The death penalty, also known as capital punishment, is a government-imposed sanction by which a person is executed for committing an illegal offense. The United States is the only country in the Western world to retain this form of punishment. Consequently, it is the subject of much controversy. China, Iran, Saudi Arabia, Iraq, and the United States are responsible for the majority of the world’s executions. Most countries have abolished the death penalty.
This article discusses key statistics surrounding the death penalty, major legal rulings relating to capital punishment, the capital trial process, capital jury decision-making, the psychological impact of imprisonment on death row, and wrongful convictions.
Methods of Execution
The most common international methods of execution are electrocution, lethal injection, the gas chamber, the firing squad, and hanging. Other methods include shooting, beheading, stoning, and falling from a lethal height.
In the United States, lethal injection is the primary method of execution for all states that retain the death penalty. Alternative methods include electrocution, the gas chamber, the firing squad, and hanging.
Offenses Punishable by Execution
In the United States, the death penalty is almost exclusively reserved for the first-degree murder crime. Some states have other capital offenses, such as treason, aggravated kidnapping, drug trafficking, aircraft hijacking, and espionage. However, as of 2017, no inmates are on death row for such crimes.
In like fashion, the federal government authorizes the death penalty for espionage; treason; trafficking large quantities of drugs; and attempting, authorizing, or advising the killing of any officer, juror, or witness in cases involving a continuous criminal enterprise, regardless of whether or not the killing actually occurs. However, as of 2017, no prisoners are on death row for such offenses.
Death Penalty in the United States
As of 2017, 31 states and the federal government had the death penalty. There were approximately 2,800 prisoners on death rows across the country. California, Florida, Texas, and Alabama had the largest death row populations. The death penalty is arbitrarily applied. Specifically, it is more likely to be sought, and obtained, in cases involving defendants who are male, Black, and economically disadvantaged.
Executions in the United States
Nearly 1,500 prisoners have been executed in the United States since 1976. Executions reached an all-time high in 1999, when 98 death row inmates were executed. The number of executions has fallen consistently since that year.
Region
The southern region of the United States is responsible for over 80% of the nation’s executions. Texas, Oklahoma, Virginia, and Florida have executed the most inmates in the United States.
Gender
Over 99% of the executed death row prisoners were men. Only 16 women have been executed between 1976 and 2017.
Race
Statistically, more Caucasian death row inmates have been executed. However, when compared to Black and Hispanic prisoners, Black death row prisoners who kill White victims were nearly 10 times more likely to be executed than White death row prisoners convicted of killing Black victims.
Average Time Spent on Death Row
The average time spent on death rows across the United States has steadily increased since the 1970s. In 2017, death row prisoners spend approximately 16 years on death row before execution, exoneration, or commutation of their sentences to life imprisonment.
Aging Death Row Population
The death row population in the United States has aged significantly. The number of death row inmates 65 years and over has quadrupled in recent years. Although some prisoners are on death row because they committed offenses late in life, the lengthy appellate process is primarily responsible for the aging of prisoners under the sentence of death.
Death Row Phenomenon and Death Row Syndrome
The living conditions on death rows across the United States have been the subject of sharp debate. Called the death row phenomenon, inmates are forced to endure a bleak, hopeless environment for years, if not decades, living with uncertainty regarding when—or if—they will ever be executed.
Prisoners on death row are kept in solitary confinement for over 23 hours per day inside small, windowless cells. They are allowed outside recreation a few days per week. However, this time consists of exercise alone inside a concrete or wired enclosure. Any time death row inmates are allowed out of their cells, they are handcuffed and shackled. Sometimes black boxes made of hard plastic that offer additional restriction of movement are placed over their handcuffs. Death row inmates also lack basic comforts such as climate control, regular access to reading material, and contact with loved ones. The living conditions on death row can cause death row syndrome, or depression, anxiety, and psychosis so severe that it can cause inmates to become suicidal or forgo their appeals.
