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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 punishment laws.

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 Deep South.

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 human life.

** 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 death penalty.

** Isn't the death penalty necessary as just retribution for victims' families?

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 sentencing?

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.

Capital punishment
* 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
(212) 944-9800

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