No End In Sight to Death Penalty Wrangling
By John Gramlich, Staff Writer
(Updated 11:30 a.m. EDT, Oct. 10, 2008)
More than 30 years after it was reinstated by the nation's highest court, the death penalty in the United States still faces serious legal and political challenges, even as a persistent majority of the American public believes convicted murderers should be executed.
The United States is among a handful of industrialized countries to sanction capital punishment, and it has executed more than 15,000 people since colonial days. More than 1,100 prisoners have been put to death since 1976, when the U.S. Supreme Court cleared the way for executions to resume following a decade-long national hiatus.
But while the death penalty today stands as a fixture of American criminal justice, authorized by the federal government and 36 states, its use has declined steadily in recent years as it has run into a host of obstacles in state capitals and in the courts.
The Supreme Court, always at the center of the nation's debate over the death penalty, this year sought to resolve long-running disputes over how and when executions can be carried out. But a pair of landmark decisions - one upholding lethal injection and the other outlawing the death penalty for those who rape children but do not murder them - exposed sharp divisions in the public, among politicians and on the high court itself over when, if ever, capital punishment is appropriate.
Meanwhile, the justices' April decision to uphold lethal injection did not immediately resolve the debate over the controversial procedure. Executions by that method remained on hold in many parts of the country, and lawyers for death-row inmates quickly filed appeals based on what they saw as new avenues included in the high court's ruling.
In the states, which carry out almost all U.S. executions, legislative activity and more court rulings have narrowed where the death penalty can be used. In December 2007, New Jersey became the first state in more than 40 years to abolish capital punishment legislatively, while the Nebraska Supreme Court in February struck down the electric chair - the state's only method of execution - as unconstitutional "torture." The decision left the state with the death penalty but no legal means of carrying it out.
In more than a dozen other states, capital punishment formally is on the books but is rarely used in practice, as court appeals and administrative delays pile up, postponing executions for as long as two decades. In California , where more than 600 inmates are awaiting execution while legal challenges to lethal injection unfold, execution is the third-leading cause of death on death row - after natural causes and suicide. A study commission in June found that capital punishment in California is the law "in name only, and not in reality."
Of the more than 3,300 prisoners on death row in the United States , 42 were executed in 2007, the fewest in 13 years. The low total reflected a seven-month suspension of all executions while the Supreme Court examined lethal injection, but it also aligned with a steady decrease in executions over the past decade. In 1999, the most active year in the death penalty's modern history, 98 prisoners were put to death nationally.
Other developments also have pointed to a decline in the use of capital punishment. Death sentences have plummeted over the past dozen years, from more than 300 annually in the mid-1990s to little more than 120 last year, according to the Death Penalty Information Center, a nonprofit organization that opposes capital punishment. At the same time, more than 120 prisoners have been removed from death row after their guilt or aspects of their trials were called into question, according to the center. That has given many prosecutors and jurors pause before seeking to impose death sentences on defendants, some criminal justice experts say.
Death penalty critics cite a variety of reasons for their opposition: some believe that government should never take human life, that innocent people could be wrongfully executed and that the nation's system of capital punishment is inherently biased because of racial, geographic or socio-economic influences. But supporters of capital punishment - about two thirds of the American public, according to polls - say death is the only appropriate sentence for criminals who commit the most brutal of crimes. They argue that the death penalty helps bring emotional closure to victims' families and friends and acts as a powerful deterrent against future murders.
According to federal statistics, the nation's murder rate has not changed much since the 1990s, even as death sentences and executions have declined at their fastest rates. But the subject of whether the death penalty deters murder remains hotly contested, as competing studies have reached different conclusions.
The fierce debate over the death penalty in the United States is certain to continue in the courts and in state legislatures in 2009 and beyond, and it has already found its way onto the presidential campaign trail. Both major-party candidates in November's election, Democrat Barack Obama and Republican John McCain, support capital punishment and assailed the Supreme Court's June decision to ban the death penalty for child rapists.
This Stateline.org Backgrounder examines the major strands in the complex debate over the ultimate punishment, from persistent questions over lethal injection to the recent limiting of the death penalty on a national level and, finally, the intricacies of public opinion toward capital punishment as it enters its fourth decade of modern use in America .
In 1972, even though there had been no executions in five years, the Supreme Court invalidated all state death penalty statutes as arbitrary and capricious. But four years later it opened the door for states to put their death chambers back into use, ushering in the modern era of capital punishment.
The vast majority of U.S. executions since 1976 - more than 940 - have been carried out using lethal injection, a method developed by Oklahoma's medical examiner in 1977, first employed by Texas in 1982 and subsequently adopted as the primary or exclusive means of execution in 35 of the 36 states with the death penalty (Nebraska is the exception).
But what was originally envisioned as a more humane alternative to the gallows, gas chamber, firing squad or electric chair itself has become the subject of intense legal battles in recent years, as critics say the procedure could subject dying inmates to unconstitutional "cruel and unusual punishment."
