To date, the death penalty no longer exists in 18 of the 50 U.S. States
To date, the death penalty no longer exists in 18 of the 50 U.S. States
39 MIN READ
To date, the death penalty no longer exists in 18 of the 50 U.S. States, including New York, where the State's Court of Appeals in June 2004 held that a portion of the death penalty law was unconstitutional, and in 2007 they ruled that their prior holding applied to the last remaining person on the state's death row (since then, the State's legislature has voted down attempts to restore the statute). Capital punishment is also abolished in the District of Columbia, better known as the nation’s capital city Washington D.C.
The most recent abolition of the death penalty took place in Maryland in May 2013, and in Connecticut in April 2012.
The death penalty is still in effect in 32 States and in 2 jurisdictions (the Federal Government and the Military).
Although the United States is considered a death penalty country, executions are rare or non-existent in much of the nation: 28 of 53 jurisdictions in the U.S. (50 States, the District of Columbia, the Federal Government, and the Military Justice System) either do not have the death penalty or have not carried out an execution in at least 10 years. Most of those have not carried out an execution since the death penalty was reinstated in 1976. An additional 5 have not had an execution in 5 years, for a total of 33 jurisdictions with no executions in that time.
Only 9 States carried out an execution in 2012, compared to 13 in 2011, and only 4 States carried out more than 3, mostly in the South.
The number of inmates on death row also decreased. As of 1 January 2013, there were 3,125 inmates under a sentence of death, a decrease of 64 from 1 January 2012.
Executions
In 2012, there were 43 executions, the same as in 2011, but fewer states carried them out.
Executions in 2012 took place in only 9 of the 32 States with the death penalty: Texas (15); Arizona (6); Oklahoma (6); Mississippi (6); Ohio (3); Florida (3); South Dakota (2); Delaware (1); Idaho (1).
In 2012, no executions took place in 5 States – Alabama, Georgia, Missouri, South Carolina and Virginia – that carried out executions in 2011. On the other hand, South Dakota resumed executions in 2012 after a de facto moratorium dating back to 2007.
Texas, since ever the State with more executions, had 24 in 2009, 17 in 2010, and “only” 13 in 2011.
All executions in 2012 were carried out by lethal injection, and all used a relatively new drug, pentobarbital, either alone or in combination with other drugs.
All executions in 2012 concerned males. Their average age was 49 years, almost 5 years higher than in 2011. The average age of those executed is increasing also because the average time between sentencing and execution continues to increase. In 2012, this lag has reached 16.9 years, two more than the previous year, and almost 3 years more than in 2010.
As for race, 27 of those executed in 2012 were White, 11 Black, and 5 Latino. Only 16% of the executions stemmed from the murder of a black victim, even though blacks are the victims in about 50% of murders.
In the first six months of 2013 (as of 29 May), thirteen executions were carried out in six States.
Death Sentences
According to the Death Penalty Information Center, 78 people were sentenced to death in 2012, the second lowest number of sentences since the death penalty was reinstated in 1976. In 2011, 76 new sentences of death were handed down, a steep decrease from the past, when they never came under 100. In 2010, there were 114 and there were 112 in 2009.
In 2012, as usual, a big part of the sentences (59%) were handed down in the South. However, prominent death penalty States in the South, including North Carolina, South Carolina, and Virginia (which has been second to Texas in executions) remarkably had no death sentences and no executions in 2012. Georgia had two death sentences and no executions; Louisiana had one sentence and no executions. Death sentences, like executions, were largely clustered in a few states. Just five States – Florida (22), California (13), Texas (9), Pennsylvania (7), and Alabama (6) – accounted for 73% of the country’s death sentences. A death sentence was issued at federal level.
Death Row
The January 2013 edition of the NAACP Legal Defense Fund's Death Row USA showed a continuing decline in the number of people on death rows across the country.
As of 1 January 2013, there were 3,125 inmates under a sentence of death, a decrease of 64 from 3,189 reported on 1 January 2012. Over the last decade, the size of death row has dropped almost 16%, from 3,703 inmates in 2000 to 3,125 in 2013.
California continued to have the largest death row population (727), followed by Florida (413), Texas (300), and Pennsylvania (202). Neither California nor Pennsylvania has carried out an execution in at least 7 years.
Along racial lines, 43.23% of inmates are white, 41.89% are black, 12.38% are Latin-American and 2.48% belong to other ethnic groups (Native American, Asian…). Divided by gender, there are 63 women and 3,062 men on the United States’ death rows.
Abolitions and moratoriums
In April 2012, Connecticut abolished the death penalty, and in May 2013 Maryland became the sixth State in six years to abolish it. The other four States that ended capital punishment recently are New Jersey (2007), New York (2007), New Mexico (2009), and Illinois (2011). In Oregon, the Governor declared a three-year moratorium on all executions in November 2011.
Of the 34 jurisdictions where the death penalty is still in effect, 9 have not carried out an execution in more than ten years: Colorado (last execution in 1997), Kansas (1965), Nebraska (1997), New Hampshire (1939), Oregon (1997), Pennsylvania (1999), Wyoming (1992), U.S. Federal Government (2003), and U.S. Military (1961).
Since capital punishment was reintroduced in 1976, three States have executed only "volunteers", i.e. death row inmates who voluntarily asked to hasten on execution process: Pennsylvania executed 3 people, Oregon 2, and Connecticut 1.
Legislation
One of the most important facts of 2012 was certainly the referendum in California on the abolition of the death penalty.
On 6 November 2012, California’s Proposition 34, an initiative to replace the death penalty with a sentence of life without parole and to require inmates to work in prison to help pay restitution to the families of victims, was narrowly defeated by a vote of 52.7% to 47.3%.
The proposed law was called SAFE California, an acronym for Savings, Accountability and Full Enforcement. It needed 504,000 valid signatures to qualify for ballot, but its proponents gathered nearly 800,000.
The proponents have calculated that death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole. The death penalty repeal could re-allocate the money saved to a fund for murder victims’ services and law enforcement.
Although the result means the death penalty will continue in the State, the percent of voters supporting repeal represents a dramatic shift away from capital punishment. The referendum, which indicated just more than half of voters are in favour of keeping the death penalty, followed a broader trend of diminishing public support for the punishment. By contrast, the 1978 ballot initiative that enacted California’s death penalty statute passed with the support of 71% of the voters.
Governor Jerry Brown said he had voted in favour of repealing the death penalty, after declining during the campaign to say how he would vote on the measure. Despite his longstanding moral reservations about capital punishment, the Democratic Governor enforced the death penalty as State Attorney General and promised during his gubernatorial campaign in 2010 to uphold the law if elected. Near his home in the Oakland hills, the Governor was asked about Proposition 34 outside the fire station where he cast his ballot. "I voted 'Yes,'" he said. "Of course." Brown's vote was as expected. As Hovernor from 1975 to 1983, Jerry Brown vetoed death penalty legislation, though his veto was overridden by the Legislature.
On 30 May 2013, a California appeals court upheld a judge's ruling prohibiting the state from executing condemned inmates until it adopts a new lethal-injection protocol. In December 2012, the Chief Justice of California's Supreme Court, Tani Cantil-Sakauye, had said that she did not expect executions in California to resume for at least three years because of problems with the lethal injection process. California has already not carried out an execution in seven years.
During 2012 and the first months of 2013, there were many legislative proposals concerning the death penalty, some towards abolition, others to create stricter norms regarding its application and others to facilitate its application. Many of these bills were short-lived, blocked in the preliminary phases of the legislative review process.
On 22 February 2012, in Virginia, a sharply divided Senate committee rejected a bill to expand the death penalty. The Courts of Justice Committee voted 8-7 to kill the legislation to redefine Virginia’s triggerman rule. Republican Sen. Mark Obenshain has tried for years to repeal the triggerman rule, which allows only the person who does the actual killing to receive the death penalty. When it has advanced, the measure was vetoed by Gov. Timothy M. Kaine (see March 26, 2006, march 5, 2008 and March 27, 2009). This year’s version of the bill would have allowed the death penalty for co-conspirators only in cases where a victim was raped and murdered. The new Governor, Bob McDonnell, a republican who took office in Jan. 2010, said he would sign it into law if given the chance.