Major U.S. Supreme Court Rulings
In the 1960s, the U.S. Supreme Court began adjusting the way the death penalty was implemented. In the 2000s, the Court narrowed the range of offenses for which people were eligible to be executed. This resulted in a series of rulings that impacted the way capital defendants were sentenced.
Witherspoon v. Illinois
In 1968, the Court held that jurors could be excluded from capital jury service if they could never impose a death sentence. However, merely being opposed to the death penalty was not sufficient to excuse a juror for cause.
Furman v. Georgia
In 1972, the Court ruled that the death penalty was cruel and unusual punishment due to its arbitrary application. As a result, the death penalty was unconstitutional and commuted all death row prisoners’ sentences to life imprisonment.
Gregg v. Georgia
In 1976, the Court reversed its position, holding that the death penalty did not violate the Eighth Amendment prohibition against cruel and unusual punishment. The ruling also provided three procedural reforms by bifurcating capital trials into verdict and penalty phases, initiating automatic appellate reviews for defendants under the sentence of death, and beginning proportionality reviews on the premise that the death penalty is reserved for only the worst of the worst offenses.
Wainwright v. Witt
In 1985, the Court redefined the standard for death qualification by broadening the definition of excludable jurors. Specifically, in order to be death-qualified (eligible to sit on a capital jury), a person’s beliefs about the death penalty cannot be so strong that they would prevent or substantially impair his or her ability to render an impartial decision.
Lockhart v. McCree
In 1986, the American Psychological Association submitted an amicus brief to the Court, summarizing the body of research that suggested the process of death qualification resulted in jurors who were prone to convict and sentence the defendant to death. However, the Court held that the process did not violate defendants’ Sixth and Fourteenth Amendment rights and deemed death qualification to be constitutional.
Atkins v. Virginia
In this 2002 case, individuals with intellectual disabilities were prohibited from facing execution. However, they are still eligible to serve sentences of life imprisonment without the possibility of parole.
Roper v. Simmons
In 2005, the Court excluded juveniles from facing the death penalty. However, they were still eligible to serve sentences of life imprisonment without the possibility of parole.
Uttecht v. Brown
In 2007, the Court again narrowed the pool of death-qualified jurors by ruling that a venireperson, or prospective juror, could be excluded for cause if his or her beliefs about the death penalty are unclear. In addition, a juror could be excluded from capital jury service if the individual cannot consider both legal penalties (either the death penalty or life in prison without the possibility of parole) as appropriate forms of punishment.
Hall v. Florida
In 2014, the Court concluded that solely using a defendant’s intelligence quotient score to render a determination of intellectual disability was fundamentally flawed due to the error inherent in any measurement. Consequently, the Court ruled that evidence of adaptive functioning should be considered when rendering a decision regarding the defendant’s intellectual disability.
Attitudes Toward the Death Penalty
Although a majority of Americans are in favor of capital punishment, this support dropped consistently since the mid-1990s. Those who support it tend to do so because they focus on retribution. People who are opposed to the death penalty tend to cite the chance of executing an innocent person, lack of deterrence to crime, cost, and arbitrary application as the most common reasons for their beliefs.
Death Qualification
Death qualification is the part of jury selection during which prospective jurors are questioned regarding their beliefs about the death penalty. Although the theoretical goal of death qualification is to seat an impartial jury that is comprised of jurors who are able to consider both the death penalty and life in prison without the possibility of parole as legitimate forms of punishment, in reality, this is not what occurs. Rather, the process of death qualification systematically excludes more prospective jurors who are opposed to the death penalty than those who feel that the death penalty is the only appropriate sanction for the offense of first-degree murder. As a result, the remaining jurors tend to be demographically, dispositionally, attitudinally, and behaviorally homogeneous, resulting in a panel that is pro-prosecution and anti-due process.
Demographic Differences
Death-qualified jurors are more likely than jurors who are not death-qualified to be Caucasian and male. They are also more likely to be middle class and high school educated.