The three-drug lethal injection process works like this: First, a sedative called sodium thiopental is administered intravenously, rendering the inmate unconscious; then a paralyzing agent, pancuronium bromide, stops the breathing muscles; finally, a dose of potassium chloride stops the prisoner's heart. The same combination of three drugs is used in every state that allows lethal injection, but other aspects of the procedure vary, including the amount of each drug injected.
Critics of lethal injection say that if the first chemical in the three-part regimen is not administered properly, an inmate could remain conscious and die an excruciating death from the other two chemicals. They point to "botched" executions like the May 2006 lethal injection of Ohio murderer Joseph Clark, who took nearly 90 minutes to die and repeatedly protested to his executioners that the drugs weren't working. Most executions by lethal injection last about 10 minutes.
Seeking to resolve the controversy over lethal injection, the Supreme Court in April upheld the process as it is used in Kentucky . The justices rejected arguments raised by a pair of Kentucky double murderers that the state's protocol carries too great a risk of unconstitutional suffering. The 7-2 decision ended a seven-month moratorium on all executions nationwide - the longest such stretch in the modern history of capital punishment - and foreshadowed an uptick in executions nationwide, at least in the short term.
More importantly, however, the justices developed a new legal standard of review for lethal injection. A successful challenge to the procedure, Chief Justice John G. Roberts Jr. wrote, must show that there is a "substantial risk of serious harm" in a state's protocol and that a readily available and easy-to-implement alternative exists.
Death penalty supporters hailed the new standard as a tough obstacle for opposing lawyers to overcome, and they were vindicated within weeks of the ruling, as federal judges upheld the lethal injection procedures used by Missouri and Virginia. Elsewhere, however, the issue remains unresolved, and moratoriums on executions dragged on, most notably in California , Maryland and Delaware.
In California, which has the nation's largest death row by far, capital punishment has been in limbo since 2006, when a federal judge ruled the state's lethal injection process "cruel and unusual" after finding it impossible to determine whether inmates executed in the past were unconscious before they died. The judge postponed executions until the state revised its protocol, but that process has been held up amid a separate legal challenge.
Meanwhile, a state commission this year issued a long-awaited report that blasted California 's system of capital punishment as "dysfunctional," casting a new cloud of uncertainty over its future in the Golden State .
In Maryland , all executions also have been on hold since 2006, when the state's highest court ruled that the state improperly prevented the public from weighing in on its procedure for carrying out lethal injections. Gov. Martin O'Malley (D), a staunch opponent of capital punishment, has ordered the state to draft a new procedure for public review, but that process is expected to take months. The state also has ordered a study panel to review its use of the death penalty, a move that death penalty opponents have decried as stalling.
In Delaware , a federal judge has extended a two-year old moratorium on executions until the state's lethal injection procedure can be weighed against the new standard outlined by the Supreme Court. Lawyers for the state's 19 death-row inmates say Delaware's procedure is substantially different from Kentucky's and poses a higher risk of subjecting inmates to unconstitutional punishment.
Meanwhile, death penalty opponents were hoping an Ohio court ruling could open a new chapter in the debate over lethal injection. A state trial judge there in June became the first in the nation to order a state to switch from a three-drug procedure for lethal injections to a single-drug protocol instead, claiming it would guarantee that prisoners die "quickly and painlessly" in accordance with state law.
The ruling was welcomed by capital punishment opponents, who have long pushed for a single-drug regimen similar to what is used in animal euthanasia. But because the order was not binding on the state, there was no indication Ohio would change its procedure in the long term, and it set new execution dates using the three-drug method.
Lurking beneath the surface of the debate over lethal injection is a separate dispute over what role, if any, medical professionals should have in executions by that method. The question has provided plenty of drama in North Carolina, where a standoff between the state Department of Corrections and the state Medical Board has stalled executions for more than a year. The Medical Board's ethics rules forbid doctors from taking part in executions, and the Department of Corrections has had trouble finding doctors willing to participate, as the law requires.
Nationally, the American Medical Association also has spoken out against doctors' participation in executions, and the issue could resurface amid further litigation over lethal injection.
In some states, the death penalty is on hold for reasons other than challenges to lethal injection. Many death penalty scholars have characterized lengthy delays in those states as a kind of "passive abolition" of capital punishment by political leaders.
In Illinois , for example, former Gov. George Ryan (R) attracted national attention when he called a formal moratorium on all executions in 2000, citing an investigation that uncovered police corruption and racial bias in the state's system of capital punishment. Ryan, who later spared all of the state's 167 death-row inmates from execution amid fears an innocent person could be put to death, also ordered a study commission to make recommendations about improving the state's death penalty.
But while Illinois' study commission completed its work and the Legislature has adopted several of its proposed reforms, the state's current governor, Rod Blagojevich (D), has resisted calls to lift the moratorium on the death penalty, claiming many of the original problems cited by Ryan are far from resolved.
In New York, where the state's system of capital punishment was effectively struck down by the state Supreme Court in 2004 over concerns about the instructions given to juries, lawmakers have rejected bills that would restore the death penalty. The state is now counted among the 14 that do not authorize capital punishment, after a court in 2007 reversed the sentence of the state's last death-row inmate.