On 2 March 2012, in South Dakota, Governor Dennis Daugaard ratified a new law (SB42) that prevents death-row inmates from filing repeated appeals in an effort to delay their executions. Attorney General Marty Jackley proposed the measure, saying limits are needed in death-penalty cases because some cases are tied up in appeals for 2 decades. Under the new law convicts who lose a first direct appeal usually could file only one secondary appeal. State law currently puts no limit on those secondary appeals, called habeas corpus petitions. Those petitions generally argue that a convict’s constitutional rights were violated, and they often contend the person’s previous lawyers made mistakes. The bill would limit convicts to one secondary appeal, unless new evidence is discovered or an appeals court recognizes a new constitutional right that would apply to the case. Those secondary appeals also would have to be filed within two years of when the first direct appeal was decided or new evidence was discovered. The attorney general said the bill’s limits on secondary appeals are the same as those applied in 31 other States and the federal court system.
On 22 March 2012, the Kentucky House approved a resolution (House Concurrent Resolution 173) to establish a task force to develop a plan for implementing the recommendations of an American Bar Association report on the death penalty released on 7 December. The resolution offered by Jesse Crenshaw, a Lexington Democrat, passed by a 73-18 vote. Crenshaw said the ABA's Kentucky Death Penalty Assessment Report offered suggestions for improvements to the way death penalty cases are handled, including improvements in the areas of retaining evidence and clarifying instructions to juries. Between 1976 and 2011 in Kentucky, 78 people were sentenced to death, but 50 of those cases were overturned.
On 2 July 2012, in North Carolina, the House and Senate voted separately to override Gov. Bev Perdue's veto of changes to the 2009 Racial Justice Act, the 2009 law that allows death-row inmates to try to convert their sentences to life in prison without parole by using statistical proof of racial bias. Under the latest law, sponsored by Republican lawmakers, any statistics used would be limited to the county or prosecutorial district where a trial occurred, instead of from across North Carolina. Lawmakers who supported the Racial Justice Act said the changes gutted the law and will make it impossible for defendants to prove discrimination in the sentencing of a convicted murderer or in the composition of jurors hearing a case. On 3 April 2013, the State Senate voted to repeal the remnants of the Racial Justice Act. Senate Bill 306 now goes to the state House. If passed, the legislation would restart executions in North Carolina, where there has been an unofficial moratorium since 2006.
On 7 February 2013, in Florida, in a 9-4 vote, the House Criminal Justice Subcommittee voted against a bill (HB 4005) that would have abolished the death penalty. But the rare vote to kill a bill in committee, rather than just bottling it up never to be heard, gave death penalty opponents their 1st chance to extensively argue for a repeal, following several years in which the measure's sponsor, Rep. Michelle Rehwinkel Vasilinda, has been unable to persuade Republican leaders to put the bill before a committee. On 29 April, the Florida Senate passed 28-10 the Timely Justice Act of 2013 to accelerate the State's capital punishment process that was criticized for allowing some condemned inmates to languish for decades on death row. The House passed the bill by an 84-34 vote on 25 April. The bill went to Gov. Rick Scott for his consideration. The Timely Justice Act creates a new process that establishes a system to determine which inmates on death row have exhausted their post-conviction appeals and requires the Governor to sign a death warrant within 30 days, after a Supreme Court review. The execution would then have to take place within 180 days. As of early March, Florida had 404 inmates on death row, with 155 in custody for more than 20 years, and 10 who had been on death row for more than 35 years.
On 22 February 2013, in Montana, the House Judiciary Committee rejected the proposal to replace the death penalty with life in prison without the possibility of parole. It is the same body that stalled a similar proposal that made it all the way to the senate in 2009 and 2011. House Bill 370 by Rep. Doug Kary failed on an 11-9 vote.
On 26 March 26 2013, in Colorado, the Judiciary Committee of the Colorado House of Representatives rejected 6-4 a bill to repeal the death penalty. Rep. Claire Levy, D, and Rep. Jovan Melton, D, sponsored the measure. Two Democrats joined Republicans in opposition to the measure.
On 26 March 2013, in Oklahoma, the House overwhelmingly approved a bill to make the death penalty an option in 1st-degree murder cases only if the State is seeking it. Current law tells judges to consider the penalty even if the state doesn't ask for it. The chamber voted 82-10 in support of the proposal from Rep. Scott Biggs. It has already passed the Senate and now waits for Gov. Mary Fallin's signature to become law.
On 18 April 2013, a bill sponsored by Rep. Mitch Greenlick seeking to ask voters to repeal Oregon's death penalty died in committee. House Joint Resolution 1 was not brought up for discussion or for a vote by the House Judiciary Committee, missing a deadline for it to remain viable.
On 23 April 2013, in Massachusetts, the House rejected 119-38 a bill to reinstate the death penalty.
On 24 April 2013, in Delaware, the House Judiciary Committee has stalled a bill to repeal the death penalty and replace it with terms of life without parole. Members of the Committee took no action on the measure after it appeared it would fail to win passage. On 26 March, the measure barely cleared the Senate on an 11-10 vote after chief sponsor Sen. Karen Peterson removed a controversial provision that would have spared the lives of 17 inmates awaiting execution in Delaware.
On 30 April 2013, in Mississippi, Governor Phil Bryant signed Senate Bill 2223, sponsored by Sen. Chris McDaniel, that adds terrorism to the list of crimes that could lead to the death penalty, if a victim is killed. The House and Senate both passed the final version of the bill on 3 April. The House vote was 113-1, and the Senate vote was 52-0. Mississippi prosecutors already can pursue the death penalty if a victim is killed while certain other felonies are committed – crimes such as rape or armed robbery.
On 14 May 2013, a bill to abolish Nebraska's death penalty perished for the year in the unicameral Legislature when supporters were unable to muster enough votes to end a filibuster against it. On 19 March, the proposal had been approved 7-0 by the Judiciary Committee. Legislative Bill 543 The bill, by Sen. Ernie Chambers of Omaha, would have changed the death penalty to life in prison without the possibility of parole. It was his 37th attempt to do so. None of the current 11 death row inmates are scheduled for execution because of a pending legal challenge involving one of the state's three lethal injection drugs. Nebraska last executed an inmate in 1997.
Methods of Execution
After Nebraska adopted lethal injection as a substitute for the electric chair on 28 May 2009, today all States and the federal government use lethal injection as their primary method of execution.
Some States use a three-drug protocol, others use a single-drug process. The three-drug protocol uses an anaesthetic, followed by pancuronium bromide to paralyze the inmate and potassium chloride to stop the inmate's heart. The one-drug protocol uses a lethal dose of an anaesthetic.
The shortage of drugs for lethal injections throughout the United States forced many States to look for suppliers abroad. But, since 2011, humanitarian organizations working against the death penalty worldwide successfully launched campaigns and legal actions to prevent abroad-manufactured drugs from being exported for the execution of US prisoners.
[For further info, see the chapter “The ‘Humane’ Lethal Injection”]
In some States the “old methods” are still available upon request by the condemned and generally only for crimes committed before the adoption of lethal injection.
The electric chair is still available in 9 States: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia. The gas chamber is still available in 4 States: Arizona, California, Missouri and Wyoming. The firing squad is available in 2 States: Oklahoma and Utah. Hanging is available in 2 States: New Hampshire and Washington.
Criminal procedure
US criminal procedure divides a trial for murder (or any other capital offence) in two separate stages. During the first stage a popular jury decides if the accused is guilty or innocent, and during the second the same jury, the judge or a group of 3 judges (depending on the state) weigh the mitigating and aggravating circumstances and decide on the punishment. Appeals are also divided into two phases: appeals concerning the guilt or innocence of the accused, and those that deal with the degree of punishment. The fact that the laws of an individual state provide life without parole, that is, without the possibility of the prisoner ever being freed, is considered a positive factor, because it makes the granting of clemency that commutes a death penalty to life without parole more probable.
The Supreme Court
In more recent years, the Supreme Court of the United States has made “milestone” decisions, on one side, prohibiting the execution of minors (2005) and the mentally disabled (2002) and, on the other, confirming the constitutionality of lethal injection (2008).
