Death penalty is the harshest form of punishment enforced in the US today. After convicting a criminal offense, the jury moves to the punishment phase. If the jury recommends the death penalty and the judge agrees, then the criminal faces some form of punishment. Today lethal injections are the most common form of execution. Death penalty was considered cruel and unusual punishment and hence between 1972 and 1976 it was ruled unconstitutional by the Supreme Court (CWRL, 2002). The decision was subsequently reversed when new methods of execution were introduced. This paper will trace the history of death penalty and present views of both pro-death penalty and anti-death penalty advocates.
Death penalty for twenty five different crimes was first codified in the eighteenth century B.C. in the Code of King Hammaurabi of Babylon (DPIC, 2007). In the Fourteenth century it was found in the B.C.'s Hittite Code and in the seventh century in the B.C.'s Draconian Code of Athens. It was also found in the Fifth Century B.C.'s Roman Law of the Twelve Tablets. Death sentences were carried out means of crucifixion, drowning, beating to death, burning alive and impalement. Thereafter in the tenth century A.D. hanging became the commonly used method of execution in Britain.
When William the conqueror came to power, he was against hanging or any form of execution except in times of war. Again when Henry the VIII came to power in the sixteenth century as many as 72000 people are estimated to have been executed. During this period the common form of executions were boiling, burning at the stake, hanging, beheading, and drawing and quartering. Even marrying a Jew was considered a capital offense. By 1700s, 222 crimes were punishable by death in Britain including stealing, cutting down a tree, and robbing a rabbit warren. Reforms in death penalty started in Britain when the jury would not convict the defendants if the offense was not serious. Death penalties for over 100 of the 222 crimes were eliminated between 1823 and 1837 (DPIC, 2007).
America was influenced by Britain’s use of death penalty. The European settlers brought with them the practice of capital punishment. Captain George Kendall’s execution for being a spy in 1608 was the first to be recorded. Thereafter even minor crimes like stealing grapes, killing chickens, and trading with Indians were given death penalty. Laws regarding the death penalty varied from colony to colony. Reforms started in 1767 when an essay Crimes and Punishment by Cesare Beccaria had a strong impact through out the world (DPIC, 2007). This essay demonstrated that there was no justification for the state to take anyone’s life. Death penalty was immediately abolished in Austria and Tuscany. This essay influenced Americans too and the first reforms took place when Thomas Jefferson introduced a bill to revise Virginia's death penalty laws. This bill proposed that capital punishment should be used only for crimes of murder and treason but the bill was defeated. There were other voices raised against death penalty saying it served as a deterrent. There were opinions that death penalty actually increased criminal conduct. Dr. Benjamin Rush, a signer of the Declaration of Independence gained support of Benjamin Franklin and Philadelphia Attorney General William Bradford in his efforts to bring about reforms. In 1794, Philadelphia repealed the death penalty for all offenses except first degree murder.
This abolitionist movement brought about reforms in several states and the number of capital crimes was reduced. In 1834, Pennsylvania was the first state to move executions away from the public eye and carried them out in correctional facilities. In 1846, Michigan abolished death penalty for all crimes except treason. Rhode Island and Wisconsin abolished death penalty for all crimes (DPIC, 2007). By the end of the nineteenth century many countries like countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador had abolished death penalty.
Although death penalty was abolished in many states in US, most held on to capital punishment. Offense committed by slaves were considered capital offense and some states began passing laws against mandatory death sentence instead of enacting discretionary death penalty statutes. These were seen as a great reform because before this statute death penalty was mandated for anyone convicted of a capital crime, irrespective of the circumstances. During the civic war, attention against death penalty reduced as anti-slavery movement gained momentum. After the war, new means of execution emerged. Electric chair was introduced which was adopted by many states.
The actual reform in death penalty can be traced back to the early twentieth century when six states totally abolished death penalty and three states limited it to rarely committed crimes of treason and first degree murder of a law enforcement official. This reform was short-lived as citizens expected revolution in the wake of Russian Revolution and US had just entered WWI. Intense class conflicts prevailed and five states reinstated death penalty by 1920. Cyanide gas was introduced in Nevada as a more humane way of executing its inmates. Criminologists argued that death penalty was a necessary social measure which caused an increase in the use of death penalty between 1920 and 1940. During the Great Depression the number of executions increased (DPIC, 2007). In the 1950s as public sentiment turned away from capital punishment, many countries abolished death penalty and in the US also many sates limited its use. While there were 1289 executions in 1940s, there were only 714 in 1950s and in 1960s it was just 191.
