Perhaps the most famous instance of capital punishment in western antiquity was of the philosopher Socrates in 399 BCE. Accused of “corrupting the youth” after a lifetime of teaching, Socrates was condemned to death by drinking hemlock by one of the most democratic states that ever existed (Linder, 2002). While the execution was within the laws of that state in that time, this case highlights well the ethical issues surrounding capital punishment that are still hotly debated today (Nails, 2009).
The death penalty, also called capital punishment, refers to a sentence of death pronounced by a legal body under which the individual is subject. In legal theory, capital punishment can be considered legal or ethical for capital offenses. Capital offenses are simply crimes which are punishable by death (ALM Media, 2011).
The first recorded capital punishment laws are dated to the Code of King Hamamurabi in the 1700s BCE. Early death sentences employed brutal means, including crucifixion, drowning, beating to death, burning alive, impalement, boiling, burning at the stake, hanging, beheading, and drawing and quartering (Michigan, 2004). Drawing and quartering was a particularly elaborate and gruesome method, intended to produce fear in traitors, for whom it was reserved. Convicts would be dragged through the street by a horse, hanged until almost dead, then castrated and disemboweled, then beheaded, then pulled apart into four pieces by horses. This practice was not legally eradicated until 1867 (New World Encyclopedia, 2011)
Half of the countries in the world currently have laws abolishing the death penalty. 25% of the countries in the world maintain the death penalty, but have not executed anyone for over 10 years. 21% have an active death penalty, and 4% allow the death penalty only under rare extenuating circumstances (Contributers, 2011). Some of the most controversial death sentences are given to persons under the age of 18 (Contributers, 2011). Since 1990, only Iran has executed more children than the United States (Amnesty International, 2011).
In 2007, the UN general assembly accepted a moratorium on the death penalty, pending abolishment. However many nations did not follow this moratorium, including the United States (UN News Service, 2007).
History of the Death Penalty in the United States
George Kendall was the first known person to be executed in the United States. Accused of mutiny, spreading discord, and spying for the Spanish at the British colony of Jamestown, he was shot by a firing squad in either December of 1607 or early 1608 (Green, 2005).
In England during the seventeenth and eighteenth centuries, rape, treason, murder, robbery, burglary, arson, theft, and counterfeiting were considered capital crimes and were punishable by death. These capital crimes were adopted by the American colonies and accepted as worthy of capital punishment until the late eighteenth century. The common view of the time was that the death penalty should be applied when only the most severe crimes were committed. It was not taken lightly by colonial Americans. The severity of crimes was organized into a hierarchy which is still in place today. The main difference between the death penalty prior to the eighteenth century and the modern death penalty is that religious beliefs allowed Colonial Americans to identify the death penalty as an acceptable punishment for a wider range of crimes (Banner, 2002)..
In 1642 Massachusetts deemed robbery, on the third offense, a capital crime. By 1711 Massachusetts lowered the crime threshold to two counts of robbery and in 1761 one count of robbery was considered a capital crime. New Hampshire was also part of this trend. In Pennsylvania, prior to 1781, only murder was considered a capital crime. The imperial government became involved and put pressure on Pennsylvania to expand the scope of capital crime to include rape, highway robbery, manslaughter, witchcraft, arson, sodomy, and maiming. In the late eighteenth century the list of capital crimes grew to include things like unlawfully living on Indian land, counterfeiting, and breaking out of prison (Banner, 2002).
Though crimes were constantly being added to the list of capital crimes, many colonies did not implement the death penalty for these crimes for many years. For example, Pennsylvania waited 18 years after burglary was considered a capital crime to actually hang someone for it. However, by the end of the colonial period, the number of people put to death for capital crimes had skyrocketed. Racism became formally incorporated into American capital statutes when New York adopted a law in 1712 that only applied to black individuals. This law stated that black slaves who tried to commit murder or rape could be punished by death. Colonies, particularly Southern colonies, continued to add more and more capital crimes that only applied to black individuals in hopes that they could better manage the slave workforce (Banner, 2002).
Death Penalty Reform in the United States
Numerous court decisions have had a reformative role upon capital punishment and the definition of capital offenses. Over time there have been several trends. Capital punishment crimes have been refined to only the most severe. Life imprisonment has replaced the death penalty in many parts of the country and for many crimes which were previously reserved for the death penalty (Michigan, 2004). Execution methods have become somewhat more “humane” over time, with an increasing number of lethal injections (Springston, 2009).
In the landmark US Supreme Court case Furman v. Georgia (1972), the majority of death penalty laws in the United States were invalidated. The eighth amendment banning cruel and unusual punishment was found to be at odds with the capital punishment. All but two supreme court opinions concluded the there were no situations in which capital punishment would be constitutional. As a result, nearly all of the death row inmates in the US were given lifetime sentences instead. It was five years before another person was executed in the US. Since then, many hundreds of people have been executed (Green, 2005). Three of those people were hung, 155 electrocuted, 11 were gassed, and two were shot by firing squad (Springston, 2009).