The sentences of the Supreme Court of 2012 and in the first months of 2013, instead, regarded less general situations, specific cases, and none of the sentences brought about substantial changes within the system of capital punishment.
A long series of appeals are expected to be brought before the Court on the only heated legal debate in recent years, the sudden change of protocol that many States are implementing to replace Sodium Thiopental and Pentobarbital. It will take some time before appeals at lower courts arrive in Washington, even though it is difficult to imagine surprising breakthroughs regarding this argument.
On 25 June 2012, the Supreme Court ruled that it is unconstitutional to sentence juveniles to life in prison without parole for murder. The 5-4 decision is in line with others the court has made, including ruling out the death penalty for juveniles and life without parole for young people whose crimes did not involve killing. The decision came in the robbery and murder cases of Evan Miller and Kuntrell Jackson, who were 14 when they were convicted. Miller was convicted of killing a man in Alabama. Jackson was convicted of being an accomplice in an Arkansas robbery that ended in murder.
On 8 January 2013, in the cases Ryan v. Gonzales (Arizona) and Tibbals v. Carter (Ohio), the Supreme Court unanimously rejected indefinite delays in the federal review of death penalty cases when inmates are mentally incompetent to assist their attorneys. Writing for the Court, Justice Clarence Thomas said such appeals are usually based on established facts, not requiring further input from the defendant. “Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner’s competence,” he said. “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshalling relevant arguments, even without their clients’ assistance.” In Carter's case, the Court left open the window for a temporary stay if his appeals rely on evidence outside the court record and if he might regain competence. “If a district court concludes that [Carter’s] claim could substantially benefit from the petitioner’s assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future,” Thomas wrote. “Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the state’s attempts to defend its presumptively valid judgment.”
Exonerations and Commutations
“Exoneree” is a technical term that, in the U.S. justice system, indicates an individual convicted in the first degree but absolved on appeal. As is well noted, appeals in the United States are not one-time, unrepeatable events, but can be presented every time the defence feels that it has discovered new elements relevant to exonerating the condemned. It is not rare that certain “appeals” can be presented 20 years or more after initial sentencing. In some cases, the “exonerees” are obviously innocent (in cases where DNA evidence proves the guilt of someone else, for instance), in other cases, there is dismissal on appeal for “lack of evidence” or because, after so many years from the actual crime, the Public Prosecutor no longer has credible witnesses to testify.
The Death Penalty Information Center (DPIC) keeps a list of these “exonerees”, according to which, since 1973 up to 31 December 2012, there have been 142 inmates condemned to death that have subsequently been exonerated. The average time between sentencing and the recognition of one’s innocence is 9.8 years. In 18 cases, proof of innocence was thanks to new DNA testing.
During 2012, according to the criteria set by the DPIC, there were three exonerations of inmates condemned to death.
On 23 January 2012, the U.S. Supreme Court declined to hear an appeal by the State of Ohio challenging the unconditional writ of habeas corpus and bar to the re-prosecution of Joe D'Ambrosio, thus ending the capital case. He has now been freed from death row with all charges dismissed. He was sentenced to death in 1989 and released from jail on 5 March 2010.
On 28 September 2012, Damon Thibodeaux was freed from death row in Louisiana after an extensive investigation, including DNA testing. Thibodeaux was sentenced to death for the 1996 rape and murder of his cousin. He at first confessed to the attack after a nine-hour interrogation by detectives. He recanted a few hours later and claimed his confession was coerced. Thibodeaux spent 15 years on death row in Angola.
On 21 December 2012, Seth Penalver was acquitted of all charges and freed from Florida's death row the day after, 13 years after being sentenced to death. He was originally charged with a triple murder and armed robbery that occurred in 1994. In 2006, the Florida Supreme Court overturned his conviction because the prosecution had introduced improper evidence at his trial. A video from the crime scene was inconclusive. At Penalver's most recent trial, the found him not guilty of all charges.
As we have seen in the D’Ambrosio case, appeals by the prosecutors can quite delay releases from prison. That way it often happens that prisoners, rather than seeking full exoneration, settle for a deal with prosecutors, and plead guilty to a lesser crime, in order to be sentenced, usually, to “time already served” and be released immediately. To the number of “exonerees” should then be added a much higher number of those who, even though probably innocent, plead guilty to lesser crimes in order to get a fast release. This way they actually get the release, but their case is not considered one of “innocence” these cases are usually listed as “partial innocence”.
During 2012, however, another 3 people, not on the list of the DPIC of exonerated people, were taken off of death row and released from prison.
On 3 March 2012, in South Carolina, Edward Lee Elmore was released from prison after nearly 30 years on Death Row. He agreed to a plea arrangement in which he maintained his innocence but agreed the State could re-convict him of murder in a new trial. In November 2011, the U.S. Court of Appeals for the Fourth Circuit granted him a new trial because of prosecutorial misconduct in handling the evidence. The court found there was “persuasive evidence that the agents were outright dishonest,” and there was “further evidence of police ineptitude and deceit.”
On 6 April 2012, in Alabama, Larry Randell Smith, who had been in prison for 17 years, much of it on death row, was released from prison. Smith was sentenced to death in 1996 in the 1994 killing of a man during a robbery. Recently he had the sentence overturned, and to speed up the release he accepted a deal in which he pleaded guilty to conspiracy to commit robbery and was sentenced to the time already served.
On 31 July 2012, in South Carolina, Joseph Ard, who spent 11 years on South Carolina's death row and a total of 19 years in confinement, was freed from prison. Ard was sentenced to death in 1996 for the 1993 shooting of his pregnant girlfriend. He was granted a re-trial in March 2007. The new jury found Ard guilty of involuntary manslaughter, stating that the shooting was accidental, and the judge sentenced him to time served.
Besides complete exonerations, many condemned received commutations to life imprisonment thanks to political interventions.
On 17 January 2012 in Delaware, Governor Jack Markell granted clemency to Robert Gattis, commuting his death sentence to life without parole. Gattis spent more than 20 years on death row.
On 20 April 2012, in Georgia, the Board of Pardons and Paroles reduced the death sentence of Daniel Greene to life in prison without parole. The Board had stayed his execution, which was set for April 19, in order to further consider his clemency petition. Greene's petition included more than 500 signatures urging clemency and letters from a number of well-respected members of the community. Among the letters was one from a former correctional officer, Randy Foster, who called Greene "as fine a man as I have ever met in my life." Greene had been sentenced to death for the 1991 fatal stabbing of Bernard Walker, a convenience store clerk, during a robbery.
On 10 July 2012, in Ohio, Gov. John Kasich spared John Eley, changing his death sentence to life in prison with no chance of parole. On 20 June, the Ohio Parole Board had rejected clemency for Eley, who had been scheduled to die on 26 July for the 1986 killing of an owner of store. Kasich said he based his decision on Eley acting under the direction of another, and what he called Eley's limited mental capacity. The governor also noted that the former Prosecutor and former Judge who tried Eley, and also a retired police detective had pushed for Eley to be spared.
On 17 December 2012, once again in Ohio, Gov. John Kasich granted clemency to Ronald Post following the recommendation of mercy by the parole board, which said it did not doubt Post's guilt but said there were too many problems with how he was represented 30 years ago. The Governor said all criminal defendants, regardless of the heinousness of the crimes, deserve an adequate defense. "This decision should not be viewed by anyone as diminishing this awful crime or the pain it has caused," Kasich said. Post was scheduled to die on 16 January 2013 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.
The Cost of the Death Penalty
Besides the consideration of misplaced justice, which has been the subject of political debate in recent years, questions of the “cost of the death penalty” are coming to the fore.
As is well known, in contrast to the European systems of justice, in the United States the various courts have very precise budgets, which must be accounted for to the last cent. If prosecutors wish to try cases involving the death sentence they must provide more evidence, more lab results, more testimony and the State must provide the accused with better legal counsel. This all has its costs, which increase in successive phases of the legal process, because those who risk death have a right to increased free legal assistance, lab analysis to contrast that of the Prosecution (at cost to the State), and to hire expert witnesses (also at cost to the State) and to present a series of appeals and recourses that are not available to those who risk imprisonment. This means that when prosecutors begin death penalty cases, they start a process which drains funds from the State, and that, often, because of these expenses, there are fewer funds for other activities.
