Despite the fact that fewer than 120 people in the United States are sentenced to death every year, capital punishment (death penalty) still remains one of the most deeply debated and contested issues in criminal justice. To some scholars, especially those who are leery of an omnipotent government, state-sanctioned execution represents a fundamental infringement on constitutional rights where criminal justice officials are the principle actors in a theater of cruelty. Other academics, however, do not perceive that capital punishment, as it is currently practiced, poses a significant threat to either the civil liberties or the privacy interests of the majority of Americans. In fact, some scholars have even suggested that executing society’s worst offenders may actually preserve fundamental freedoms by reducing the population of habitual violent offenders. Perhaps this is why the majority of Americans support the practice of capital punishment, in spite of strong evidence suggesting that it is more costly to execute than to incarcerate an offender. This entry examines how states vary in their laws regarding capital punishment, the frequency with which the death penalty is carried out, the historical context of capital punishment in the United States and globally, and how the American public views capital punishment.
While there is considerable disagreement as to whether or not capital punishment erodes or protects civil liberties, both liberals and conservatives agree that the imposition of the death penalty is an extraordinarily rare phenomenon in the United States. In fact, less than 1% of individuals who commit homicide actually receive the death penalty. For example, in 2010, 14,748 persons were murdered nationwide, yet only 114 offenders were sentenced to death that year. Even in the rare cases in which criminal defendants are sentenced to death, the odds are actually quite high that they will die of natural causes in prison, as correctional officials tend to refrain from scheduling execution dates. For example, California, the state that has the largest death row population in the United States, rarely executes offenders. In 2015, there were nearly 750 people on death row in California, yet only 13 individuals had been executed since capital punishment was reinstated by the U.S. Supreme Court in 1976. This is not altogether unusual. In fact, many states, such as New Hampshire, Kansas, Wyoming, New Mexico, and Connecticut, do not administer the death penalty despite the fact that it is allowable by law. Perhaps this gives a sense of comfort to voters, who feel secure in knowing that they can impose the ultimate punishment without having to risk the guilt of possibly executing an innocent person.
There is, indeed, enormous variation across all 50 states and the federal government regarding the use of the death penalty. This is likely a reflection of the fundamental differences that citizens from state to state have regarding the role government should play in attempting to balance security with individual freedom. Michigan, in 1846, became the first state to abolish capital punishment. Interestingly, there is evidence that legislators in the state of Michigan may have been inspired to abolish the death penalty following a well-publicized incident in Canada where an innocent man was put to death. To some observers, it may be ironic that states such as Michigan (1846), Wisconsin (1853), and Maine (1887) actually led the abolitionist movement against the use of the death penalty in the 19th century. Even as recently as 1972, when the U.S. Supreme Court, in Furman v. Georgia, overturned the sentences of more than 600 death row inmates, officials in France guillotined two inmates who had murdered a nurse and a prison guard during their escape from Clairvaux Prison.
By 1973, the entire United Kingdom had officially abolished the death penalty. Several years prior to this, legislators in Northern Ireland were reluctant to follow the lead of England, Wales, and Scotland by halting executions. However, it is possible that legislators in Northern Ireland were encouraged not to allow the death penalty after the world watched the U.S. Supreme Court put a halt to capital punishment in the landmark 7–2 decision of Furman v. Georgia (1972) . This was a case in which all nine Supreme Court justices took the time to write a separate opinion, something that is extraordinarily rare according to legal experts. Even though in this case the death penalty itself was never declared unconstitutional per se, the Court ruled that it had been applied arbitrarily, with racial minorities often being the recipients of capital punishment. During this period in U.S. history, it is likely that capital punishment was, indeed, administered in a capricious fashion. According to the Death Penalty Information Center, 54% of all offenders executed from 1930 to 1976 were African Americans, despite African Americans constituting no more than 11% of the population during this time frame.