Dispositional Differences
Death-qualified jurors are more disposed than their excludable counterparts to have a low need for cognition, meaning that they do not tend to engage in effortful cognitive activities. Death-qualified jurors are also more likely to hold a high belief in a just world, which is the cognitive bias that a person’s actions are inherently inclined to bring appropriate consequences, with good behaviors being rewarded and bad behaviors being punished. They are more prone to have an internal locus of control or believe that they are in control of the events affecting their lives. Death-qualified jurors are more likely to be legal authoritarians, believing that individual freedom is subordinate to the power of the government.
Attitudinal Differences
Death-qualified jurors tend to endorse aggravating circumstances and dismiss mitigating circumstances. They are more likely than jurors who are not death-qualified to support the death penalty as it relates to mentally ill, juvenile, elderly, and physically disabled defendants. Death- qualified jurors are also more disposed to believe in eyewitness identification and junk science. They are also less likely to support the insanity defense.
Behavioral Differences
When compared to their excludable counterparts, death-qualified jurors are more likely to be pro-conviction and pro-death. Specifically, they are more likely to find defendants guilty. Death-qualified jurors are also more prone to vote in favor of the death sentence.
Process Effects
The process of death qualification is also responsible for the biasing effects inherent in this portion of jury selection. During death qualification, venirepersons are repeatedly questioned regarding their beliefs about the death penalty. This can occur over hours, days, or weeks. The process is done either individually or in small or large groups. It can also occur in a sequestered or public manner. In essence, the potential panel is discussing the punishment long before it is relevant. This brings their focus off the presumption of innocence and onto post-conviction events. The lengthy and repetitive nature of the process is desensitizing, causing the significance of the decision to vote on whether someone lives or dies to lose its impact. Potential jurors are asked to publicly state their attitudes about the death penalty, which can enhance their commitment to a particular position, thus making a later change of opinion more difficult.
Aggravating and Mitigating Circumstances
Aggravating circumstances are reasons to impose the death penalty. Aggravators must be proven beyond a reasonable doubt and are limited by statute. Ultimately, the judge determines which arguments the jury will hear. Although each state has different aggravating circumstances, there is a tremendous overlap. Aggravators can include the crime being cold, calculated, and premeditated; the offense being especially heinous, atrocious, or cruel; the capital defendant’s future dangerousness; and the victim being aged under 12 years.
Mitigating circumstances are reasons to impose a sentence of less than death, which is usually life imprisonment without the possibility of parole. Mitigators must be proven by the preponderance of the evidence and are unlimited in nature. Ultimately, the judge determines which arguments the jury will hear, although the rules of evidence are more lenient than with aggravating circumstances. Each state has different mitigating circumstances listed as examples in their respective statutes. However, there is a significant overlap between statutes, and all states allow additional mitigating circumstances to be presented in court. Mitigators can include no significant history of prior criminal history, an offense committed while the defendant was under the influence of an extreme mental or emotional disturbance, the age of the defendant at the time of the crime, and any other factors in the defendant’s background that would mitigate against the imposition of the death penalty.
Capital Jury Decision-Making
Capital juries have the formidable responsibility of determining the life or death of another human being. As a result, capital jury decision-making is a complex process that is impacted by a wide variety of factors.
Unanimity
In all states that retain the death penalty, the 12-person capital jury is required to make a unanimous decision in the verdict (guilt) phase. In 2017, a unanimous decision is required in the penalty (sentencing) phase in all but one state. Specifically, only Alabama requires a supermajority (10–2 vote) to impose the death penalty.
Unanimous juries are more likely to have robust deliberations, jurors expressing confidence in their verdicts, and feel that justice was administered. The unanimity requirement increases the length of deliberations and decreases death sentences.
Instructional Incomprehension
Each state and the federal government have different capital jury instructions. Although there can be some differences depending on the jurisdiction, all capital jury instructions are complicated. As a result, they are frequently misunderstood, and misapplied, by capital jurors. The lack of comprehension appears to be differential in nature. Specifically, capital jurors appear to be more confused about mitigating circumstances than aggravating circumstances. This misunderstanding can lead capital jurors to incorrectly categorize mitigators as aggravators. This incomprehension also has a racial component. Caucasian capital jurors are more likely to sentence Black defendants to death when there is a general lack of understanding regarding jury instructions.
