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Art history 1993

American Civil Liberties Union Briefing Paper Number 8




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 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. |


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