The Death Sentence in America

Abstract

The death sentence emerged as one of the traditional ways of punishing the worst forms of crime. The American criminal justice obtained the death sentence as part of the criminal justice system from the British Colonial masters.  Since then, various theories have emerged against and for the death penalty and how it is implemented and affects the criminal justice system.

Many of the landmark changes in the death penalty occurred in the 20th century and these changes affected the criminal justice system. In 1972, the Supreme Court temporarily suspended capital punishment that is done through the death penalty.  Claims that the penalty was imposed discriminately on racial grounds led to the moratorium on the death penalty in the heights of the abolishment of racial segregation supported the decision of the court. However, the sentence was re-introduced when the Supreme Court was satisfied that the penalty can be implemented without racial prejudice.

In the current American system, however, 31 states uphold the death sentence as part of the penalties in the criminal justice system. On the other hand, the death penalty is illegal in 19 States. On the one hand, there is a conflict on whether the death penalty deters crime. In any case, the criminal has already died if the death penalty is applied. On the other hand, however, there is an argument that some criminals cannot reform under any circumstance. Thus, they will always occasion harm on their colleagues in jail or while free. The modern era has seen the revolution of the death penalty with execution implemented in painless ways such as lethal injection, gas chambers, and other technological methods of execution.   Nevertheless, an ethical argument on the death sentence persists.

Outline

  • Abstract

It contains a brief description of the issues that will be covered in the paper

  • Annotated Bibliography

It mentions the sources that will be used in this paper and gives a short description of what every source explains that is related to the topic being discussed in the paper.

  • Historical information about the death penalty

This explains the changes that have occurred relating to the death penalty since it was introduced in the country until today.

  • Contemporary issues related to the death penalty

This explains about the current state of the death penalty in criminal justice system stating how the data of this penalty looks like in the country. It also outlines some of the trends that are evident in the issue of the death penalty.

  • Policy or legal implications of the death penalty

This will address how the issue of the death penalty has had an influence on the criminal and legal systems.

  • References

This section will outline all the sources used in the paper.

Annotated Bibliography

Bandes, S. A. (2018). All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty.

Post- Furman legal approaches aim at the reduction of jury or judges’ discretion in issuing death sentences. However, it does not address the discretion of the prosecutor or the police conducting the investigation. Thus, the process is already flawed, and prejudice exists in the administration of death penalties in the post-Furman era.

Hans, V. P., Blume, J. H., Eisenberg, T., Hritz, A. C., Johnson, S. L., Royer, C. E., & Wells, M. T. (2015). The Death Penalty: Should the Judge or the Jury Decide Who Dies?. Journal of Empirical Legal Studies, 12(1), 70-99.

The book reflects on the role of the judges and the jury in imposing the death penalty. The state of Delaware has shifted the responsibility of issuing the death penalty from the jury to the judges. The shift occurred from 1977 and ended before the turn of the millennium. It is evident that judges have issued more death sentences than the jury on crimes such as the stranger homicides. At the same time, it is apparent that the gender of the judge impacts on their probability of issuing death sentences. However, there has been no decline in crime with the increase of the death penalties in comparison to the 1990s statistics in the particular state of Delaware.

Shatz, S. F. (2017). The American Death Penalty: Past, Present, and Future.

The issue of discretion adversely affects the blacks. Thus, it is to reflect that the Furman v Georgian discriminatory approach remains unresolved. However, many American states have continued the administration of death sentence under the banner of protecting the society from non-reforming criminals. Nevertheless, the concerns of prejudice remain.

Richards, T. N., & Smith, M. D. (2015). Current issues and controversies in capital punishment. American journal of criminal justice, 40(1), 199-203.

Different factors impact on the jury’s option of issuing a death sentence. On the one hand, there emotional and personal perspective among the jury affects the probability of a death sentence in a case. Such personal and emotional factors influence the probability of a death sentence. In this respect, it is evident that the prosecution some unconscious bias exists in the sentencing process.

Hochkammer, W. O. (2017). The capital punishment controversy. In Capital Punishment (pp. 65-84). Routledge.

