History of the Death Penalty

     When British settlers came to the new world, they brought with them the practice of capital punishment.  In 1608, Captain George Kendall of Jamestown accused of being a spy for Spain was the first recorded execution.  The Divine, Moral and Marital Laws enacted by Virginia Governor Sir Thomas Dale, in 1612, imposed the death penalty for trifling offenses, such as; stealing grapes, killing chickens and trading with the Indians.

     Capital Punishment laws varied from colony to colony, similar to today, which is from state to state.  Massachusetts Bay Colony’s first execution was in 1630, even though death penalty laws of the New England Colonies did not go into effect until years later. New York Colony had Duke’s Laws of 1665, which added striking your mother or father, or denying the “true God,” punishable by death.

      Early executions were public, held in town squares, where large crowds would gather to watch.  Executions moved indoors and out of public view, once penitentiaries started to be built, in 1834.  During the Civil War, some states began to reform laws and abolish the death penalty, in favor of life in prison.  Then during the first half of the 20^th century, public support for Capital Punishment grew.  Capital Punishment has been a controversial issue for centuries. (DPIC, 2007)

      The 1930’s saw the highest level of executions to date, an average of 167 people was put to death each year.  In l960 public support waned again and the legality of the death penalty itself was challenged.  In l972, the United States Supreme Court ruled 5-4 that the Death Penalty was “cruel and unusual” punishment and a violation of the Constitution.  Technically that ended Capital Punishment in the United States, however, individual states found ways to amend their Death Penalty laws to make them legal.

     Throughout the inception of the Death Penalty, in the Colonies, various methods of execution have been used; burning, pressing, gibbeting (hanging by chains) and the most common, hanging.  Currently five methods are used in the U.S.; lethal injection, electrocution, gas chambers. hanging and firing squad.  From 1976 to September 2007, out of 1098 executions, 928 have been from lethal injection; 154 by electrocution; 11 by the gas chamber; 3 by hanging and 2 by firing squads.  Lethal injection has become the standard method.

     Rob Gallagher, in his informative article, Before the Needle, highlights the percentage of executions and methods by decades:

                     1608-1708:         34% for murder          86% hanged

                     1709-1808:         31% for murder          91% hanged

                     1808-1908          66% for murder          96% hanged

                     1909-1991          56% for murder         64% electrocuted

 Capital Punishment is currently imposed on so few convicted murderers (less than one percent) that some defense attorneys call it “cruel and unusual,” punishment. The penalty is legal in 38 states.  Texas, Virginia, Oklahoma, Missouri and Delaware have the highest rates of executions, accounting for 60% of the nations total from 1977 to 2003.

Landmark Death Penalty Court Cases

Furman v. Georgia:   Argued on January 17, l972, decided on June 29, l972.

     The victim surprised Furman while he was burglarizing the victim’s home in the middle of the night. A single pistol shot fired through the closed kitchen door from the outside, as he was trying to escape, killed the homeowner.  Furman’s versiion at his trial, helped convict him of first-degree murder.  He said, “They got me charged with murder and I admit, I admit goint to these folks home and they caught me in there and I was coming back out . .. the gun went off and I did not know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran.  That’s all to it.” (ACLU)

     Pending trial Furman was committed to the Georgia Central State Hospital for a psychiatric examination, on his court appointed counsel, Anthony Amsterdam’s plea of insanity.  The staff diagnonsis was Mental Deficiency, Mild to Moderate, with Psychotic Episodes Associated with Confulsive Disorder. The superintendent, however, concluded that Furman was not psychotic at present, knew right from wrong, and was able to stand trial (Justia.com).