Studies have calculated that approximately 50% of the death sentences handed down eventually is transformed into sentences of life imprisonment after the appeals process. Other studies have shown, even in cases where the death sentence “holds,” keeping a person in prison for life costs twenty times less than keeping someone on death row for a few years and then putting them to death. On average, in the United States a death sentence costs between 1 and 3 million dollars, as compared to the 500,000 dollars a sentence of life without parole costs taxpayers.
The question of “cost” is bound to become more compelling in the years to come and, together with the question of errors of justice, should bring about important changes. In many interviews with politicians and in bills presented in numerous States, the problems related to the “cost of the death penalty” came under focus with consideration of an alternative: giving up on capital punishment, which usually involves people for which there is already ample proof for conviction and using the money saved to solve cases where criminals have yet to be identified. Of course, there is always the media to show that the family of the victim after an execution is “very satisfied and finally relieved,” but to this, which always helps politicians garner consensus, some associations of victims’ families are answering by saying that, in the interest of the victims, it would be better to direct funds to “cold cases,” those thousands of unsolved cases that present themselves every year.
A comprehensive analysis of the death penalty’s costs by a senior federal judge and a law professor estimated that taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then. The study’s authors, U.S. 9th Circuit Judge Arthur Alarcon and Loyola Law School professor Paula Mitchell have worked more than four years on the data. They have calculated that death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole. That is because capital trials are much more expensive, because the appeals guaranteed to condemned prisoners are more exhaustive, because of higher fees for better qualified public defenders, and higher cost of detention. Alarcon, who prosecuted capital cases as a Los Angeles County deputy district attorney in the 1950s, is not opposed to capital punishment. He said approached the analysis from an impartial academic perspective, aiming solely to educate voters about what they are spending on death row. The authors outlined that keeping the death penalty system as it is today would bring the extra costs of death penalty up to an average 85 million dollars per year, while abolishing it could save taxpayers about $1 billion every five or six years.
A recent study of the death penalty in Nevada compared the costs of defending capital and non-capital murder cases. The study, published on 21 February 2012, has calculated that defending the average capital murder case in Clark County cost $229,800 for a Public Defender or $287,250 for appointed counsel. The additional cost of capital murder cases was $170,000 to $212,000 per case compared to the cost of a non-capital murder case in the same county. The 80 pending capital murder cases in Clark County will cost approximately $15 million more than if they were prosecuted without seeking the death penalty. The author, Dr. Terance Miethe of the Department of Criminal Justice at the University of Nevada, Las Vegas, noted that the statistical extrapolation did not cover the full array of time spent in capital cases by other court officials (e.g. judges, prosecutors, jurors), staff and administrative personnel, mitigation specialists, investigators, and expert witnesses. It also did not take into account the additional costs of capital litigation that are associated with state/federal appeals and the extra costs of imprisonment of death eligible inmates pending trial and sentencing.
The Stance of the Victims’ Families…and the “Executioner”
Perhaps, the most unexpected stance on the death penalty came from the family members of victims.
On 12 April 2012, the Associated Press has underlined the role of victim’s families in the abolition of death penalty in Connecticut. Elizabeth Brancato, for instance, has been a lifelong opponent of capital punishment despite the murder of her mother in 1979. Brancato had lobbied lawmakers for years, becoming more resolved against capital punishment as she met families of other victims frustrated by endless appeals. She also started a blog to highlight the voices of other victims’ relatives in favour of repeal that she felt were overshadowed in the debate. She was at the statehouse on as the State legislature gave final approval to the repeal bill. A week earlier, she was in the gallery when it cleared its biggest hurdle with an early morning vote in the State Senate. “It was one of the best moments of my life,” Brancato said. Brancato is among roughly 180 relatives of crime victims who pushed for repeal in private meetings with lawmakers, via petition drives and at news conferences.
Also in Maryland, about 50 victims’ relatives have had a very important role to get the 18th abolition of capital punishment in the United States.
Relatives who oppose the death penalty were integral to abolition in States like New Jersey and New Mexico.
The Relationship between Crime and Punishment
The latest FBI Uniform Crime Report indicates a decrease of 1.7 percent in the number of homicides for the first 6 months of 2012 when compared with figures reported for the same time in 2011.
The decrease of murders had been more marked in previous years: in the first semester of 2011 the decrease had been of 5.7% over the year before; in 2010 the decrease had been of 7.1%; in 2009 of 10%; and in 2008 of 4.4.
Breaking down the data by region and using the classic division of the United States (Northeast, Midwest, South, West), the South, region that carries out, on average, 80% of all the executions in the United States, the decrease of homicides has been higher (-4.8), while the Northeast, region that has not carried out executions and has a number of States where the death penalty has been abolished, the lower decrease (-2.4%). Instead, the killings have increased in the Midwest (+0.9) and the West (+1.9).
On 29 October 2012, the U.S. Justice Department released the annual FBI Uniform Crime Report for 2011, indicating that an estimated 14,612 persons were murdered in the United States. This was a 0.7 percent decrease from the 2010 estimate, a 14.7 percent decline from the 2007 figure, and a 10.0 percent decrease from the 2002 estimate. There were 4.7 murders per 100,000 inhabitants, a 1.5 percent decrease from the 2010 rate. Compared with the 2007 rate, the murder rate declined 17.4 percent, and compared with the 2002 rate, the murder rate decreased 16.8 percent. This decline occurred at a time when the use of the death penalty is also decreasing nationally. The Northeast region, which uses the death penalty the least, had the lowest murder rate of the 4 geographic regions (3.9 per 100,000 inhabitants). By contrast, the South, which carries out more executions than any other region, had the highest murder rate (5.5). The murder rate in the West remained about the same (4.2), while the rate in the Midwest increased slightly (4.5). Four of the five States with the highest murder rates are death-penalty States, while four of the five States with the lowest murder rates are States without the death penalty.
Texas, the State that for years has carried out more 40% of America’s executions on its own, in 2011 had a murder rate of 4.4 per 100,000 people.
This fact is interpreted by many as proof that the death penalty has no impact as a deterrent, given that where it is not in effect, there are actually less homicides (almost 50% less) compared to where it is used heavily and with certain ostentation.
Opinion Polls
In recent years, opinion polls show a basic ambivalence: when given a simple “yes” or “no” to whether one supports the death penalty, the answer “yes” maintains favour, and its decline, year by year, is slow. Instead, when opinion polls include a question offering life imprisonment without parole, things change drastically. Many people are “on principle” in favour of the death penalty, however, when asked to reflect on the possibility of innocent people being put to death, they feel that life imprisonment without parole is more appropriate. When adding those opposed to the death penalty “conventionally” to those, who, while approving of the death penalty in principle, but opting for life imprisonment without parole, the percentage against the actual practice of the death penalty represents a healthy majority. It is a subtle difference, but it is safe to say that in the U.S. the percentage in favour of the death penalty “on principle” is slow in decreasing, while the percentage of those “contrary in practice” is growing rapidly.
The Gallup Poll has recorded the opinion of Americans on the death penalty since 1936. It is the main point of reference at national level in the United States.
Gallup’s 2012 Crime Survey found that 63% of Americans back the death penalty.
The latest Gallup Poll (made public on 9 January 2013) measured Americans' abstract support for the death penalty at 63%, the second-lowest level of support for capital punishment since 1978, and a significant decline from 1994, when 80% of respondents were in favour of the death penalty. Gallup noted the results of the poll may have been affected by the fact that it was conducted between 19 and 22 December 2012, a few days after the shootings in Newtown, Connecticut, where a deranged man on 14 December had killed 20 children and 6 adults. In 2011 Gallup found 61% in support of the death penalty, the lowest level in 40 years.
When Gallup and other polls offer respondents a choice of the proper punishment for murder – the death penalty or life in prison without parole – the public is nearly evenly split on the question. When Gallup gave people a choice in 2010 between sentencing a murderer to death or life without parole, only 49% chose capital punishment.
Among the groups most supportive of the death penalty in this latest Gallup poll were conservatives, Republicans, men, older respondents, and those with a high school or less education. The margin of error was +4 percentage points.