Death penalty cases in the United States are notorious for being incorrect or overturned. Since 1976 in the United States, more than one hundred people have been executed who were later found to be not guilty (Pew Trusts, 2010). Currently there are over 3200 inmates on death row (Contributers, 2011). If history is any predictor of the future, as many as 2000 of those inmates may have their sentences overturned (Pew Trusts, 2010).
Policy Analysis
In analyzing the death penalty policy, this section examines four main factors that occur as part of its implementation: recent trends and demographic factors, how equitable it is, the economic costs, and the pros and cons of the policy.
Although the death penalty has typically been reserved for convicted murderers, public opinion supporting capital punishment has waxed and waned over the past 70 years, hitting a low of 42 percent in 1966 and a high of 80 percent in 1994 (Mancini & Mears, 2010). In the past decade, the level of support has hovered at approximately 65 percent (Saad, 2008). In the 1990’s, support for the death penalty reached an all time high, largely because of the intense media coverage of violent crimes and a false sense that the crime rate was rapidly increasing (Ladd, 1997). Other factors that may have contributed to this change in public attitude towards the death penalty are the public’s fear of crime, the public’s belief that the death penalty is a means of deterring crime, the victim’s desire for retribution and the public’s concern with crime control (Wallace, 1989).
The two main groups of people who support the death penalty are those who believe that capital punishment is a deterrent to crime and those who think that there is a need for a public vengeance for victims. Research has indicated that of those who favor the death penalty, only a majority of people do so primarily because they anticipate that capital punishment will deter criminals (Wallace, 1989). Furthermore, research has also shown that law enforcement officials do not consider the death penalty an effective deterrent to crime, and ranked the death penalty as the least cost effective way of reducing violent crimes (Worsnop, 1995).
A large amount of attention has also been focused on social and demographic divides in support of the death penalty. Most studies find a race effect, and Whites, relative to other racial and ethnic groups, reporting greater levels of support for capital punishment of homicide offenders (Messner, Baumer, & Rosenfeld, 2006). Males, too , typically report greater levels of support for such punishment as compared to females (Applegate, Cullen, & Fisher). Lower educational attainment also has been found to be associated with grater support for the death penalty (Fox, Radelet, & Bonsteel, 1991). Finally, because retribution and deterrence feature as prominent themes in some religious doctrines, research also indicates that conservative or fundamentalist Protestant membership is associated with this “ultimate” sanction (Britt, 1998).
Following the social divides, geography also plays a role not only in public support, but also with executions. Eighty two percent of the 1132 executions that occurred in the United States between 1976 and 2008 took place in ten sates, all from the South (Hull, 2010). Among the counties in the United States, only one-third have ever sentenced someone to death, and among this one-third, only three percent, 92 out of 3,066 counties, account for half the people eventually executed (Hull, 2010). Almost all are in the South. In addition, there are differences within states on the percentage of people being condemned to death, following rural and urban lines. For example, in Georgia, four people are condemned to death per 1000 homicides in Fulton County (Atlanta), compared to 33 in rural Muscogee County, a difference of more than 70 percent. Texas, however, is the leader in executions. Since 1977 it has administered over 37 percent of all executions in the United States. Of the 84 that took place in 2008, 37 occurred in the Lobe Star State. When George Bush was governor, Texas also executed roughly 25 people a year, with a grand total of 40 in 2000.
In analyzing this policy, it is also clear that race and gender are factors, and that the policy is not equitable. The Black population in the United States is over represented in the death machine from indictment to execution. A large body of research supports the fact that Black defendants receive death sentences at far greater rates than White defendants (Baldus & Woodworth, 1998; Bowers, 1984). In addition, African Americans have been put to death more than White Americans for the same crime (Gottesman & Brown, 1999). Bright (1995), states that although African Americans make up only 12 percent of the population, they have been victims in about half of the total homicides in the country in the last 25 years. In some states in the South, African Americans are the victims of over 60 percent of the murders. Yet, 85 percent of the cases in which the death penalty has been carried out have involved White victims. In addition, White defendants are rarely executed when their victims are Black (Deiter, 1998).
Another factor that should be considered is gender. According to recent research, women have accounted for only 3 percent of the total confirmed executions in the USA since 1932, and only 10 female offenders have been executed in the past 25 years (Death Penalty Information Center, 2004). In contrast, 83 male offenders were executed in the USA in the year 2000. The major reason for this difference in numbers is simple: historically only a small percentage of women have committed violent crimes in the USA (Gottesman & Brown, 1999).