Instructional understanding is significantly enhanced when psycholinguistically improved instructions are utilized. A few states have attempted to modify their jury instructions to enhance comprehension.
Capital Pretrial Publicity
Most capital cases receive a significant amount of pretrial publicity. An analysis of the pretrial publicity associated with criminal cases has demonstrated that it is overwhelmingly pro-prosecution. This is likely due to the fact that media sources tend to be law enforcement and state attorneys’ offices.
The media’s goal is to engage readers. When covering a capital defendant’s case, this is primarily accomplished through sensationalistic, overly simplistic stories designed to shock and horrify. The capital defendant is often portrayed as all bad, without any redeeming qualities. The victim is portrayed as all good, with only positive attributes. Unfortunately, neither of the aforementioned is an accurate portrayal of the complex dynamics that are inherent in every capital case.
The capital defendant is often described in derogatory, subhuman terms. The media often accomplish this by giving the defendant a nickname more appropriate for a horror movie. News stories also tend to focus on aggravating factors, such as defendant’s prior criminal history and offense-specific details. A confession, if provided, is often recounted in detail. The crime scene, described as graphically as possible, is frequently a front-page news. Even innocuous events such as a capital defendant asserting his or her Fifth Amendment right against self-incrimination are reported in an unfavorable light, such as “refusing to cooperate with law enforcement.”
As a result, prospective jurors who have been exposed to pretrial publicity are biased against the defendant before they walk into the courthouse. This knowledge will have a significant effect on any capital trial because people are unable to force themselves to forget or ignore what they have learned. Consequently, judicial admonitions for venirepersons to put aside their preexisting knowledge about the case are completely ineffective. Rather, the only solutions to counteracting exposure to pretrial publicity are change of venue (moving the trial to another jurisdiction), importing the jury (bringing in jurors from another jurisdiction), and thorough, comprehensive voir dire (jury selection) that includes pretrial surveys and individual, sequestered questioning of venirepersons.
Innocence and the Death Penalty
In the United States, over 150 people have been exonerated after receiving sentences condemning them to death. The most common causes of wrongful convictions are police and prosecution misconduct, eyewitness misidentification, false confessions, junk science, unreliable informant testimony, and ineffective assistance of counsel.
References:
- Blume, J. H. (2008). An overview of significant findings from the Capital Jury Project and other empirical studies of the death penalty relevant to jury selection, presentation of evidence, and jury instructions in capital cases. Unpublished manuscript, Cornell Law School, Ithaca, NY.
- Butler, B. (2008). Caveats of the death-qualified jury: Ways capital defense attorneys can use psycholegal research to their advantage. The Jury Expert, 20(1), 10–22.
- Haney, C. (1984). Examining death qualification: Further analysis of the process effect. Law and Human Behavior, 8(1–2), 133–151.
- Nemeth, C. (1977). Interactions between jurors as a function of majority v. unanimity decision rules. Journal of Applied Social Psychology, 7(1), 38–56.
- Smith, A. E. (2008). Not “waiving” but drowning: The anatomy of death row syndrome and volunteering for execution. Boston University Public Interest Law Journal, 17, 237–254.
- Smith, A. E., & Haney, C. (2011). Getting to the point: Attempting to improve juror comprehension of capital penalty phase instructions. Law and Human Behavior, 35(5), 339–350.
Websites
- Death Penalty Information Center. https://deathpenaltyinfo.org/
Court Cases
- Atkins v. Virginia, 536 U.S. 304 (2002)
- Furman v. Georgia, 408 U.S. 238 (1972)
- Gregg v. Georgia, 428 U.S. 153 (1976)
- Hall v. Florida, 572 U.S. ___ (2014)
- Lockhart v. McCree, 476 U.S. 162 (1986)
- Roper v. Simmons, 543 U.S. 551 (2005)
- Uttecht v. Brown, 551 U.S. 1 (2007)
- Wainwright v. Witt, 469 U.S. 412 (1985)
- Witherspoon v. Illinois, 391 U.S. 510 (1968)