In Nebraska, it will be up to the Legislature to approve a new method of capital punishment after the state Supreme Court rejected electrocution this year. Nebraska was the last state in the nation to rely solely on the electric chair to carry out its executions, though several others allow it as an alternative to lethal injection. Gov. Dave Heineman (R) and others have vowed to push for a swift replacement to the electric chair, but any plans to introduce an alternative could be blocked by capital punishment opponents, who have made headway in recent years on efforts to abolish the death penalty altogether in Nebraska.
At the U.S. Supreme Court, there has been a narrowing of capital punishment of a different variety, as the justices have limited the kinds of criminals who can be sentenced to death.
The high court in June refused to allow Louisiana to execute a man who was convicted of raping his 8-year-old stepdaughter, finding that executing a non-killer would conflict with society's "evolving standards of decency." The 5-4 decision invalidated Louisiana 's death penalty for child rapists and similar statutes in Georgia, Montana, Oklahoma, South Carolina and Texas.
The ruling also marked the latest Supreme Court action to restrict when the death penalty can be applied, after earlier decisions outlawed capital punishment for juveniles, the severely mentally retarded and those who rape adults. No one has been executed for a crime other than murder in the United States since the 1960s.
The high court's ruling in the Louisiana case drew an explosion of criticism from elected officials on both sides of the political aisle, including both major candidates campaigning for president. Obama said he considered the rape of a child among "the most egregious of crimes," deserving of death, while McCain went further, calling the ruling "an assault on law enforcement's efforts to punish (child rapists) for the most despicable crime."
Backed by many members of Congress and the U.S. Justice Department, Louisiana asked the Supreme Court to reconsider its decision because of a rare factual error in the majority opinion that was revealed after the ruling was issued. But the justices declined to rehear the case.
The United States and four other countries - China, Iran, Pakistan and Saudi Arabia - account for nearly 90 percent of the world's executions, according to Amnesty International, a human rights organization that opposes capital punishment. Of those countries, China is by far the world leader in executions, putting at least 470 people to death last year, the organization said in a recent report . Almost all industrialized countries in the world have abandoned the death penalty, and the United Nations last year approved a nonbinding resolution calling for a moratorium on all executions worldwide; the United States opposed the resolution.
Despite the country's relatively isolated position in the world, a persistent majority of the American public - 69 percent - approves of the death penalty for those convicted of murder, according to a series of Gallup polls. While that percentage is down from an all-time high of 80 percent in 1994, it has steadily climbed since 2003, when 64 percent of the public supported the death penalty for convicted killers, according to Gallup .
Death penalty supporters say the reason for consistent public support is simple: Some crimes are too horrific to be punished by anything other than death. They note that polls have shown even stronger support for the death penalty in the cases of the worst criminals, such as former Iraqi dictator Saddam Hussein, who was hanged in 2006, and Timothy McVeigh, who orchestrated the bombing of a federal building in Oklahoma City and was executed by lethal injection in 2001. McVeigh is one of only three prisoners executed under the federal death penalty in the modern era of executions.
While a clear majority of the American public continues to support the death penalty for convicted killers, there are shades of gray, according to capital punishment opponents. They stress, for example, that support for the death penalty wanes in Gallup polls when the public is asked if it still supports capital punishment when a criminal sentence of life in prison is possible. The public supports life imprisonment over the death penalty by a 48-to-47 percent margin, Gallup found.
Concerns about the fairness of the death penalty also may be making an impression on public opinion. Claims of racial discrimination, for example, have abounded in the discussion over capital punishment as states including Maryland , New Jersey and North Carolina have issued reports finding that the death penalty is applied in a discriminatory manner, with blacks more likely to be sentenced to death than whites. Nationally, about 40 percent of the prisoners on death row are black, while only about 13 percent of the population is.
Perceptions of the death penalty break along racial lines, polling has found. Only 40 percent of African-Americans support the death penalty, while 68 percent of whites do, according to polls conducted in 2007 by the Pew Research Center. Hispanics are split relatively evenly on the question, according to the center, which, like Stateline.org , is funded by The Pew Charitable Trusts.
But among the most sensitive issues driving the debate over the death penalty is the question of whether innocent people could wrongly face execution. According to the Death Penalty Information Center, 129 men and women in 26 states have been released from death row since 1973, some because of DNA evidence that surfaced after they were convicted.
Capital punishment supporters say that nearly half of those exonerations were due to prosecutorial misconduct or lack of evidence on retrial. They say there is no evidence an innocent person has ever been executed, and that states should be more concerned with making sure killers aren't released because of faulty prosecution. Indeed, Supreme Court Justice Antonin Scalia has said that exonerations are a sign that the system of court review is working, rather than not working.
Death penalty critics were pleased when former Virginia Gov. Mark Warner (D), in one of his final acts as governor in 2005, ordered a posthumous review of DNA evidence in the case of Roger K. Coleman, whose controversial execution in May 1992 made headlines around the world amid speculation that Coleman was innocent. Coleman maintained to the end that he had not raped and murdered his teenage sister-in-law - but the DNA tests showed he was guilty as charged.