 the New York Supreme Court and on 17th December, 2004 the Kansas Supreme Court held capital punishment statutes unconstitutional. (Hence in these two states the death penalty exist formally, but not, leastways at present, de facto. Therefore if New York and Kansas is reckoned in the death penalty states, the sum of them will actually be 38.) In addition, the New Jersey Congress on 11th January, 2006 declared a one-year moratorium on executions.

[19] Of them New Hampshire is a so-called ”de facto abolitionist state” that means that in New Hampshire there have never been so far imposed or carried out any death penalties.

[20] Colorado, Connecticut, Georgia, Illinois, Indiana, Louisiana, Maryland, Mississippi, Montana, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Texas.

[21] Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee, Virginia.

[22] Arizona, California, Missouri, Wyoming.

[23] Delaware, New Hampshire (see footnote 19.) and Washington.

[24] Idaho, Oklahoma, Utah.

[25] This, in the aggregate, is 36; it can be because in Oklahoma there are, besides lethal injection, both electrocution and firing squad as well.

[26] The cause of having several executional methods is, typically, either that the state provide for the right for the condemned to choose from them or that the state authorizes the second method if the first one would have ever been held unconstitutional. (But, of course, there are other reasons, too.)

[27] So there are 9 states to regulate the electrocution as a way of the executions.

[28] Now, in August of 2006 this number is 3 370.

[29] In Texas there are 404 persons on death row, and in Florida there are 392.

[30] The source of subsequent statistical data is the U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, 2002 (Washington, DC: USGPO, 2003), p. 22., Table 2.8. (Murders and nonnegligent manslaughters known to police by race and sex of victim and offender, United States, 2002). In: (http://www.fbi.gov/ucr/cius_02/xl/02tbl2-8.xls)

[31] 82 were other or unknown.

[32] 51 victims of black perpetrators were other or unknown.

[33] We can draw, by the way, the same conclusion from the 2003 and 2004 statistical tables. In 2003, for example, of the 11 169 known murder offenders 5 729 were blacks (51.3 %) and 5 132 were whites (45.9 %), and in 2004 of the 11 218 known murderers 5 608 were blacks (50.0 %) and 5 339 were whites (47.6 %). (Source: U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, 2003, Table 2.6. (Murder Offenders by Age, Sex and Race, 2003) (http://www.fbi.gov/filelink.html?file=/ucr/cius_03/xl/03tbl2-6.xls) and U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, 2004, Table 2.5. (Murder Offenders by Age, Sex and Race, 2004) (http://www.fbi.gov/ucr/cius_04/documents/CIUS_2004_Section2.pdf)

[34] Capital murder, first-degree murder, aggravated murder, intentional murder, criminal homicide or other violent crimes resulting in death.

[35] 18 U.S.C. 794

[36] 18 U.S.C. 2381

[37] 18 U.S.C. 3591(b)

[38] 8 U.S.C. 3591(b)(2)

[39]Justizmord” occurs if somebody is sentenced to death by mistake.

[40] There are an unlimited number of possibilities for dismissing a prospective juror for a certain motivated reason, for example because he or she is racially biased, (challenge for cause) and a limited number of opportunities for disqualifying him or her without special reason (peremptory challenge).

[41] See: Pap, András László: Pénz, politika, jogbiztonság – halálbüntetés az Egyesült Államokban. (Money, Politics and Legal Certainty – Capital Punishment in the United States). In: Belügyi Szemle, 6/2001., pp. 77-78.

[42] See: Paternoster, Raymond: Capital Punishment in America. Lexington Books, New York, 1991, p. 201.

[43] http://www.deathpenaltyinfo.org/FactSheet.pdf

[44] Ford v. Wainwright, 477 U.S. 399 (1986)

[45] Atkins v. Virginia 536 U.S. 304 (2002)

[46] Roper v. Simmons 543 U.S. 551 (2005)