Immediately prior to Furman v. Georgia (1972) , and in the wake of the Civil Rights Movement and President Lyndon B. Johnson’s “War on Poverty,” the U.S. prison population began to decline by approximately 1% per year. In the early 1970s, there were only 96 convicts per 100,000 U.S. residents, a figure that prompted prominent prison scholars, such as Michel Foucault, Norval Morris, and David Rothman, to suggest that correctional institutions were in an inevitable state of decline. This, coupled with Furman v. Georgia, initially led many scholars to believe that the United States’ obsession with punishment was fading and that more diversified and humane instruments of social control would soon replace the death penalty. However, beginning in 1973, and around the demise of Keynesian economics, the U.S. imprisonment rate began to rapidly escalate. It was also during the same time that legislators began to craft laws in an attempt to reintroduce Americans to the death penalty. Only a few years later, the Supreme Court upheld the constitutionality of capital punishment in Gregg v. Georgia (1976) . Since then, opinion polls have reflected that Americans tend to support the death penalty. Many believe that capital punishment makes society a safer place, despite the fact that very little, if any, evidence exists that demonstrates that it deters would-be criminals.
In 2015, more than 2.4 million persons were incarcerated within correctional facilities across the United States. The United States’ criminal justice juggernaut consumes more than $200 billion a year, with the carceral function constituting more than one third of the price tag. The United States incarcerates more than 25% of the world’s prisoners, despite constituting only 5% of the world population. Most states in the United States have retained the death penalty, as Americans seem to place a high premium on punishment. Indeed, U.S. criminal justice officials are often able to shield themselves from criticism by arguing that by enacting and administering the death penalty they are merely carrying out the will of the people. They see themselves as public servants who are doing the voters’ bidding while still taking care to respect the due process rights of criminal defendants. While some critics argue that it is ironic that a democratic nation such as the United States still executes some of its own citizens, defenders of the death penalty nevertheless contend that this form of punishment is actually possible only because it reflects the will of the people and criminal justice officials are carrying out a democratic legal mandate. As long as capital punishment is approved of by most Americans and is not deemed to be either cruel or unusual by the U.S. Supreme Court, it is likely to remain in parts of the country.
While the death penalty certainly has its critics, some legal scholars argue that defendants are afforded many more procedural rights in a capital case than they would normally receive in an ordinary felony case. For this reason, the procedures employed during the adjudication of capital cases have been referred to as a form of “super due process.” As a result of Gregg v. Georgia (1976) , states now use what is referred to as a bifurcated trial. In bifurcated trials, there are two phases: The first phase determines a defendant’s guilt or innocence, and the second phase determines whether the defendant will receive death or imprisonment. During the penalty phase, jurors must carefully balance both aggravating and mitigating factors to ascertain whether or not to impose the ultimate penalty on someone who is found to be guilty of a capital offense.
Sentencing guidelines require jurors to weigh all variables prior to imposing a sentence of death. For example, if a defendant is believed to be immature or has no prior criminal record, this could be sufficient to encourage a jury to temper justice with mercy and not impose the death penalty. In addition, even if an individual is sentenced to death, his or her case is automatically reviewed by a state supreme court. Also, some jurisdictions have proportionality review, a process in which appellate courts seek to identify any disparities that may occur in sentencing individuals to death. Finally, in the unlikely event that an individual is sentenced to death, he or she has multiple opportunities to appeal this sentence. This is because capital punishment is regulated by federal law, which requires that criminal justice officials go to great lengths to ensure due process and follow well-established procedures.
Although capital punishment is rarely imposed in the United States, it is nevertheless the subject of much discussion and debate. The evidence suggests that the majority of Americans perceive that the death penalty makes society a safer place, and they are therefore tolerant of state-sanctioned executions.
Robert M. Worley
See also Amnesty International ; Bill of Rights ; Death Row ; Life Without Parole ; Punishment ; Supermax Prisons
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Bohm, Robert M. Capital Punishment’s Collateral Damage. Durham, NC: Carolina Academic Press, 2013.
Death Penalty Information Center. “Executions in the U.S. 1608–2002: The Espy File.” www.deathpenaltyinfo.org/executions-us-1608-2002-espy-file (Accessed November 2014).
Del Carmen, Rolando, et al. The Death Penalty: Constitutional Issues, Controversies, and Case Briefs (3rd ed.). New York, NY: Routledge, 2014.
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Furman v. Georgia, 408 U.S. 238 (1972).
Garland, David. Peculiar Institution: America’s Death Penalty in an Age of Abolition. Cambridge, MA: Belknap Press, 2010.
Gregg v. Georgia, 428 U.S. 153 (1976).