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Since our nation's founding, the government -- colonial, federal and
state -- has punished murder and, until recent years, rape with the
ultimate sanction: death.
More than 13,000 people have been legally executed since colonial
times, most of them in the early 20th century. By the 1930s, as many
as 150 people were executed each year. However, public outrage and
legal challenges caused the practice to wane. By 1967, capital
punishment had virtually halted in the United States, pending the
outcome of several court challenges.
In 1972, in _Furman v. Georgia_, the Supreme Court invalidated
hundreds of scheduled executions, declaring that then existing state
laws were applied in an "arbitrary and capricious" manner and, thus,
violated the Eighth Amendment's prohibition against cruel and unusual
punishment, and the Fourteenth Amendment's guarantees of equal
protection of the laws and due process. But in 1976, in _Gregg v.
Georgia_, the Court resuscitated the death penalty: It ruled that the
penalty "does not invariably violate the Constitution" if
administered in a manner designed to guard against arbitrariness and
discrimination. Several states promptly passed or reenacted capital
Thirty-seven states now have laws authorizing the death penalty, as
does the military. A dozen states in the Middle West and Northeast
have abolished capital punishment, two in the last century (Michigan
in 1847, Minnesota in 1853). Alaska and Hawaii have never had the
death penalty. Most executions have taken place in the states of the
More than 2,000 people are on "death row" today. Virtually all are
poor, a significant number are mentally retarded or otherwise
mentally disabled, more than 40 percent are African American, and a
disproportionate number are Native American, Latino, or Asian.
The ACLU believes that, in all circumstances the death penalty is
unconstitutional under the Eighth Amendment, and that its
discriminatory application violates the Fourteenth Amendment.
Here are the ACLU's answers to some questions frequently raised by
the public about capital punishment.
** Doesn't the death penalty deter crime, especially murder?
No, there is no credible evidence that the death penalty deters
crime. States that have death penalty laws do not have lower crime
rates or murder rates than states without such laws. And states that
have abolished capital punishment, or instituted it, show no
significant changes in either crime or murder rates.
Claims that each execution deters a certain number of murders have
been discredited by social science research. The death penalty has
no deterrent effect on most murders because people commit murders
largely in the heat of passion and/or under the influence of alcohol
or drugs, giving little thought to the possible consequences of their
acts. The few murderers who plan their crimes beforehand--for
example, professional executioners--intend and expect to avoid
punishment altogether by not getting caught. Some self-destructive
individuals may even hope they will be caught and executed.
Death penalty laws falsely convince the public that government has
taken effective measures to combat crime and homicide. In reality,
such laws do nothing to protect us or our communities from the acts
of dangerous criminals.
** Don't murderers _deserve_ to die?
Certainly, in general, the punishment should fit the crime. But in
civilized society, we reject the "eye for an eye" principle of
literally doing to criminals what they do to their victims
The penalty for rape cannot be rape, or for arson, the burning down
of the arsonist's house. We should not, therefore, punish the
murderer with death. When the government metes out vengeance
disguised as justice, it becomes complicit with killers in devaluing
** If execution is unacceptable, what is the alternative?
_Incapacitation_. Convicted murderers can be sentenced to lengthy
prison terms, including life, as they are in countries and states
that have abolished the death penalty. Most state laws allow life
sentences for murder that severely limit or eliminate the possibility
of parole. At least ten states have sentences without the
possibility of parole for 20, 25, 30 or 40 years, and at least 18
states have life sentences with no possibility of parole.
A recent U.S. Justice Department study of public attitudes about
crime and punishment found that a majority of Americans support
alternatives to capital punishment: When people were presented the
facts about several crimes for which death was a possible punishment,
a majority chose lengthy prison sentences as alternatives to the
** Isn't the death penalty necessary as just retribution for victims'
All of us would feel extreme anger and a desire for revenge if we
lost a loved one to homicide; likewise, if the crime was rape or a
brutal assault. However, satisfying the needs of victims cannot be
what determines a just response by society to such crimes. Moreover,
even within the same family, some relatives of murder victims approve
of the death penalty, while others are against it. What the families
of murder victims really need is financial and emotional support to
help them recover from their loss and resume their lives.
** Have strict procedures eliminated discrimination in death
No. A 1990 Government Accounting Office (GAO) report summarizing
several capital punishment studies confirmed "a consistent pattern of
evidence indicating racial disparities in charging, sentencing and
the imposition of the death penalty...." Eighty-two percent of the
studies the GAO reviewed revealed that "those who murdered whites
were more likely to be sentenced to death than those who murdered
blacks." In addition, the GAO uncovered evidence (though less
consistent) that a convict's race, as well as the race of the victim,
also influences imposition of the death penalty.
A 1987 study of death sentencing in New Jersey found that prosecutors
sought the death penalty in 50 percent of the cases involving a black
defendant and a white victim, but in only 28 percent of the cases
involving black defendants and black victims. A 1985 study found
that, in California, six percent of those convicted of killing whites
got the death penalty compared to three percent of those convicted of
killing blacks. In Georgia, a landmark 1986 study found that,
overall, those convicted of killing whites were four times more
likely to be sentenced to death than convicted killers of nonwhites.