Single-state polls are published frequently, but the results don’t vary much from the national level.
[For further information on capital punishment in the United States of America, see the Death Penalty Information Center’s website]
On 20 December 2012, the United States voted against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly.
The most recent abolition of the death penalty took place in Maryland in May 2013, and in Connecticut in April 2012.
The death penalty is still in effect in 32 States and in 2 jurisdictions (the Federal Government and the Military).
Although the United States is considered a death penalty country, executions are rare or non-existent in much of the nation: 28 of 53 jurisdictions in the U.S. (50 States, the District of Columbia, the Federal Government, and the Military Justice System) either do not have the death penalty or have not carried out an execution in at least 10 years. Most of those have not carried out an execution since the death penalty was reinstated in 1976. An additional 5 have not had an execution in 5 years, for a total of 33 jurisdictions with no executions in that time.
Only 9 States carried out an execution in 2012, compared to 13 in 2011, and only 4 States carried out more than 3, mostly in the South.
The number of inmates on death row also decreased. As of 1 January 2013, there were 3,125 inmates under a sentence of death, a decrease of 64 from 1 January 2012.
Executions
In 2012, there were 43 executions, the same as in 2011, but fewer states carried them out.
Executions in 2012 took place in only 9 of the 32 States with the death penalty: Texas (15); Arizona (6); Oklahoma (6); Mississippi (6); Ohio (3); Florida (3); South Dakota (2); Delaware (1); Idaho (1).
In 2012, no executions took place in 5 States – Alabama, Georgia, Missouri, South Carolina and Virginia – that carried out executions in 2011. On the other hand, South Dakota resumed executions in 2012 after a de facto moratorium dating back to 2007.
Texas, since ever the State with more executions, had 24 in 2009, 17 in 2010, and “only” 13 in 2011.
All executions in 2012 were carried out by lethal injection, and all used a relatively new drug, pentobarbital, either alone or in combination with other drugs.
All executions in 2012 concerned males. Their average age was 49 years, almost 5 years higher than in 2011. The average age of those executed is increasing also because the average time between sentencing and execution continues to increase. In 2012, this lag has reached 16.9 years, two more than the previous year, and almost 3 years more than in 2010.
As for race, 27 of those executed in 2012 were White, 11 Black, and 5 Latino. Only 16% of the executions stemmed from the murder of a black victim, even though blacks are the victims in about 50% of murders.
In the first six months of 2013 (as of 29 May), thirteen executions were carried out in six States.
Death Sentences
According to the Death Penalty Information Center, 78 people were sentenced to death in 2012, the second lowest number of sentences since the death penalty was reinstated in 1976. In 2011, 76 new sentences of death were handed down, a steep decrease from the past, when they never came under 100. In 2010, there were 114 and there were 112 in 2009.
In 2012, as usual, a big part of the sentences (59%) were handed down in the South. However, prominent death penalty States in the South, including North Carolina, South Carolina, and Virginia (which has been second to Texas in executions) remarkably had no death sentences and no executions in 2012. Georgia had two death sentences and no executions; Louisiana had one sentence and no executions. Death sentences, like executions, were largely clustered in a few states. Just five States – Florida (22), California (13), Texas (9), Pennsylvania (7), and Alabama (6) – accounted for 73% of the country’s death sentences. A death sentence was issued at federal level.
Death Row
The January 2013 edition of the NAACP Legal Defense Fund's Death Row USA showed a continuing decline in the number of people on death rows across the country.
As of 1 January 2013, there were 3,125 inmates under a sentence of death, a decrease of 64 from 3,189 reported on 1 January 2012. Over the last decade, the size of death row has dropped almost 16%, from 3,703 inmates in 2000 to 3,125 in 2013.
California continued to have the largest death row population (727), followed by Florida (413), Texas (300), and Pennsylvania (202). Neither California nor Pennsylvania has carried out an execution in at least 7 years.
Along racial lines, 43.23% of inmates are white, 41.89% are black, 12.38% are Latin-American and 2.48% belong to other ethnic groups (Native American, Asian…). Divided by gender, there are 63 women and 3,062 men on the United States’ death rows.
Abolitions and moratoriums
In April 2012, Connecticut abolished the death penalty, and in May 2013 Maryland became the sixth State in six years to abolish it. The other four States that ended capital punishment recently are New Jersey (2007), New York (2007), New Mexico (2009), and Illinois (2011). In Oregon, the Governor declared a three-year moratorium on all executions in November 2011.
Of the 34 jurisdictions where the death penalty is still in effect, 9 have not carried out an execution in more than ten years: Colorado (last execution in 1997), Kansas (1965), Nebraska (1997), New Hampshire (1939), Oregon (1997), Pennsylvania (1999), Wyoming (1992), U.S. Federal Government (2003), and U.S. Military (1961).
Since capital punishment was reintroduced in 1976, three States have executed only "volunteers", i.e. death row inmates who voluntarily asked to hasten on execution process: Pennsylvania executed 3 people, Oregon 2, and Connecticut 1.
Legislation
One of the most important facts of 2012 was certainly the referendum in California on the abolition of the death penalty.
On 6 November 2012, California’s Proposition 34, an initiative to replace the death penalty with a sentence of life without parole and to require inmates to work in prison to help pay restitution to the families of victims, was narrowly defeated by a vote of 52.7% to 47.3%.
The proposed law was called SAFE California, an acronym for Savings, Accountability and Full Enforcement. It needed 504,000 valid signatures to qualify for ballot, but its proponents gathered nearly 800,000.
The proponents have calculated that death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole. The death penalty repeal could re-allocate the money saved to a fund for murder victims’ services and law enforcement.
Although the result means the death penalty will continue in the State, the percent of voters supporting repeal represents a dramatic shift away from capital punishment. The referendum, which indicated just more than half of voters are in favour of keeping the death penalty, followed a broader trend of diminishing public support for the punishment. By contrast, the 1978 ballot initiative that enacted California’s death penalty statute passed with the support of 71% of the voters.
Governor Jerry Brown said he had voted in favour of repealing the death penalty, after declining during the campaign to say how he would vote on the measure. Despite his longstanding moral reservations about capital punishment, the Democratic Governor enforced the death penalty as State Attorney General and promised during his gubernatorial campaign in 2010 to uphold the law if elected. Near his home in the Oakland hills, the Governor was asked about Proposition 34 outside the fire station where he cast his ballot. "I voted 'Yes,'" he said. "Of course." Brown's vote was as expected. As Hovernor from 1975 to 1983, Jerry Brown vetoed death penalty legislation, though his veto was overridden by the Legislature.
On 30 May 2013, a California appeals court upheld a judge's ruling prohibiting the state from executing condemned inmates until it adopts a new lethal-injection protocol. In December 2012, the Chief Justice of California's Supreme Court, Tani Cantil-Sakauye, had said that she did not expect executions in California to resume for at least three years because of problems with the lethal injection process. California has already not carried out an execution in seven years.
During 2012 and the first months of 2013, there were many legislative proposals concerning the death penalty, some towards abolition, others to create stricter norms regarding its application and others to facilitate its application. Many of these bills were short-lived, blocked in the preliminary phases of the legislative review process.
On 22 February 2012, in Virginia, a sharply divided Senate committee rejected a bill to expand the death penalty. The Courts of Justice Committee voted 8-7 to kill the legislation to redefine Virginia’s triggerman rule. Republican Sen. Mark Obenshain has tried for years to repeal the triggerman rule, which allows only the person who does the actual killing to receive the death penalty. When it has advanced, the measure was vetoed by Gov. Timothy M. Kaine (see March 26, 2006, march 5, 2008 and March 27, 2009). This year’s version of the bill would have allowed the death penalty for co-conspirators only in cases where a victim was raped and murdered. The new Governor, Bob McDonnell, a republican who took office in Jan. 2010, said he would sign it into law if given the chance.