This happened because in the 1960s, the fundamental legality of the death sentence was challenged. The Furman v. Georgia (408 U.S. 238) struck down federal and state capital punishment laws which permitted wide application of death penalty (Justicecenter, 2005). It was suggested that the death penalty was a “cruel and unusual” punishment, and therefore unconstitutional under the Eighth Amendment. Voices were raised that the US had progressed to a certain “standard of decency” and death penalty should not be tolerated. The method of administering death penalty was changed. The Court started overruling the decision of the jury and it was also felt that the members of the jury should be in a position to give impartial judgment on death penalty and not be influenced by their own preferences. The jurors were enjoying unrestricted discretion in deciding whether the defendants should live or die and this led to arbitrary sentencing. Thereafter the court approved of a single proceeding to determine guilt and sentence. The Supreme Court then set the standard that a punishment would be “cruel and unusual” if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty (DPIC, 2007).
The legislation was revised but it was tailored to satisfy the Supreme Court’s objection to arbitrary imposition of death sentence. Three states – Georgia, Texas and Florida had the discretion to impose death sentence for specified crimes and involved two stages (Justicecenter, 2005). The first stage determined the defendant’s guilt or innocence and in the second the sentence was considered after aggravating and mitigating circumstances. Georgia and Texas still relied on the jury for the final decision. The ten-year moratorium ended and new death penalty laws took place in 1977 with the execution of Gary Gilmore by firing squad in Utah. By 1997, 38 states and the federal government had capital punishment law and twelve states had no death penalty. In 1997, the Supreme Court further ruled that applying death sentence in rape cases was unconstitutional as the sentence was disproportionate to the crime. In 1978, the high court further enforced the states to follow Ohio, in that the sentencing authority must consider every possible mitigating factor to the crime rather than limiting it.
Currently thirty-eight states including Ohio and the federal government continue to execute people while twelve states do not (LWVC, 1996). Till the end of the 19th century, Ohio sent the convicts to the gallows. There after, until 2001, it used the electric chair as a more humane form of punishment and since then it uses lethal injections. The humaneness of lethal injections is now being questioned in all states including Ohio. Responding to the high court’s decision that death penalty sentencing was arbitrary and discriminatory, the Ohio General Assembly revised the state's death penalty statute in 1974. Subsequently this revision was found to be unconstitutional by the Ohio Supreme Court in 1978. As a result, 185 prisoners on Ohio’s death row had their sentences converted to life in prison. Between 1887 and 2004, Ohio executed a total of 351 people.
The Roman Catholic Church has been constantly opposing the practice of death sentence but there are diverse opinions and advocates of both anti-death penalty and pro-death penalty. The proponents believe that fear of death acts as a deterrent (CWRL, 2002). It can exert a positive moral influence by attaching a stigma to certain crimes. The opponents argue that it does not act as a deterrent. Nations that have abolished death penalty have not experienced an increase in the number of murders. The opponents feel that there has to be conviction of morality without which people will break law at the slightest opportunity. The proponents further state that use of death penalty could actually reduce the number of violent murders by eliminating repeat offenders, and which is what was intended by law.
The opponents feel that innocent people will be wrongly executed but this is not the case as there are many safeguards that guarantee protection of the rights of those facing the death penalty. Death penalty is not imposed on those below 18 years of age, pregnant women, new mothers or insane people (CWRL, 2002). Besides, those convicted have a right to appeal even after the court has announced the order. The judgment itself is declared after determining the guilt based on clear evidence. Every case takes bat seven to eight years before the final judgment is announced which makes it impossible for any innocent person to be executed.
Another reason why the proponents support death penalty against life without parole is the fear that a murderer if released may murder again. Executions maximize public safety through a form of incapacitation executing a person takes away the capacity and forcibly prevents recurrence. The advocates of death penalty agree that execution is an act of barbarism but so is the murder that the convict commits and hence a befitting punishment. Criminals invite this punishment and they deserve it. When the opponents propose that it is a tragic end to human life, the proponents remind them that the life of the innocent was much more of a tragedy than the state executing a murderer. Retribution is a justification for capital punishment because it is an injustice to tolerate criminal behavior such as murder. If death penalty is cruel, inhumane and degrading, murder in the first place is all the more inhumane. Execution is quick and instantaneous and hence more humane than planned murder. If the criminals are not forced to pay for their crimes with their lives, then the others too are equally responsible for allowing such criminals to thrive.
The next is the economic factor and the burden that life sentence imposes on the tax payers if the criminal is not granted death penalty. If there is no threat of death, the criminal would continue to live in a decent environment and thus would not even be fair to the victim’s family. If the criminals are allowed to live in prison with other inmates, it also increases the chances of them killing another inmate. Death penalty saves court’s time through limited appeals. Numerous appeals results in unforeseen costs. These necessitate that death penalty should be enforced timely which would help to reduce the crime problem by instilling a sense of respect for the law. There are instance like that of Ted Bundy who remained on death row for ten years after murdering 50 women. Statutes need to be reformed and regulated which would instill confidence in the public in the justice system.