     At trial, the jury only knew that William Furman was black, 26 years old and worked at the “Superior Upholstery.”  It took them 35 minutes to return a guilty verdict and a death penalty sentence.  On appeal to the Supreme Court a 5-4 split in overturning the sentence, stating it violated the 8^th and 14^th Admendments.  Justice Potter Stewart, one of the majority, wrote that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual . . .”   The Supreme Court ruled the death penalty was unconstitutional because it was implemented in an, “arbitrary and capricious” manner.  Furman v. Georgia’s groundbreaing outcome, sent states back to their “legislative drawing boards,” to devise death penalty legislation that would avoid this claim.   Statutes should make clear why people who commit the same crime, do not all receive the same punishment (Foley, 2006).

McCleskey v. Kemp:  Argued October 15, l986, decided April 22 l987.

     Warren McKleskey, an African-American man was convicted of murdering a white police officer in Fulton County, Altanta, Georgia, on October 12 1978.  Several weeks after the incident he was arrested for an unrelated offense, he confessed participating in armed robbery, but denied he had shot the police officer.  At trial, evidence that the deadly bullet came from a .38 caliber Rossi revolver, matched the description of McCleskey’s gun during the robbery.

     Under Georgia law, the jury needs to find the defendant guilty, beyond a reasonable doubt, that the murder was accompanied by one of the statutory aggravating circumstances to impose the Death Penalty.  The jury found two: “the murder was committed during the course of an armed robbery, and the murder was committed upon a peace officer engaged in the performance of his duties,” (Powell.n.d.). McCleskey was sentenced to death.

     During his appeal, McKleskey brought before the court a well-known, statistical study, called the “Baldus Study,” conducted by Professor David C. Baldus, Charles Pulaski and George Wardsworth.  The study indicated that jury’s inGeorgia were far more likely (22%) to impose the death penalty if the victim was white and the assailant was black.  According to McKleskey, this study proved Georgia used a “guided-discretion scheme,” which came into fruition because of the Furman v. Georgia case, that the state’s extreme racism violated both the 8^th Amendment and the “equal protection,” clause of the 14^th

Amendment.

     The Court rejected the argument, noting that McCleskey offered no evidence to suport his own inference that racial consideration effected his trial. (Coenen, 2004).    His death sentence was not disproportionate to other death sentences imposed in the state.  Decisions for imposing the death penalty since the Furman case identified a constitutionally tolerable range of discretion and directive.  Georgia had to establish cogent criteria to narrow juries’ judgement, to distinguish valid circumstances, and significantly show the death penalty is disproportionate to a particular offense.   McCleskey was electrocuted by the state, in September, l971.

California v. Anderson: 

     Robert Page Anderson’s milestone case outlawed the use of Capital Punishment in California.  Anderson was convicted of 1^st degree murder, attempted murder of three men and 1^st degree robbery.  He was sentenced to death, but under California law was automatically granted an appeal to the State Supreme Court, this jury upheld the verdict and penalty.  In Anderson’s final appeal, the Court, found the death penalty to be cruel

and unusual punishment.

     The peculiarity of the three trials were extreme, in the original trial (l966), the Court didn’t raise any concern that the death penalty was unconstitutional; the 2^nd hearing, in l968, the Court did raise the issue, but decided the penalty was neither cruel nor unusual, and the final trial, it found Capital Punishment to be unconstitutional.

          Eighty-three inmates on Death Row at California’s San Quentin Prison, waiting for the rulings on Anderson’s appeals, gained a stay of execution.  Fortunately, his appeals came at an opportune time, when society had come to view executions as a cruel and  unusual form of punishment, and California had earned a reputation as one of the most liberal states in the country.   The final ruling overturned all death penalty sentences and commuted them to life in prison; it also stated that any person convicted of murder, before 1972, could not be sentenced to death.  Later in l972, legislation was passed reinstating the death penalty in California (Time, l968).

Statistical Studies on Deterrance:

     What are the implications of the Death Penalty for deterring murder incidents?  Theoretically a simple premise, raise the stakes for convicted murderers and there will be less murders.  Numerous studies have been published over the past few years using panel data sets and sophisticated social science techniques. The studies are depicting that the

Death Penalty saves lives.