On 2 March 2012, in South Dakota, Governor Dennis Daugaard ratified a new law (SB42) that prevents death-row inmates from filing repeated appeals in an effort to delay their executions. Attorney General Marty Jackley proposed the measure, saying limits are needed in death-penalty cases because some cases are tied up in appeals for 2 decades. Under the new law convicts who lose a first direct appeal usually could file only one secondary appeal. State law currently puts no limit on those secondary appeals, called habeas corpus petitions. Those petitions generally argue that a convict’s constitutional rights were violated, and they often contend the person’s previous lawyers made mistakes. The bill would limit convicts to one secondary appeal, unless new evidence is discovered or an appeals court recognizes a new constitutional right that would apply to the case. Those secondary appeals also would have to be filed within two years of when the first direct appeal was decided or new evidence was discovered. The attorney general said the bill’s limits on secondary appeals are the same as those applied in 31 other States and the federal court system.
On 22 March 2012, the Kentucky House approved a resolution (House Concurrent Resolution 173) to establish a task force to develop a plan for implementing the recommendations of an American Bar Association report on the death penalty released on 7 December. The resolution offered by Jesse Crenshaw, a Lexington Democrat, passed by a 73-18 vote. Crenshaw said the ABA's Kentucky Death Penalty Assessment Report offered suggestions for improvements to the way death penalty cases are handled, including improvements in the areas of retaining evidence and clarifying instructions to juries. Between 1976 and 2011 in Kentucky, 78 people were sentenced to death, but 50 of those cases were overturned.
On 2 July 2012, in North Carolina, the House and Senate voted separately to override Gov. Bev Perdue's veto of changes to the 2009 Racial Justice Act, the 2009 law that allows death-row inmates to try to convert their sentences to life in prison without parole by using statistical proof of racial bias. Under the latest law, sponsored by Republican lawmakers, any statistics used would be limited to the county or prosecutorial district where a trial occurred, instead of from across North Carolina. Lawmakers who supported the Racial Justice Act said the changes gutted the law and will make it impossible for defendants to prove discrimination in the sentencing of a convicted murderer or in the composition of jurors hearing a case. On 3 April 2013, the State Senate voted to repeal the remnants of the Racial Justice Act. Senate Bill 306 now goes to the state House. If passed, the legislation would restart executions in North Carolina, where there has been an unofficial moratorium since 2006.
On 7 February 2013, in Florida, in a 9-4 vote, the House Criminal Justice Subcommittee voted against a bill (HB 4005) that would have abolished the death penalty. But the rare vote to kill a bill in committee, rather than just bottling it up never to be heard, gave death penalty opponents their 1st chance to extensively argue for a repeal, following several years in which the measure's sponsor, Rep. Michelle Rehwinkel Vasilinda, has been unable to persuade Republican leaders to put the bill before a committee. On 29 April, the Florida Senate passed 28-10 the Timely Justice Act of 2013 to accelerate the State's capital punishment process that was criticized for allowing some condemned inmates to languish for decades on death row. The House passed the bill by an 84-34 vote on 25 April. The bill went to Gov. Rick Scott for his consideration. The Timely Justice Act creates a new process that establishes a system to determine which inmates on death row have exhausted their post-conviction appeals and requires the Governor to sign a death warrant within 30 days, after a Supreme Court review. The execution would then have to take place within 180 days. As of early March, Florida had 404 inmates on death row, with 155 in custody for more than 20 years, and 10 who had been on death row for more than 35 years.
On 22 February 2013, in Montana, the House Judiciary Committee rejected the proposal to replace the death penalty with life in prison without the possibility of parole. It is the same body that stalled a similar proposal that made it all the way to the senate in 2009 and 2011. House Bill 370 by Rep. Doug Kary failed on an 11-9 vote.
On 26 March 26 2013, in Colorado, the Judiciary Committee of the Colorado House of Representatives rejected 6-4 a bill to repeal the death penalty. Rep. Claire Levy, D, and Rep. Jovan Melton, D, sponsored the measure. Two Democrats joined Republicans in opposition to the measure.
On 26 March 2013, in Oklahoma, the House overwhelmingly approved a bill to make the death penalty an option in 1st-degree murder cases only if the State is seeking it. Current law tells judges to consider the penalty even if the state doesn't ask for it. The chamber voted 82-10 in support of the proposal from Rep. Scott Biggs. It has already passed the Senate and now waits for Gov. Mary Fallin's signature to become law.
On 18 April 2013, a bill sponsored by Rep. Mitch Greenlick seeking to ask voters to repeal Oregon's death penalty died in committee. House Joint Resolution 1 was not brought up for discussion or for a vote by the House Judiciary Committee, missing a deadline for it to remain viable.
On 23 April 2013, in Massachusetts, the House rejected 119-38 a bill to reinstate the death penalty.
On 24 April 2013, in Delaware, the House Judiciary Committee has stalled a bill to repeal the death penalty and replace it with terms of life without parole. Members of the Committee took no action on the measure after it appeared it would fail to win passage. On 26 March, the measure barely cleared the Senate on an 11-10 vote after chief sponsor Sen. Karen Peterson removed a controversial provision that would have spared the lives of 17 inmates awaiting execution in Delaware.
On 30 April 2013, in Mississippi, Governor Phil Bryant signed Senate Bill 2223, sponsored by Sen. Chris McDaniel, that adds terrorism to the list of crimes that could lead to the death penalty, if a victim is killed. The House and Senate both passed the final version of the bill on 3 April. The House vote was 113-1, and the Senate vote was 52-0. Mississippi prosecutors already can pursue the death penalty if a victim is killed while certain other felonies are committed – crimes such as rape or armed robbery.
On 14 May 2013, a bill to abolish Nebraska's death penalty perished for the year in the unicameral Legislature when supporters were unable to muster enough votes to end a filibuster against it. On 19 March, the proposal had been approved 7-0 by the Judiciary Committee. Legislative Bill 543 The bill, by Sen. Ernie Chambers of Omaha, would have changed the death penalty to life in prison without the possibility of parole. It was his 37th attempt to do so. None of the current 11 death row inmates are scheduled for execution because of a pending legal challenge involving one of the state's three lethal injection drugs. Nebraska last executed an inmate in 1997.
Methods of Execution
After Nebraska adopted lethal injection as a substitute for the electric chair on 28 May 2009, today all States and the federal government use lethal injection as their primary method of execution.
Some States use a three-drug protocol, others use a single-drug process. The three-drug protocol uses an anaesthetic, followed by pancuronium bromide to paralyze the inmate and potassium chloride to stop the inmate's heart. The one-drug protocol uses a lethal dose of an anaesthetic.
The shortage of drugs for lethal injections throughout the United States forced many States to look for suppliers abroad. But, since 2011, humanitarian organizations working against the death penalty worldwide successfully launched campaigns and legal actions to prevent abroad-manufactured drugs from being exported for the execution of US prisoners.
[For further info, see the chapter “The ‘Humane’ Lethal Injection”]
In some States the “old methods” are still available upon request by the condemned and generally only for crimes committed before the adoption of lethal injection.
The electric chair is still available in 9 States: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia. The gas chamber is still available in 4 States: Arizona, California, Missouri and Wyoming. The firing squad is available in 2 States: Oklahoma and Utah. Hanging is available in 2 States: New Hampshire and Washington.
Criminal procedure
US criminal procedure divides a trial for murder (or any other capital offence) in two separate stages. During the first stage a popular jury decides if the accused is guilty or innocent, and during the second the same jury, the judge or a group of 3 judges (depending on the state) weigh the mitigating and aggravating circumstances and decide on the punishment. Appeals are also divided into two phases: appeals concerning the guilt or innocence of the accused, and those that deal with the degree of punishment. The fact that the laws of an individual state provide life without parole, that is, without the possibility of the prisoner ever being freed, is considered a positive factor, because it makes the granting of clemency that commutes a death penalty to life without parole more probable.
The Supreme Court
In more recent years, the Supreme Court of the United States has made “milestone” decisions, on one side, prohibiting the execution of minors (2005) and the mentally disabled (2002) and, on the other, confirming the constitutionality of lethal injection (2008).
The sentences of the Supreme Court of 2012 and in the first months of 2013, instead, regarded less general situations, specific cases, and none of the sentences brought about substantial changes within the system of capital punishment.
