Since the founding of our nation, the government has punished murderers, and until recent years rapists with the ultimate punishment, death. More than 13,000 people have been legally executed since the colonial times, most of them in the early 20th Century. By the 1930's as many as 150 people were executed each year. However public outrage and legal challenges caused the death penalty to slowly disappear. By 1967, capital punishment was considered a judge's opinion. In 1972, in Furman vs. Georgia, the Supreme Court invalidated hundreds of scheduled executions declaring that existing state laws violated the 8th Ammendment prohibition against cruel and unusual punishment. But in 1976, Gregg vs. Georgia, the court brought the death penalty back to life. It ruled that the death penalty "does not invasiably violate the constitution if administered in a manner designed to guard against arbitrariness and discrimination". Several states promptly passed or brought back capital punishment.
Thirty seven states now have laws allowing judges to use the death penalty. A dozen states in the midwest and northeast have abolished capital punishment; two in the last century (Michigan in 1947 & Minnesota in 1953). Alaska and Hawaii have never had the death penalty. Most of the executions that have taken place happened in the states of the deep south.
Today there are about 2000 people on 'death row'. The majority are poor, a significant number are mentally or disabled, and 40 % are African American and a good number are Native American, Latino and Asian. (Ben Andrews)
Within this report, we will look more closely into specific areas of gov't: Congress, the Courts, and the general public where this issue has become an important factor of debate; how it has become a heavily debated topic of our society and has affected the opinions, policies and processes our gov't. ( Pedro Quinones )
Throughout history, capital punishment has been one of the most severe forms of law enforcement in a society or gov't. This method of punishment which results in death, punishes individuals usually convicted guilty of crimes consisting of armed robbery, kidnapping, rape, treason and murder. With the passing of time, qualifications for the death penalty has been reduced to just murder. Though the qualifications were reduced, capital punishment still exists to a degree making this method of justice is still one the most controversial issues in societies today, especially in the United States. ( See Timeline )
Dating back to the colonial era and after the American Revolution, severe punishment ( in this case death ), was considered an acceptable practice by the governing body. Thomas Jefferson even stated in his Kentucky Resolution of 1798 ( which we'll look more into in The Death Penalty As Law). Although small groups felt that it was immoral to execute individuals, it was deemed necessary to maintain law and order. Many who supported the death penalty believed that once a person commits a crime that violates or threatens the rights and life of another, they have given up their own. Many people (writers, editors & clergy) began to oppse the death penalty leading to the elimination of it by a few states in the 1840's (Janda, Barry, Goldman; pgs. 137-138). Other states which maintained capital punishment sought new methods which executions would be less torturous. In 1890, New York discovered the means of electrocution, as a means to reduce the torture. Other methods included the gas chamber, and lethal injection. Though these newly discovered methods seemed ' civil ', many still oppposed them. In 1917, twelve states went against the death penalty passing laws in it's opposition.
But periods in our history have caused this belief to flucuate back and forth. In times of war: World War I & II for example. The people felt the death penalty would help maintain law and order in the time of possible disorder, leading to four states reinstating it. But again as time progresses, the public belief once again changes. In times where there is no war, the people felt that capital punishment should be put 'back on the shelf'. Many argue that the policy should remain to discourage any possible, future attempts to disrupt the gov't., society in any possible manner. And as the authors of the Challenge Of Democracy point out, " since public opinion was niether strong or stable in forcing it's outlaw of the death penalty, it kept with the pluralist model of democracy , shifting from the legislative area to the courts" (pg.138). And this is where the big battle over the death penalty begins.
Such examples include the 1970's, where public opinion would strongly oppose capital punishment. The Supreme Court declared a ruling in which capital punishment " the imposition and carrying out of the death penalty " was cruel and unusual punishment in violation of the 8th & 14th Ammendments of the Constitution ( Zimring; World Book, pg.139).
Although the Supreme Court managed to suspend this act, the doors for a 'constitutional interpretation' of capital punishment remained open. Due to the loose interpretation of the Constitution, lawmakers were able to specify the standards that would make it constitutional. For example, murder crimes which resulted in the death / deaths of any individual would qualify anyone for this sentence. So by this standard, the death penalty was re-enacted, once again returning the heavy debates over it and adding more to it's controversy.
Even now in 1998, the death penalty is still a strongly debated issue. Cases such as Timothy Mcviegh and more recently, Karla Faye Tucker show the practice is still active regardless of the oppposition, and this is what I believe will lead into this year becoming an important one for the policy of capital punishment.