The deterrence controversy has emerged as a central issue in the debate about capital punishment. On the one hand, there are arguments that capital punishment cannot have a deterrent effect as the offender is already dead. On the other hand, however, there has been an argument on the need to protect the society from non-reformable criminals. The debate between abolitionists and the retentionists persists on the validity of the death penalty. However, the retentionists have an upper hand which explains why most states have operational death penalties in the United States.

Hurley, C. N. (2018). A Measured Approach to the Death Penalty.

The human rights issue emerges. On the one hand, there is an argument on the human right of the offender.  The challenge of the ethical aspect of effecting the death penalty appears to violate the need to uphold morality and fairness. At the same time, the state does not gain a thing out of the death of the offender. It appears as an anti-social approach.

Kastellec, J. P. (2016). Race, Context and Judging on the Courts of Appeals: Race-Based Panel Effects in Death Penalty Cases.

Personal discretion has emerged as a central aspect that has influenced the judges in the issuance of death sentences.  Cases of racial prejudice in death sentences are commonly based on statistics. Thus, it is apparent that it can lead to prejudicial administration of justice.

Beardsley, M., Kamin, S., Marceau, J., & Phillips, S. (2014). Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century. Denver. UL Rev., 92, 431.

The minority defendants encounter death penalty than the adults in South Colorado. Moreover, statistics reflect that there are many instances of the black persons being faced with the death penalty in comparison with their white counterparts. Such unconscious bias in the jury emerges as a major administrative challenge on death penalty issue.

Historical Information about the Death Penalty

There are crimes in America that are considered as grievous mistakes, and hence they are punishable by death. America was colonized by Britain, and they received their criminal justice system from their British colonizers. The criminal justice has been amended as it is not as it was during the colonial times and one idea that has evolved is the punishment by death.

The first person to be punished by death was Thomas Bird in 1790. He was punished by hanging having committed a crime of murder and piracy. The United States has introduced various ways in which the death sentence has been executed. These ways include hanging, lethal gas, electric chair, lethal injection, lethal gas, and firing squad (Dwankowski, 2012). The evolution has changed through the years, and these changes are explained below.

In 1972, the United States’ Supreme Court put the punishment by death for a hold before a different decision was made. As explained by Bandes (2018), there were claims that the sentence was biased on racial grounds and therefore the Supreme Court wanted the matter to be investigated. After the investigation, the findings were that there was not any racial prejudice in imposing the death penalty and therefore it was reinstated (Shatz, 2017).  Shatz goes on to explain that despite being reinstated by the Supreme Court, the issue of prejudice is still discussed where some people argue that the penalty is not fairly imposed with regard to racial grounds. After reinstating the penalty, Gary Gilmore was the first person to be executed. His execution was done by the firing squad in 1977 in Utah (Florshem, 2014). Some states such as Oklahoma adopted different means of execution which is lethal injection.

Changes in the death penalty also involve the crimes that are punishable by death. During the 1970s to the 1990s, the Supreme Court ruled that a death sentence could not be passed on some crimes (Garland, 2011). For example crimes of rape, crimes committed by mentally challenged people and juveniles were not punishable by death. As postulated by Richards and Smith (2015), passing a death sentence because of such crimes would be against the eight amendment of the constitution.

The issue about juveniles not being punished by death raised concern, and the decision was reviewed by the Supreme Court. In 1992, it was maintained that the death penalty could not be passed on people who are below eighteen years through the International Covenant on Civil and Political Rights article (Florshem, 2014). In 1996, the Anti-Terrorism and Effective Death Penalty Act was approved and the Act made it difficult for the people who had been convicted for murder to seek clemency. It also made it difficult for the for the Row inmates to have their conviction overturned.

By 2009, all the states in the United States that allow a death penalty had lethal injection as the sole method of execution. However, this method has developed issues over the period due to the shortage of drugs in the United States. There have also been problems with ethics and legalities of the method (Dwankowski, 2012). The execution is supposed to be painless, but some individuals have reported complaining of the pain before they pass on. This has brought the question of whether it is the best method to use. This issue is still being addressed to get an alternative to the lethal injection that is more human.