A long series of appeals are expected to be brought before the Court on the only heated legal debate in recent years, the sudden change of protocol that many States are implementing to replace Sodium Thiopental and Pentobarbital. It will take some time before appeals at lower courts arrive in Washington, even though it is difficult to imagine surprising breakthroughs regarding this argument.
On 25 June 2012, the Supreme Court ruled that it is unconstitutional to sentence juveniles to life in prison without parole for murder. The 5-4 decision is in line with others the court has made, including ruling out the death penalty for juveniles and life without parole for young people whose crimes did not involve killing. The decision came in the robbery and murder cases of Evan Miller and Kuntrell Jackson, who were 14 when they were convicted. Miller was convicted of killing a man in Alabama. Jackson was convicted of being an accomplice in an Arkansas robbery that ended in murder.
On 8 January 2013, in the cases Ryan v. Gonzales (Arizona) and Tibbals v. Carter (Ohio), the Supreme Court unanimously rejected indefinite delays in the federal review of death penalty cases when inmates are mentally incompetent to assist their attorneys. Writing for the Court, Justice Clarence Thomas said such appeals are usually based on established facts, not requiring further input from the defendant. “Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner’s competence,” he said. “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshalling relevant arguments, even without their clients’ assistance.” In Carter's case, the Court left open the window for a temporary stay if his appeals rely on evidence outside the court record and if he might regain competence. “If a district court concludes that [Carter’s] claim could substantially benefit from the petitioner’s assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future,” Thomas wrote. “Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the state’s attempts to defend its presumptively valid judgment.”
Exonerations and Commutations
“Exoneree” is a technical term that, in the U.S. justice system, indicates an individual convicted in the first degree but absolved on appeal. As is well noted, appeals in the United States are not one-time, unrepeatable events, but can be presented every time the defence feels that it has discovered new elements relevant to exonerating the condemned. It is not rare that certain “appeals” can be presented 20 years or more after initial sentencing. In some cases, the “exonerees” are obviously innocent (in cases where DNA evidence proves the guilt of someone else, for instance), in other cases, there is dismissal on appeal for “lack of evidence” or because, after so many years from the actual crime, the Public Prosecutor no longer has credible witnesses to testify.
The Death Penalty Information Center (DPIC) keeps a list of these “exonerees”, according to which, since 1973 up to 31 December 2012, there have been 142 inmates condemned to death that have subsequently been exonerated. The average time between sentencing and the recognition of one’s innocence is 9.8 years. In 18 cases, proof of innocence was thanks to new DNA testing.
During 2012, according to the criteria set by the DPIC, there were three exonerations of inmates condemned to death.
On 23 January 2012, the U.S. Supreme Court declined to hear an appeal by the State of Ohio challenging the unconditional writ of habeas corpus and bar to the re-prosecution of Joe D'Ambrosio, thus ending the capital case. He has now been freed from death row with all charges dismissed. He was sentenced to death in 1989 and released from jail on 5 March 2010.
On 28 September 2012, Damon Thibodeaux was freed from death row in Louisiana after an extensive investigation, including DNA testing. Thibodeaux was sentenced to death for the 1996 rape and murder of his cousin. He at first confessed to the attack after a nine-hour interrogation by detectives. He recanted a few hours later and claimed his confession was coerced. Thibodeaux spent 15 years on death row in Angola.
On 21 December 2012, Seth Penalver was acquitted of all charges and freed from Florida's death row the day after, 13 years after being sentenced to death. He was originally charged with a triple murder and armed robbery that occurred in 1994. In 2006, the Florida Supreme Court overturned his conviction because the prosecution had introduced improper evidence at his trial. A video from the crime scene was inconclusive. At Penalver's most recent trial, the found him not guilty of all charges.
As we have seen in the D’Ambrosio case, appeals by the prosecutors can quite delay releases from prison. That way it often happens that prisoners, rather than seeking full exoneration, settle for a deal with prosecutors, and plead guilty to a lesser crime, in order to be sentenced, usually, to “time already served” and be released immediately. To the number of “exonerees” should then be added a much higher number of those who, even though probably innocent, plead guilty to lesser crimes in order to get a fast release. This way they actually get the release, but their case is not considered one of “innocence” these cases are usually listed as “partial innocence”.
During 2012, however, another 3 people, not on the list of the DPIC of exonerated people, were taken off of death row and released from prison.
On 3 March 2012, in South Carolina, Edward Lee Elmore was released from prison after nearly 30 years on Death Row. He agreed to a plea arrangement in which he maintained his innocence but agreed the State could re-convict him of murder in a new trial. In November 2011, the U.S. Court of Appeals for the Fourth Circuit granted him a new trial because of prosecutorial misconduct in handling the evidence. The court found there was “persuasive evidence that the agents were outright dishonest,” and there was “further evidence of police ineptitude and deceit.”
On 6 April 2012, in Alabama, Larry Randell Smith, who had been in prison for 17 years, much of it on death row, was released from prison. Smith was sentenced to death in 1996 in the 1994 killing of a man during a robbery. Recently he had the sentence overturned, and to speed up the release he accepted a deal in which he pleaded guilty to conspiracy to commit robbery and was sentenced to the time already served.
On 31 July 2012, in South Carolina, Joseph Ard, who spent 11 years on South Carolina's death row and a total of 19 years in confinement, was freed from prison. Ard was sentenced to death in 1996 for the 1993 shooting of his pregnant girlfriend. He was granted a re-trial in March 2007. The new jury found Ard guilty of involuntary manslaughter, stating that the shooting was accidental, and the judge sentenced him to time served.
Besides complete exonerations, many condemned received commutations to life imprisonment thanks to political interventions.
On 17 January 2012 in Delaware, Governor Jack Markell granted clemency to Robert Gattis, commuting his death sentence to life without parole. Gattis spent more than 20 years on death row.
On 20 April 2012, in Georgia, the Board of Pardons and Paroles reduced the death sentence of Daniel Greene to life in prison without parole. The Board had stayed his execution, which was set for April 19, in order to further consider his clemency petition. Greene's petition included more than 500 signatures urging clemency and letters from a number of well-respected members of the community. Among the letters was one from a former correctional officer, Randy Foster, who called Greene "as fine a man as I have ever met in my life." Greene had been sentenced to death for the 1991 fatal stabbing of Bernard Walker, a convenience store clerk, during a robbery.
On 10 July 2012, in Ohio, Gov. John Kasich spared John Eley, changing his death sentence to life in prison with no chance of parole. On 20 June, the Ohio Parole Board had rejected clemency for Eley, who had been scheduled to die on 26 July for the 1986 killing of an owner of store. Kasich said he based his decision on Eley acting under the direction of another, and what he called Eley's limited mental capacity. The governor also noted that the former Prosecutor and former Judge who tried Eley, and also a retired police detective had pushed for Eley to be spared.
On 17 December 2012, once again in Ohio, Gov. John Kasich granted clemency to Ronald Post following the recommendation of mercy by the parole board, which said it did not doubt Post's guilt but said there were too many problems with how he was represented 30 years ago. The Governor said all criminal defendants, regardless of the heinousness of the crimes, deserve an adequate defense. "This decision should not be viewed by anyone as diminishing this awful crime or the pain it has caused," Kasich said. Post was scheduled to die on 16 January 2013 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.
The Cost of the Death Penalty
Besides the consideration of misplaced justice, which has been the subject of political debate in recent years, questions of the “cost of the death penalty” are coming to the fore.
As is well known, in contrast to the European systems of justice, in the United States the various courts have very precise budgets, which must be accounted for to the last cent. If prosecutors wish to try cases involving the death sentence they must provide more evidence, more lab results, more testimony and the State must provide the accused with better legal counsel. This all has its costs, which increase in successive phases of the legal process, because those who risk death have a right to increased free legal assistance, lab analysis to contrast that of the Prosecution (at cost to the State), and to hire expert witnesses (also at cost to the State) and to present a series of appeals and recourses that are not available to those who risk imprisonment. This means that when prosecutors begin death penalty cases, they start a process which drains funds from the State, and that, often, because of these expenses, there are fewer funds for other activities.