     Professors Hashem Dezhbahsh, Paul R. Rubin and Johanna M. Shepherd of Emory University found that each execution results in eighteen fewer murders.  State-level panel

data was used from 1960-2000, using the moratorium as a “judicial experiment,” to contrast the correlation between executions and murders.

The study showed a marked increase in the homicide rate during the moratorium.

     Professor Shepherd conducted a separate study with two objectives:

 What kinds of murders are deterred; and what affect the length of the death row wait had on deterrence? She used data nused in the Capital Punishment literature: monthly murder and execution data.   The Professor believed monthly data was a more efficient measure of deterrence for two reasons: able to observe monthly murder fluctuations, and only monthly data allows a representation, in which, criminals update their alleged execution risk dynamic.

     Shepherd’s studied from1977-1999 and found three important factors: 1) each execution was associated with three fewer murders.  2) Executions deter the murder

African Americans.  Each execution prevents the murder of one white person, 1.5 African-Americans and 0.5 persons of other races.  3) Shorter waits on death row associated with an increase in detterence.  For each additional 2.75 year reduction in wait, one murder is deterred.    Professor Sheherd also concluded that Capital Punishment deters murders previously understood to be undetterable:  crimes of passion and muder by relations.

     Professors H. Naci Mocan and R. Kaj Gittings of the University of Colorado published two studies confirming the deterrence of Capital Punishment.  The first study compiled state-level data, from l977-1997, found for each execution about five murders were

avoided.  An inmate removal from death row, by the Courts, is associated with an increase of one additional murder.  Professors Mocan and Gittings conducted several analyses to combat criticism, and found that their original findings provided immense

support for the detterent effect of Capital Punishment and the homicide rate.

     Paul Zimmerman, a Federal Communications Commission economist, supports the deterrent effect of Capital Punishment.  Using data from l978-1997, he found each execution results in 14 fewer murders. Zimmerman’s second study examined whether the method by which Death Penalty states conduct their executions reduces the homicide rate.  Several measures of subjective probability, of being executed are developed taking into account the timing of individual executions.  The pragmatic estimates suggest a deterrent effect of Capital Punishment is motivated predominantly by execution conducted by electrocutions.  None of the other four methods are found to have a substantial impact on murder incidents.  (Muhlhausen,2007).

     These recent studies conclude that the Death Penalty is a deterrent to homicide rate.  Each execution seems to deter from 3-18 murders and the moratorium, commuted sentences and death row removals, appear to compliment the Death Penalty by deterring the rate even further.

Policy Implications

     Capital Punishment in the United States continues to be controversial. There were 53 executions carried out in 2006, the lowest in ten years, partially due to legal challenges resulting in may states reviewing their death penalty policies and procedures.  Concerns over how lethal injections are administered is causing some states to review their process to ensure that lethal injections do not violate the 8^th Amendment provision against cruel and unusual punishment.

     Maryland stopped executions in the state on December 19, 2006 until a legislative panel reviewed the manual detailing the lethal injection procedure.  In California, on December 15, 2006, a federal judge determined the state’s lethal injection process to be unconstitutional.  This ruling extended the moratorium, which was implemented in February 2006.  Governor Schwarzenegger confirms his administration plans to modify the procedure so they are constitutional.

     Florida Governor Jeb Bush, also halted lethal injections in December 2006 after a medical examiner’s report showed the drugs used to execute convicted killer Angel Nieves Diaz, were given improperly.  Diaz, received two doses and witnesses said he was “visibly in pain,” in took thirty-four minutes for him to die.  The state has to decide if the process constitutes cruel and unusual punishment.

     Courts throughout the nation made several rulings during 2006 that have affected state Capital Punishment policies.  In June, the Court, determined that inmates can challenge lethal injection as a civil rights issue.  Clarence Hill, on death row in Florida, since 1982,

for killing a police officer, argues that death by lethal injection violates his civil rights because the 8^th Amendment bans cruel and unusual punishment.