The anti-death penalty advocates cite the example of Leopold and Loeb, who having committed murder at the age of nineteen, were not granted death penalty. Instead they were given life imprisonment and made to contribute to society in many ways. The opponents argue that execution is cruel and unusual punishment but then because of this claim there was a ten-year moratorium in execution until it was found that it was not unconstitutional. They feel that death penalty is wrong morally because it is cruel and inhumane and the method of execution causes physical torture. To them capital punishment is a euphemism for legally killing people, for which even the state has no authority. It is not a remedy for crime, claim the opponents. It is immoral, unfair and discriminatory in practice. There have been several cases in which innocent people have been executed after which no compensation is possible. It hence infringes on the right to live.
In Ohio, a public poll revealed that 74% support death penalty against 24% opposing it and the figures have not changed in the past several years. They also agree that death penalty provides safety and security and protects the rights of the victims’ loved ones. The death penalty is a necessary tool that reaffirms the sanctity of human life. While there are Federal and State Statutory Safeguards in Ohio, another federal legislative process is the Innocence Protection Act of 2001. This attempts to reduce the wrongful convictions and wrongful executions as four death row inmates have been found innocent in the past twenty five years.
Racial discrimination is very rampant in death penalty. It has been found that race is a key factor whether death penalty is sought and imposed. Murderers of whites are six times more likely to be executed that the murderers of blacks although there are equal number of blacks and whites homicide victims. The majority of the 4,220 prisoners executed in the U.S. between 1930 and 1996 were black. The situation is the same in Ohio.
One of the reforms measure is the use of DNA testing to confirm innocence or guilt in case of death penalty. Deoxyribonucleic acid (DNA) is an essential molecule that is part of every cell in our body (ACLU, 2002). It enables an embryonic cell to become and exist as a functioning being. Modern science can accurately distinguish between DNA of individuals. It is unique because it remains unchanged through out one’s life. DNA testing on biological samples can help convict or exonerate with great accuracy but the biological evidence has to be collected and preserved with efficiency and free from contamination. Blood, semen or hair from the crime scene can be compared with the cells swabbed from the suspect’s mouth to see if there is a match (LWVC, 1996). Nevertheless, DNS testing cannot always be out to use. Because of the nature of the crime, a DNA test cannot identify the murderer. Moreover, the scope of DNA is limited as biological evidence should be available. According to the director of the Capital Punishment Project of ACLU, while DNA is a very good tool to prove the innocence of the inmates, it still does not mean the end of erroneous capital executions (Cremonesi, 2006).
Since the Supreme Court ruled in 1976 that death penalty was not a violation of the Eight Amendment of the Constitution, more than 1000 people have been executed (Walker, 2005). In 2006 however, there were only 53 executions (USINFO, 2007). While arguments in favor of death penalty include deterrence and retribution, opponents insist that the risk of executing innocent people should preclude use of death penalty. The government recognizes that death penalty should be administered fairly, swiftly and surely. The executions have resulted in immeasurable human costs both for the victims of the violent crime and the families of those executed. The Patriot Act is expected to affect the application of death penalty. It could triple the number of terrorism-related crimes. The Florida Supreme Court urged that the capita-case jurors should be unanimous in recommending death sentences or at least in deciding the aggravating factors that support death penalty. North Carolina has appointed a Death Penalty Study Commission to examine how the death penalty is carried out in the state.
Currently, while 38 states carry out death penalty, twelve states and the District of Columbia have abolished it. Death-penalty statutes in New York and Kansas were declared unconstitutional in 2004. Individual states have their own guidelines for imposing death penalty. In California death penalty can be imposed for even wrecking a train or committing perjury that results in death. Death penalty is however not imposed on those who were eighteen years of age at the time of the crime. The Supreme Court also abolished the death penalty in 2002 for the mentally retarded offenders. In California, the state’s lethal injection process was declared unconstitutional in 2006 (USINFO, 2007) hence some states are reviewing the process of lethal injections to ensure that it does not violate the U.S. Constitution's Eighth Amendment provision against cruel and unusual punishment. A number of rulings during 2006 have impacted state capital punishment policies. The inmates can challenge the lethal injections as a civil rights issue. The Supreme Court further rules that death-row inmates can challenge their convictions if DNA evidence found after their trials end shows that they might be innocent. New Jersey has death penalty moratorium. After a debate the commission reported that it led to high financial burdens and besides death penalty does not deter crime.
The debate in the United States continues while individual states have their own guidelines for imposing death penalty. Despite this, generally all states the criminals convicted of first-degree murder face death penalty. The most common methods of execution continue to be electrocution and lethal injection. The majority in the United States however still support the death penalty for convicted murderers.
ACLU (2002), DNA Testing and the Death Penalty, 10 June 2007
Cremonesi, A., (2006), DNA Tests Prove Justice Has Failed,10 June 2006
CWRL (2002), Capital Punishment: Life or Death? 09 June 2007
DPIC (2007), History of the Death Penalty,
LWVC (1996), History of Death Penalty in Ohio,
Justicecenter (2005), History of the Death Penalty & Recent Developments, 09 June 2007
USINFO (2007), Capital Punishment in United States Continues To Be Debated, 09 June 2007
Walker, C., (2005), Death Penalty Remains Subject of Debate in United States, 09 June 2007