Contemporary Issues Related to the Death Penalty

Restrictions and methods used

The opinion on the death sentence has been different among the United States’ citizens where they argue about whether the penalty should be upheld or abolished (Hochkammer, 2017). However, in 2016, Oklahoma, California and Nebraska voters proved that majority of people were in support of the death penalty and they did this through a referendum voting. According to the CNN Library (2018), some states have done away with capital punishments and the states that uphold the death penalty have restricted the crimes that are punishable by death with most of them having treason and murder as the only crimes punishable by death. Thirty one states in the United States allow capital punishment while the rest of the nineteen states have made it illegal (Hans et.al, 2015). In 2000, the Supreme Court ruled that execution cannot be imposed on those people that are not mentally fit as this would be against the constitution where through the Eighth Amendment it does not approve the use of cruel and unusual punishment on people.

The judgment on the case of Roper V. Simmons made the executions of juveniles unconstitutional and the judgment was made in 2005. The 2000 and 2005 rulings therefore eliminated the possibility of juveniles and mentally disabled people being executed. The states that allow capital punishments use lethal injection as their way of execution but this method has been having issues due to the unavailability of the drugs used in the lethal injection (CNN Library, 2018). The unavailability has caused changes in the lethal injection. For instance, in 2009, the state of Ohio changed its method of lethal injection where instead of using three drugs like the other states, it started using one drug. One of the drugs used in the lethal injection known as pentobarbital is hard to obtain due to its unavailability and low supply in the market and hence it has been substituted with thiopental. Cases of the lethal injection ineffectiveness have come up due to instances where inmates administered with the injection have taken too long to die and this should not happen.

For example in 2014, the state of Ohio conducted an execution where the inmate, Dennis McGuire, was given the lethal injection and took roughly ten to thirteen before passing away and during this time he was seen gasping for air. In the state of Arizona, during the same year, an inmate known as Joseph Woods stayed for approximately two hours before he died after the injection. In April 2014, an IV was placed in the body of Clayton Lockett as a way to execute him and the report of the execution stated that it took about forty-three minutes for him to pass away. It is such instances that Prejean (2011), and other authors have discussed questioning the effectiveness of the lethal injection and whether the working of this method ensures that it does not cause suffering to the person being executed. This questioning means that research should be conducted to come up with a more humane and effective method.

Data on the executions made in the United States

Since the introduction of capital punishment in the United States until July 2017, two thousand eight hundred and seventeen people have been executed. Due to a Supreme Court ruling, the death penalty was suspended in 1972 and after a proper research on the matter, the court, in 1976, reinstated capital punishment. Since 1976 until 2017, one thousand four hundred and eighty-one people have been executed. Executions have varied in the years where in some years the executions have been higher. For example, the executions in 2017 were twenty three where this number had risen from 2016 which was twenty. In 2017, court rulings imposed death sentences on thirty-nine people. In 2018, the Death Penalty Information Center indicated that seven states in the United States have executed sixteen people (DPIC, 2018). Since 1988, the executions carried out by the federal government have been three, 2003 being the last year the federal government carried out an execution. Regarding gender, the number of execution carried out on women since the reinstatement of the death penalty has been sixteen. Before the execution of juveniles was made unconstitutional, execution of 22 juveniles had been done after the reinstatement of the penalty (DPIC, 2018). A law was passed that only the president can grant pardon for federal death row inmates. Clemency has been granted to 288 individuals since the reinstatement of capital punishment.

Trends evident in the death penalty

Some tendencies revolve around the matter of the death penalty. According to the DPIC (2018), the number of women executed is always lower than the number of men executed. People are changing their views on capital punishment and this is making states to eliminate the death penalty where mistakes that were formed punished with a death penalty are punished with life imprisonment without the option of parole. The use of capital punishment has also been restricted with many states leaving the offence of treason as the only mistake punishable by death. Beardsley, Kamin, Marceau and Phillips (2014), concluded from their study that there has been a reduction in the number of executions carried out in a year and the forecast is that the trend will continue. Cases of unavailability of drugs used in lethal injection have increased and due to this, changes are expected to occur in the method used in execution.