Capital punishment, a very controversial issue, has affected our gov't. and society in their political ideals, processes, and our very institutions. One major area it has affected is our Constitution.
The Constitution, created by our forefathers, established a form of gov't. after the colonies severed it's ties from Great Britain. This newly created government's main objective was to guarantee and protect it's people their rights, freedoms, and liberties: and within the text of the Constitution, it is numerously repeated. Two examples are the 8th & 14th Ammendment which guaranteed the civil rights and liberty of an individual as well as their due process of law. Punishment by death was practiced long before the Constitution, and for that matter even before the Articles of Confedration. This was practiced in order to protect the colonists their freedoms and rights, from any persons who would violate them. Although the Constitution guarantees rights and liberties to it's people, the need to maintain order for protecting these privledges was also necessary.
The Constitution, gave the gov't. the ability to establish a system and body of law which would require everyone of it's peolpe to follow and live by, in return for these protections. And for those who would not follow, penalties would then be issued. An example of this can be seen in Thomas Jefferson's Kentucky Resolution of 1978, which basically gave the gov't. the power to admonish the necessary punishment they deemed necessary for specific crimes on them ( i.e. conterfieting; the illegal production & coining of money ). One form of punishment that was carried over throughout time was death and basically remained a form of punishment, which would not be really contested until 1972 in which a court case ( see The People vs. The Death Penalty ) brought the constitutionality of capital punishment into question.
Capital Punishment, simply calls for the execution / termination of a convicted criminal's life after being found guilty of committing a specfic crime which would qulaify him to recieve such a sentence ( i.e. murder ). But in this case it was contested that punishment by death violated an individual's constitutional protection of life and liberty in the 8th & 14th Ammendment, which the constitution guaranteed. The confusing conflict eventually led to a Judicial Review, power given to the Supreme Courts by the Constitution, to a ruling that punishment by death was cruel an unconstitutional and unjust.
Eventually as time progressed, lawmakers faced many conflicts and demands to re-instate the death penalty, which has successfully been done in Article IV / Sect II / Paragraph II and Article X Sect I Paragraph II of our Constitution, which calls for this method of punishment under the given circumstances. And more recent examples are Proposition 195 ( carjacking ), and Clinton's policy (Anti-Terrorism and Effective Death Penalty Act of 1996) for crimes committed as terrorism and against federal agents. Such an example of this is the recent Oklahoma City Bombing, which Timothy McVeigh was one of the first to be sentenced under this new policy.
Due to the loose and broad interpretation of the Constitution, the policy of capital punishment has allowed law-makers to create and revise policies that can be deemed constitutional. This ability has become a major focal point of political influence which has affected the nation tremendously. It affects how majorities vote for representatives and policies; such an example I believe was the election of George Pataki as Govenor of N.Y. ( with an assistance from Howard Stern ). And it also influences how these representatives and political leaders choose and create laws for the people, such as the examples I have presented earlier on. In the next section, we will actually see the trials and tribulations these particular ammendments face when they attempt to become law.
In early Feb. 1995, the Effective Death Penalty Bill quietly headed for a vote in the Congress. The bill, which is one of the most significant alterations of American law since 1867, dramatically changed the terms of " habeus corpus " limiting the ability of the convicted prisoners to have their access reviewed. The bill also limits the power of the Federal judges to disagree with the state court decisions.
Rep. Bill McCollum (R-Fla.) introduced and sponsored the Effective Death Penalty Bill (H.R. 729) together with five cosponsors, on January 30, 1995 for a purpose of controlling the crimes (http://thomas.loc.gov.). The bill was referred to the House of Committee of the Judiciary where consideration and mark-up sessions were held. The Judiciary mark-up took heat from many opposed Democrats, clearly showing "some political advantage Republicans enjoy in these issues" (CQ 1995, p.367). The Committee approved a bill that limited a death row inmate to appeal their sentence in a process known as "habeus corpus". The Habeus Corpus petitons are the means by which state and federal prisoner can get federal court to interpret the violation of their "Constitutional rights" (CQ 1996, p.1046).