Consequently, the likelihood that the fate of death penalty defendants from minority groups is decided by either juries of their peers or actual representatives is highly suspect in death penalty cases (Shroeder, Chaisson, & Pogue, 2005). The racial make up of juries is often not representative of the communities in which the defendant resides or with which they identify (Shroeder, Chaisson, & Pogue, 2005). Research suggests that White jurors are more likely to convict Black defendants (Sweeney & Haney, 1992), often appear to be unable or unwilling to consider the defendant’s background and upbringing, and are more likely to impose the death penalty.
In terms of equity, innocent people have also been executed. Since 1976, when the death penalty was reinstated, at least eight, and possibly as many as 23 innocent people have been executed for crimes they did not commit (Hull, 2010). Many more innocent people have come within a hair’s breath of execution. Since 1976, at least 176 people have been released from death row after exculpatory evidence surfaced. This is roughly one exoneration for every nine executions (Death Penalty Information Center, 204).
Economically, the death penalty is escaping the decisive cost benefit analysis to which every other program is being put to in modern times. Every cost study in the U.S shows that the death penalty is far more expensive than a system where the maximum penalty is life in prison (Deiter, 1999). Capital trials are longer and more expensive at every step than other murder trials. Pre-trial motions, expert witness investigations, jury selection, and the necessity of two trials—one on guilt and one on sentencing, make capital cases extremely costly, even before the appeal process begins (Deiter, 1999). Guilty please are almost unheard of when the punishment is death, and in addition, many of these trials result in life sentencing, rather than the death penalty, so the state pays the costs of an expensive trial and the cost of life imprisonment.
Although there is no national figure for the cost of the death penalty, every state is dependent on that state’s laws, pay scales, and the extent to which it uses the death penalty. The high costs to the state however reflect the following reality: for a single death penalty trial, the state may pay $1 million more for a non-death penalty trial. But only one in every three capital trials may result in a death sentence, so the true cost of that death sentence is $3 million. Further, only one on ten of the death sentences handed down may result in execution. Hence, the cost to that sate to reach that one execution is $30 million (Deiter, 1999). This figure may also be very conservative. For example, in California, the California Commission on the Fair Administration of Justice released a report in 2008, stating that the state was spending $137 million per year on the death penalty. The Commission estimated that sentencing the same inmates to life without parole would only cost 1.5 million a year. Since the number of executions in California has averaged less than one every two years since the death penalty was reinstated in 1977, the cost for each execution is over $250 million (CCFAJ, 2008).
At the local level, local governments often bear the brunt of capital punishment costs and are particularly burdened. While state and national politicians promote the death penalty, the county government is typically responsible for the costs of prosecution and the costs of the criminal trial. In some cases, the county is also responsible for the costs of defending the indigent (Deiter, 1999). Since counties are also the primary deliverers of local health and human services in the public sector, hard choices have to be made among the demands of providing essential services, and the vigorous pursuit of a few death penalty cases (Deiter, 1999).
For taxpayers in states that employ the death penalty, the costs come at a high price. For example, in Texas, a death penalty case costs taxpayers an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years (Deiter, 1999). In Florida, each execution is costing the state 3.2 million. Finally, in California, one report estimated that the state could save $90 million each year by abolishing the capital punishment (CCFAJ, 2008).
In examining the pros and cons of the death penalty, it has already been mentioned that the death penalty does not act as a deterrent to crime. The main argument for it is the need for a public vengeance for victims. Public officials use the argument for the death penalty to be tough on crime. Candidates use the death penalty as a facile solution to crime which distinguishes themselves by the toughness of their position rather than the effectiveness (Deiter, 1999).
On the other hand, there are many reasons why the death penalty policy should be re-examined both at the federal and state levels. It is costly, not equitable for the individuals sentenced to death, and innocent individuals have been executed as a result.
Conclusion
The death penalty policy, based on the analysis, needs to be reconsidered for a variety of reasons. One of the primary reasons is that it is not effective, and from a cost/benefit analysis, fails to prove that it is a better alternative than life imprisonment. Politicians choose style over substance in their support for the death penalty. Campaign rhetoric becomes legislative policy with no analysis of whether the expense will produce any good for the people (Deiter, 1999). The death penalty, in short, has not been examined from a cost/benefit analysis as other policies have. In addition, it is unethical, and discriminates against minorities and the poor, who are the majority of people waiting execution. Proponents of the policy may try to cut down on the costs of the death penalty by curtailing the appeals process, and limiting trial expenses. However, the first interferes with a critical part of the death penalty process and could result in the execution of innocent defendants, and the second could end up costing more than the current system (Deiter, 1999). Although many people may believe that appeals process is wasteful, it actually does not constitute most of the death penalty’s costs. In a cost study conducted by Duke University, trial costs in North Carolina made up over four times the appeals costs for each death sentenced imposed (Hull, 2010).
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