American Civil Liberties Union Briefing Paper Number 8
THE DEATH PENALTY
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
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 and 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
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 th e possibility of parole. At
least ten states have life 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'
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
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 non-whites.
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
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 l980 and
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
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 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 19th 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 l990, 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 l982 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
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
| Capital punishment does not deter crime. |
| Capital punishment is discriminatory and arbitrary. |
| Capital punishment assures the execution of innocent people. |
| Capital punishment has no place in civilized society. |