The bill sets a time period and other restrictions in Habeus Corpus appeal particularly for the death penalty case. For many years convicted criminals on death row have been mocking their cases with such appeals. It was time that the Republicans took actions to limit the period for their time appeal. Federal Prisoners have two years limit while state have only one. The nill would also limit prisoners who want petition. It would be extremely difficult for prisoners to appeal in second round unless he/she could show "clear and convincing" new evidence of innocence (NYT 1995, p.B3). Clearly, most of the House Republicans supported the legislation to toughen their crime bills. However, the Democrats argued that such restrictions on habeus corpus offers a criminal safeguard against wrongful execution" (CQ 1995, p.458). Other Democrats and Presidents Clinton's administration joined the support with certain conditions " to guarantee that criminal defendants will get competent lawyers at thier initial trial" (CQ 1995,p.458) Representative Charles Shumer (D_NY) proposed an ammendment during the mark-up to "provide adequate lawyers for trials itself and not just legal proceedings" (CQ 1995, p.369). Unfortunately, the ammendment did not succeed. Although, Rep. McCollum agrees that states should consider Rep. Shumer's proposal, but as a pratical manner some were unlikely to do so" (CQ 1995, p.369).
The bill was successsfully passed in the House on Feb. 8, 1995 by a record vote of 297-132 (Yeas-Nays vote) (http://thomas.loc.gov.). It was then sent to the Senate and read twice and referred to the Senate Committe on Judiciary. The Senate took a while to act on Hr729 until the Senate Republicans linked "terrorism and death row appeals when they put an overhaul of habeus corpus rules in the terrorism bill (S.735)" (CQ1995,p.703). Senator Bob Dole (R-) introduced and sponsored the bill on April 27, 1995 which was incorporated with HR 729. The Senate Democrats opposed the legislation by linking it with Hr 729, but the House Republicans "justified linking the two issues by saying swift execution would help deter would-be terrorists" (CQ 1996, p.703). Sen. Orrin Hatch (R-Utah), Chairman of Judiciary Committee, claimed that "habeus corpus provisions is the heart and soul of the bill" (CQ1996,p.1046).
Some critics are bitter about the language that forbids federal courts to grant the habeus corpus if a claim had been decided by state courts, unless the state decision was " an arbitrary or unreasonable" interpretation of established federal constitution law. (http://www.house.gov.) Sen. Daniel Patrick Moynihan (D-NY) oppposed those restrictions because it is unconstitutional to "undermine the U.S. Supreme final authority in intrepreting the U.S. Constitution" (CQ 1996, p.1046). Sen. Moynihan's proposal was defeated in the conference report by a 64-35 vote (CQ 1996,p.1046). The Senate passed the ammendment legislation by Yeas-Nays vote of 91-8 on June 7, 1995, which was sent to the House (http://thomas.loc.gov.). Both houses decided to meet for a decision by conference action where many ammendments passed and may have failed.
The compromise took almost a year to pass the legislation. On Apr. 15, 1996, the conference finally agreed to file conference report (http://thomas/loc.gov.). The Senate agreed to the report by 53-46 Yeas-Naysvote, while the Congress agreed as well by 293-133 Teas-Nays vote (http;//thomas.loc.gov.). The bill was sent to the White House and presented to the President where he later signed and became Public Law No. 104-132 on Apr. 24, 1996 (http;//thomas.loc.gov.).
Both Houses, the Senate and the Congress passed the "Anti-Terrorism and Effective Death Penalty" law; the Act "to deter terrorism, provide justice for the victims, provide for an effective death penlty, and for other pruposes" (http://www.ins.usdoj.gov.). The Republicans on both sides of the House were virtually ununiform in the supoport of tough law enforcement provisions which they often passed over the objections of the Democrats, who complained that they would violate the civil liberties and civil rights of the accused. Th Anti-terrorism and effective Death Penalty Act of 1996 will continually recieve many controversial issues from different perspective proponents and oppponents. The supporters believe that the law will toughen the crime bills in the U.S. and reduce the delay of executions for death row inmates. On the other hand, opposed critics and advocates argue that the gov't. failed to carry-out the civil liberties and rights stated inthe U.S. Constitution because such cruel punishemnt violates the Constitutional Rights of an individual. Who determines who dies? You decide....
The introduction of the death by electrocution was one of the main resaons why public opinion ceased to support the death penalty. In fact, in 1972 the Supreme Court declared the death penalty, as a imposed by existing state laws, unconstitutional. This decision did not last very long. Due to the increase in the nations homocide rate, public approval steadily increased. This led to another Supreme Court decision in 1976, which three new states intorduced laws thsat allowed judges to consider the defendants record and the nature of the crime in making their decisions on using the death penalty. The court rejected the argument that the death penalty was unconstitutional and noted that public opinion favored it.