Studies have calculated that approximately 50% of the death sentences handed down eventually is transformed into sentences of life imprisonment after the appeals process. Other studies have shown, even in cases where the death sentence “holds,” keeping a person in prison for life costs twenty times less than keeping someone on death row for a few years and then putting them to death. On average, in the United States a death sentence costs between 1 and 3 million dollars, as compared to the 500,000 dollars a sentence of life without parole costs taxpayers.
The question of “cost” is bound to become more compelling in the years to come and, together with the question of errors of justice, should bring about important changes. In many interviews with politicians and in bills presented in numerous States, the problems related to the “cost of the death penalty” came under focus with consideration of an alternative: giving up on capital punishment, which usually involves people for which there is already ample proof for conviction and using the money saved to solve cases where criminals have yet to be identified. Of course, there is always the media to show that the family of the victim after an execution is “very satisfied and finally relieved,” but to this, which always helps politicians garner consensus, some associations of victims’ families are answering by saying that, in the interest of the victims, it would be better to direct funds to “cold cases,” those thousands of unsolved cases that present themselves every year.
A comprehensive analysis of the death penalty’s costs by a senior federal judge and a law professor estimated that taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then. The study’s authors, U.S. 9th Circuit Judge Arthur Alarcon and Loyola Law School professor Paula Mitchell have worked more than four years on the data. They have calculated that death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole. That is because capital trials are much more expensive, because the appeals guaranteed to condemned prisoners are more exhaustive, because of higher fees for better qualified public defenders, and higher cost of detention. Alarcon, who prosecuted capital cases as a Los Angeles County deputy district attorney in the 1950s, is not opposed to capital punishment. He said approached the analysis from an impartial academic perspective, aiming solely to educate voters about what they are spending on death row. The authors outlined that keeping the death penalty system as it is today would bring the extra costs of death penalty up to an average 85 million dollars per year, while abolishing it could save taxpayers about $1 billion every five or six years.
A recent study of the death penalty in Nevada compared the costs of defending capital and non-capital murder cases. The study, published on 21 February 2012, has calculated that defending the average capital murder case in Clark County cost $229,800 for a Public Defender or $287,250 for appointed counsel. The additional cost of capital murder cases was $170,000 to $212,000 per case compared to the cost of a non-capital murder case in the same county. The 80 pending capital murder cases in Clark County will cost approximately $15 million more than if they were prosecuted without seeking the death penalty. The author, Dr. Terance Miethe of the Department of Criminal Justice at the University of Nevada, Las Vegas, noted that the statistical extrapolation did not cover the full array of time spent in capital cases by other court officials (e.g. judges, prosecutors, jurors), staff and administrative personnel, mitigation specialists, investigators, and expert witnesses. It also did not take into account the additional costs of capital litigation that are associated with state/federal appeals and the extra costs of imprisonment of death eligible inmates pending trial and sentencing.
The Stance of the Victims’ Families…and the “Executioner”
Perhaps, the most unexpected stance on the death penalty came from the family members of victims.
On 12 April 2012, the Associated Press has underlined the role of victim’s families in the abolition of death penalty in Connecticut. Elizabeth Brancato, for instance, has been a lifelong opponent of capital punishment despite the murder of her mother in 1979. Brancato had lobbied lawmakers for years, becoming more resolved against capital punishment as she met families of other victims frustrated by endless appeals. She also started a blog to highlight the voices of other victims’ relatives in favour of repeal that she felt were overshadowed in the debate. She was at the statehouse on as the State legislature gave final approval to the repeal bill. A week earlier, she was in the gallery when it cleared its biggest hurdle with an early morning vote in the State Senate. “It was one of the best moments of my life,” Brancato said. Brancato is among roughly 180 relatives of crime victims who pushed for repeal in private meetings with lawmakers, via petition drives and at news conferences.
Also in Maryland, about 50 victims’ relatives have had a very important role to get the 18th abolition of capital punishment in the United States.
Relatives who oppose the death penalty were integral to abolition in States like New Jersey and New Mexico.
The Relationship between Crime and Punishment
The latest FBI Uniform Crime Report indicates a decrease of 1.7 percent in the number of homicides for the first 6 months of 2012 when compared with figures reported for the same time in 2011.
The decrease of murders had been more marked in previous years: in the first semester of 2011 the decrease had been of 5.7% over the year before; in 2010 the decrease had been of 7.1%; in 2009 of 10%; and in 2008 of 4.4.
Breaking down the data by region and using the classic division of the United States (Northeast, Midwest, South, West), the South, region that carries out, on average, 80% of all the executions in the United States, the decrease of homicides has been higher (-4.8), while the Northeast, region that has not carried out executions and has a number of States where the death penalty has been abolished, the lower decrease (-2.4%). Instead, the killings have increased in the Midwest (+0.9) and the West (+1.9).
On 29 October 2012, the U.S. Justice Department released the annual FBI Uniform Crime Report for 2011, indicating that an estimated 14,612 persons were murdered in the United States. This was a 0.7 percent decrease from the 2010 estimate, a 14.7 percent decline from the 2007 figure, and a 10.0 percent decrease from the 2002 estimate. There were 4.7 murders per 100,000 inhabitants, a 1.5 percent decrease from the 2010 rate. Compared with the 2007 rate, the murder rate declined 17.4 percent, and compared with the 2002 rate, the murder rate decreased 16.8 percent. This decline occurred at a time when the use of the death penalty is also decreasing nationally. The Northeast region, which uses the death penalty the least, had the lowest murder rate of the 4 geographic regions (3.9 per 100,000 inhabitants). By contrast, the South, which carries out more executions than any other region, had the highest murder rate (5.5). The murder rate in the West remained about the same (4.2), while the rate in the Midwest increased slightly (4.5). Four of the five States with the highest murder rates are death-penalty States, while four of the five States with the lowest murder rates are States without the death penalty.
Texas, the State that for years has carried out more 40% of America’s executions on its own, in 2011 had a murder rate of 4.4 per 100,000 people.
This fact is interpreted by many as proof that the death penalty has no impact as a deterrent, given that where it is not in effect, there are actually less homicides (almost 50% less) compared to where it is used heavily and with certain ostentation.
Opinion Polls
In recent years, opinion polls show a basic ambivalence: when given a simple “yes” or “no” to whether one supports the death penalty, the answer “yes” maintains favour, and its decline, year by year, is slow. Instead, when opinion polls include a question offering life imprisonment without parole, things change drastically. Many people are “on principle” in favour of the death penalty, however, when asked to reflect on the possibility of innocent people being put to death, they feel that life imprisonment without parole is more appropriate. When adding those opposed to the death penalty “conventionally” to those, who, while approving of the death penalty in principle, but opting for life imprisonment without parole, the percentage against the actual practice of the death penalty represents a healthy majority. It is a subtle difference, but it is safe to say that in the U.S. the percentage in favour of the death penalty “on principle” is slow in decreasing, while the percentage of those “contrary in practice” is growing rapidly.
The Gallup Poll has recorded the opinion of Americans on the death penalty since 1936. It is the main point of reference at national level in the United States.
Gallup’s 2012 Crime Survey found that 63% of Americans back the death penalty.
The latest Gallup Poll (made public on 9 January 2013) measured Americans' abstract support for the death penalty at 63%, the second-lowest level of support for capital punishment since 1978, and a significant decline from 1994, when 80% of respondents were in favour of the death penalty. Gallup noted the results of the poll may have been affected by the fact that it was conducted between 19 and 22 December 2012, a few days after the shootings in Newtown, Connecticut, where a deranged man on 14 December had killed 20 children and 6 adults. In 2011 Gallup found 61% in support of the death penalty, the lowest level in 40 years.
When Gallup and other polls offer respondents a choice of the proper punishment for murder – the death penalty or life in prison without parole – the public is nearly evenly split on the question. When Gallup gave people a choice in 2010 between sentencing a murderer to death or life without parole, only 49% chose capital punishment.
Among the groups most supportive of the death penalty in this latest Gallup poll were conservatives, Republicans, men, older respondents, and those with a high school or less education. The margin of error was +4 percentage points.
Single-state polls are published frequently, but the results don’t vary much from the national level.
[For further information on capital punishment in the United States of America, see the Death Penalty Information Center’s website]
On 20 December 2012, the United States voted against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly.
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