African Americans are approximately 12 percent of the U.S. population
yet of the 3,859 persons executed for a range of crimes since 1930,
more than 50 percent have been black. Other minorities are also
death-sentenced disproportionate to their numbers in the population.
This is not primarily because minorities commit more murders, but
because they are more often sentenced to death when they do.
Poor people are also far more likely to be death-sentenced than those
who can afford the high costs of private investigators, psychiatrists
and expert criminal lawyers. Indeed, capital punishment is "a
privilege of the poor," said Clinton Duffy, former warden at
California's San Quentin Prison. Some observers have pointed out that
the term "capital punishment" is ironic because "only those without
capital get the punishment."
** Maybe it used to happen that innocent people were mistakenly
executed, but hasn't that possibility been eliminated?
No. A study published in the Stanford Law Review documents 350
capital convictions in this century, in which it was later proven
that the convict had not committed the crime. Of those, 25 convicts
were executed while others spent decades of their lives in prison.
Fifty-five of the 350 cases took place in the 1970s, and another 20
of them between 1980 and 1985.
Our criminal justice system cannot be made fail safe because it is
run by human beings, who are fallible. Execution of innocent persons
is bound to occur.
** Only the worst criminals get sentenced to death, right?
Wrong. Although it is commonly thought that the death penalty is
reserved for those who commit the most heinous crimes, in reality
only a small percentage of death-sentenced inmates were convicted of
unusually vicious crimes. The vast majority of individuals facing
execution were convicted of crimes that are indistinguishable from
crimes committed by others who are serving prison sentences, crimes
such as murder committed in the course of an armed robbery. The only
distinguishing factors seem to be race and poverty.
Who gets the death penalty is largely determined, not by the severity
of the crime, but by: the race, sex and economic class of the
criminal and victim geography--some states have the death penalty,
others do not; and vagaries in the legal process. The death penalty
is like a lottery, in which fairness always loses.
* does not deter crime
* is discriminatory and arbitrary
* assures the execution of innocent people
* has no place in civilized society
** Does the law permit execution of juveniles and people who are
mentally retarded or mentally ill?
Yes. In 1989, the Supreme Court upheld as constitutional the
execution of 16 and 17 year-old (though not 15 year-old) juvenile
murderers. The Court likewise upheld the constitutionality of
executing mentally retarded people. Although juries are permitted to
consider retardation as a mitigating factor, many people on death row
today are mentally retarded. Regarding people who are mentally ill,
the Court has held that the Eighth Amendment prohibits execution only
if the illness prevents the person from comprehending the reasons for
the death sentence or its implications.
** "Cruel and unusual punishment" -- those are strong words, but
aren't executions relatively swift and painless?
The history of capital punishment is replete with examples of botched
executions. But no execution is painless whether botched or not, and
all executions are certainly cruel.
Hanging was the most common form of execution throughout the l9th
century and is still practiced in a few states. Problems often attend
hanging: If the drop is too short, death comes through gradual
strangulation; if too long, the jerk of the rope rips the head off.
_Electrocution_ succeeded hanging in the early 20th century. When
the switch is thrown, the body jerks, smoke frequently rises from the
head, and there is a smell of burning flesh. Science has not
determined how long an electrocuted individual retains consciousness,
but in May 1990, Florida prisoner Jesse Tafero gurgled, and his head
bobbed while ashes fell from it, for four minutes. And in 1983, it
took three jolts of electricity and ten minutes to kill an individual
in Alabama. The _gas chamber_ was intended to improve on
electrocution. The condemned is strapped in a chair and a cyanide
pellet is dropped into a container of sulfuric acid under the chair
to form lethal gas. The person struggles for air and may turn purple
and drool. Unconsciousness may not come for several minutes. The
_firing squad_ is still administered in Idaho and Utah. The
condemned is strapped in a chair and hooded, and a target is pinned
to the chest. Five marksmen, one with blanks, take aim and fire.
_Lethal injection_ is the latest technique, first used in Texas in
1982 and now mandated by law in more than a dozen states. Although
this method is defended as more humane, efficient and inexpensive
than others, one federal judge observed that even "a slight error in
dosage or administration can leave a prisoner conscious but paralyzed
while dying, a sentient witness of his or her own asphyxiation." In
Texas, there have been three botched injection executions since 1985.
In one, it took 24 minutes to kill an individual, after the tube
attached to the needle in his arm leaked and sprayed noxious
chemicals toward witnesses. Another, in 1989, caused Stephen McCoy
to choke and heave for several minutes before dying because the
dosage of lethal drugs was too weak.
Eyewitness accounts confirm that execution by any of these means is
often an excruciatingly painful, and always degrading, process that
ends in death.
* * * * *
Capital punishment is a barbaric remnant of uncivilized society. It
is immoral in principle, and unfair and discriminatory in practice.
It assures the execution of some innocent people. As a remedy for
crime, it has no purpose and no effect. Capital punishment ought to
be abolished now.
The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036
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