The public's attitude towards capital punishment can vary over time. In many cases, it can vary over dramatic events, most of the time opinions tend to fluctuate when there is a threat to social order. The public has shown that it can favor it especially in time of war, or when crime rates are high.
Although the government does not always do what the public wants, public opinion has proven itself to be a major factor in determining government policy towards the death penalty. This becomes evident as cases involving the death penalty are taken to the courts.
THE PEOPLE VS. THE DEATH PENALTY (FEDERAL AND STATE RULINGS)
The court system, both federal and state, through numerous trials have enabled America to continue it's long standing of capital punishment. Several Supreme Court rulings have played a pivitol role in struggles over the death penlty. Beginning with the question of constitutionality, the case of Furman vs. Georgia (1972) with a 5 to 4 closing ruling invalidated existing state laws authorizing the death penalty on the grounds that they violated the Eighth Ammendments prohibition against cruel and unusual punishments. The Furman decision became a suggestion to some opponents of the death penalty that the U.S. might soon join the trend of other advanced, Western industrial democracies who did not permit capital punishment (under any circumstances). Among these nations are France, Denmark, Germany, Spain, Italy, Switzerland, Sweden, and Australia. However, their hope was soon overturned when in 1976 another case out of Georgia, Gregg vs. Georgia was decided. In response to the Furman case state legislators hadc enacted new 'improvised' capital punishment laws, and in the Gregg vs. Georgia, the Supreme Court affirmed the constitutionality of these new laws. This decision once again gave states the "go-ahead" to aggressively seek the death penalty as its most severe form of legal punishment.
A torrent of cases seemed to reach the Supreme Court, each widening the boundaries of the detah penalty. In Penry vs. Lynaugh, the Supreme Court ruled that the "cruel and unusual punishment" provision of the Eighth Ammendment does not prohibit the execution of the mentally retarded. In Thompson vs. Oklahoma, the Supreme Court ruled that sixteen year olds can be executed. In Ford vs. Wainwright, the Court ruled that the Eighth Ammendment does not prohibit the execution of the insane, but provided no criteria for determining insanity. America seemed hungry to kill and the highest courts were giving permission.
Within the onset of yet third landmark case out of Georgia, McCleskey vs. Kemp (1978), the studies and statistics in the cae gave rise to the issue of racism surrounding the death penalty. The shift from a question of constitutionality to a question of racism became a dominant force in the court room. An applicable and powerful defense tool for defense lawyers, as well as a strong issue that shapes public opinion . The allegation that death sentences tend to be applied in a racial discriminatory fashion was brought to the attention of all.
On May 13 1978, Warren McCleskey, a black man, helped rob the Dixie Furniture store in Atlanta, Georgia. A white police officer was shot in the head and killed in an attempt to stop the robbery. Sometime later, McCleskey was arrested in connection with another armed robbery. He admitted to participating in the funiture heist but denied shooting the white officer. During the investigation the authorities learned that McCleskey had stolen a gun capable of shooting the type of bullet that had killed the officer.
A jury of eleven whites and one black sentenced McCleskey to life imprisonment. McCleskey appealed the decision numerous times. an aspect of his appeal, however, contained a challenge to the entire system of capital punishment in Georgia and nation wide. Supported by the most comprehensive statistical analysis ever done on the racial demographics of sentencing in a single state, McCleskey's attorneys argued that their client's sentencing should be invalidated because there was a constitutionally impermissable risk that both his race and that of his victim had played a significant role in the decision to sentence him to death.
The study found that among the variables that might influence capital sentencing, level of education, age, method of killing, criminal record, motive, strength of evidence, and so forth - the race of the victim emerged as the most consistent and powerful factor. the study concluded that the odds of being condemned to death were 4.3 greater for defendants who killed whites than for defendants who killed blacks.
The judge in the McCleskey appeal, Judge J. Owen Forrester rejected the racial discrimination claim on the ground that the study did not represent good statistical methodology. The court declared that, in order to succeed, McCleskey would have to to have provided evidence that his sentence was the product of race dependent decision making. Although the McCleskey decision was not overturned its acknowledgement of racial factors in capital punishment opened the door to challenges attacking this aspect as well as others of criminal sentencing (especially dealing with the death penalty). Racial discrimination remains to be the focusing point of many death penalty abolition groups inside the courtrooms and out.