     Individual states have guidelines for imposing the Death Penalty; some states have called for a moratorium while reviewing procedures, primarily in reference to lethal injections, and if it violates the 8^th Amendment, (USINFO, 2007).

     Currently, in the United States, the two common modes of execution are by lethal injection or electrocution.  According to Paul Zimmerman’s study, the main deterrent is death by electrocution.   States carrying Capital Punishment laws should consider opting for this method, as opposed to lethal injection.  Electrocution has not been challenged as unconstitutional, therefore quite possibly the better method.

Conclusion:

     Capital Punishment since its inception with the original Colonies has been a source of heartfelt, moral, political and humane controversy.  Over 60% of Ameicans are in favor, and the myriad of studies showing the Death Penalty as a deterrent to homicide contributes to this majority.  On the flip side of the proverbial coin, there is a myriad of critics for these documented studies.  According to an article by Cassy Stubbs, “The Death Penalty Deterrence Myth:  No Solid Evidence That Killing Stops Killing, she makes a very realistic point; it may be impossible to determine a valid statistical relationship between executions and the homicide rate, because the number of executions is minimal in comparision.  Stubbs states, “But what we can say with certainty is that there is no legitimate statistical evidence of deterrence.”

     For some people, like Stubbs, viewing the Death Penalty as a deterrent may still be a product of belief, however, her point of “no legitimate” evidence is erroneous.  The studies introduced in this paper are only three of hundreds.  Research concludes there is valid evidence depicted in these studies.

      From 1966-1980, which includes the national moratorium on executions (June, l967-Jan., l970), murders in the United States more than doubled from 11,040 to 23,040; homicide rate jumped from 5.6% to 10.2%.  In l980, the rate plummeted from 10.2% to 5.5%.  The largest decline in murder rates have occurred in the 38 states that have Capital Punishment laws. (Sharp, 2004)

     Several recent econometric studies of the effect of Capital Punishment have increasingly provided evidence that it deters homicide.  In January, 2000, the Governor of Illinois declared a moratorium pending a review of the states death penalty process.  In January, 2003, he commuted the death sentences of all death row inmates.  Statistics prove these actions coincided with a dramatic increase in Illinois’s homicide rate, with an estimated 150 additional homicides during this 48 month period.

                                                                                 References

ACLU (n.d.) “Furman v. Georgia,”  http:wwwacluprocon.org

Coenen, D., (2004), “McCleskey v. Kemp “(l987) The New Georgia Encyclopedia

     http://wwwgeorgiaencyclopedia.org

DPIC, (2007), “History of the Death Penalty,” Death Penalty Information Center

     http://wwwdeathpenaltyinfo.org

Foley, M, (2006), “Toward Understanding the Death Penalty Debate,” American Library

     Association, http://www.ala.org/ala/acr/acrlpubs/choice/content/essay.cfm

Gallagher, R (n.d.), “Before the Needle,” http://www.users.bestweb.net

Justia (l972), “United States Supreme Court, Furman v. Georgia,” (p.408)

     http://supreme.justia.com/us/408/238/case.html

Muhlhausen.D. (2007), “The Death Penalty Deters Crime and Saves Lives,”
The Heritage Foundation, http://wwwheritage.org

Powell, J (n.d) “McCleskey v. Kemp,” Cornell University Law School

     http://www.law.cornell.edu

Sharp, D., (2004), “Crime and Law Enforcement Issues and Death Penalty,”

     All Experts.com. http://wwwen.allexperts.com

Stubbs.C. (2007), “The Death Penalty Deterrence Myth: No Solid Evidence that Killing

     Stops Killing,” The Huffington Post, http://wwwhuffingtonpost.com/casy-stubbs/

Time (1968), “Capital Punishment is Constitutional,” Time in Partnership with CNN.

     http://wwwtime.com/time/magazine/article/0,9171,841537,00.html

USINFO, 2007, “Capital Punishment in United States Continues to be Debated,”

     U.S. Department of State, http://usinfo.state.gov