Policy Implications of the Death Penalty on the Criminal and Legal Systems

The issue of the death penalty has had policy implications in the legal and criminal systems, and the changes that have affected this issue have also affected these systems. There have been restrictions on the crimes that a death penalty can be imposed on a guilty person. This, therefore, means that apart from these crimes, the death penalty cannot be passed on a person guilty of any other crime. The states that allow the death penalty have reduced these crimes to treason and murder.

In 2005, the death penalty on juveniles was declared unconstitutional. This means that the criminal justice system had to adjust to this new policy. Van den Haag and Conrad (2013), explained that this meant that any juvenile that is found guilty of a crime cannot have the death penalty as their punishment. This is similar to people with mental health issues. If a person is not of sound mind, they cannot be penalized with a death penalty. This, therefore, requires that the justice system to examine a convict if they are of sound mind before a judgment of the crime committed is passed.

The advocators for human rights have also caused changes in the issue of the death penalty and hence have had an implication in the legal and justice system. The method of execution has evolved, and the human rights activists have been one of the causes of these evolvements. As outlined by Hurley (2018), these activists insist that the method of execution should be made more human meaning that it should be painless and the person undergoing the execution should not suffer when the exercise is being carried out. This has, therefore, made the justice system to research the best methods of execution while ensuring that the methods are human.

Conclusion

Conclusively, capital punishment in the United States has raised debates in the country about its necessity. Some states have conducted research through voting to find out the opinion of the citizens on the issue and this has made some states to abolish the penalty while some still uphold it. However, only nineteen states out of the fifty states have eliminated the death penalty. The thirty-one states that still hold the penalty have reduced the number of crimes punishable by this penalty with some only allowing people found guilty of treason to be punished by death. The effectiveness of the lethal injection has raised concerns. There have been instances where the lethal injection was administered, but the people took some time before they died making them suffer and human activists are against such incidences. It is such incidences and the unavailability of the drugs that is pushing the justice system to explore on other methods of execution. However, due to the unavailability of these drugs, some states are going back to the older methods of execution ignoring the human activists’ ideas of implementing more humane methods of execution.

References

Bandes, S. A. (2018). All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty.

Beardsley, M., Kamin, S., Marceau, J., & Phillips, S. (2014). Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century. Denver. UL Rev., 92, 431.

CNN Library. (2018). Death Penalty Fast Facts. Retrieved from: https://edition.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html

Death Penalty Information Center (DPIC). (2018). Executions in the United States. Retrieved from:  https://deathpenaltyinfo.org/executions-united-states

Dwankowski, C. (2012). The Death Penalty in the USA – A Short History. NDLA. Retrieved from: https://ndla.no/en/node/103196?fag=71082

Florshem, L. (2014). The Evolution of the Death Penalty in One Map. The New Republic. Retrieved from: https://newrepublic.com/article/117114/death-penalty-evolution-map-how-executions-have-changed-states

Garland, D. (2011). Modes of Capital Punishment: The Death Penalty in Historical Perspective. In America’s Death Penalty: Between Past and Present (pp. 30-71). NYU Press.

Hans, V. P., Blume, J. H., Eisenberg, T., Hritz, A. C., Johnson, S. L., Royer, C. E., & Wells, M. T. (2015). The Death Penalty: Should the Judge or the Jury Decide Who Dies?. Journal of Empirical Legal Studies, 12(1), 70-99.

Hochkammer, W. O. (2017). The capital punishment controversy. In Capital Punishment (pp. 65-84). Routledge.

Hurley, C. N. (2018). A Measured Approach to the Death Penalty.

Kastellec, J. P. (2016). Race, Context and Judging on the Courts of Appeals: Race-Based Panel Effects in Death Penalty Cases.

Prejean, H. (2011). Dead man walking: An eyewitness account of the death penalty in the United States. Vintage.

Richards, T. N., & Smith, M. D. (2015). Current issues and controversies in capital punishment. American journal of criminal justice, 40(1), 199-203.

Shatz, S. F. (2017). The American Death Penalty: Past, Present, and Future.

Van den Haag, E., & Conrad, J. P. (2013). The death penalty: A debate. Springer Science & Business Media.

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