Capital Punishment
AKA, the Death Penalty.
I took Capital Punishment this fall because honestly, I never gave the subject much thought. My 1L crim law course revealed some flaws with its administration, but then I read Just Mercy and really became captivated. In this post, I’ll run through the basics of how and why we have the death penalty in America; how it’s evolved; a few common pro/con arguments; and where we stand today.
As always, I’ll start with a disclaimer that I’m no D.P. expert (I’ve been studying this stuff for literally 12 weeks, guys) so this is purely informational and strictly for fun!
THE BEGINNING
Long story short, the death penalty has been around for a while. America got it from England, who basically said “you committed a crime? Any crime? Great! It’s the gallows for you.” We were never quite that extreme but…it wasn’t far off.
The U.S. Constitution expressly permits the death penalty in several places, most notably in the Due Process Clause of the Fifth Amendment. 5A says the government can’t take someone’s “life, liberty, or property” without the due process of law; since life is included in that list, we know the Founders said the death penalty was a-okay.
Due Process is still important today, but the most common constitutional argument for/against the death penalty comes from the 8th Amendment. You’ve definitely heard this one:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The question “is the death penalty a cruel and unusual punishment?” plagues us now, and apparently will continue to do so until (a) we perfect the application of capital punishment or (b) get rid of it.
Fun fact: the Supreme Court DID rule C.P. unconstitutional in 1972, in a very famous case called Furman v. Georgia. Many people thought Furman was the end of the American death penalty, but not the southern states. They went “alright, well - if the death penalty is unconstitutional as it currently stands, then we better change the way we do it.” And they did. State legislators altered how juries give the death penalty during the penalty phase of a trial, passed new statutes, and got back to it. In a case called Gregg v. Georgia, just four years after Furman, the Supreme Court looked at Georgia’s new C.P. statute and said “looks constitutional to us! C.P. is a go.”
I’m sullying the great names who wrote and dissented in Gregg by implying they would EVER use such flippant language, but that’s basically what happened.
Forty four years later, 22 states and D.C. have chosen to forego capital punishment while 28 states, plus the military and the federal government, still have it (fingers crossed on that math). As of this writing, Colorado is the most recent state to replace the death penalty with life-in-prison-without-parole on March 23, 2020.
PROGRESSION
It’s been around for a long time, but the death penalty has evolved immensely in that time. Here are the top 9 ways it’s changed:
METHOD - From the gallows to a wide assortment of methods including gas, lethal injection, electric chair, and firing squad (what up Utah).
PLACE - Executions were once public and held in town squares, to the onlookers’ enjoyment; in contrast, they’re now very private and held exclusively within prisons.
CRIME - The death penalty used to apply to a wide variety of crimes, but the Supreme Court has ruled that it’s only constitutionally permitted for homicides.
TIMING - Executions were once VERY swift, occurring a year or less from the trial, but they now take place years, if not decades, after the defendant is convicted.
RACE - Death penalty application has always been affected by the race of the defendant and victim, but we care more about the disparities now than ever before.
REGION - This is interesting: where the Northeast once held the title of Biggest C.P. Lovers (thnx Puritans), it has long since ceded the crown to The Deep South. Specifically, the 2% of counties in Texas that perform ALL of the Lone Star State executions.
WHY - Back in those Puritan times, capital punishment was inflicted to save the offender’s immortal soul before death (a literal last-minute rehabilitation). We’ve since shifted to more practical goals of deterrence and retribution.
DIVERGENCE FROM THE WORLD’S VIEW - Where the death penalty was once the international norm, only 56 countries still retain it. Of course, America is one of those 56 and one of the few democracies on that list.
HOW SETTLED - Kind of like #8, executions in the U.S. were once ROCK solid; there was a zero percent change that they was going away. But since the Supreme Court declared the death penalty “unconstitutional” between 1972 and 1976, and execution rates have drastically declined, the institution is no longer set in stone.
(Are you wondering why is this is a top 9 instead of nice, round top 10? Well there WERE ten when my professor listed them on the first day, but…my notes only have nine. Classic.)
One more notable change is the class of people to whom we assign the death penalty. As of 2020, we no longer administer the death penalty to…
Juveniles (under 18 when they committed the offense)
Intellectually disabled defendants
Mentally ill defendants (either at the time they committed the crime, or at the time of execution)
Defendants who committed a non-homicide crime
We’ll likely see these categories expand in the coming years, as the American death penalty is ever changing.
Courtroom sketch from the capital trial of the Boston Marathon bomber.
ARGUMENTS FOR & AGAINST
There are tons of moral and empirical arguments made for and against C.P., but they usually boil down to the following:
PRO Death Penalty: Many people believe the death penalty helps deter people from killing other people; others believe in an “eye for an eye” punishment, and want to honor the victim/wishes of the victim’s families by executing their killer; and some contend that the death penalty keeps the most dangerous offenders out of society/protects other prisoners from particularly violent offenders.
ANTI Death Penalty: Many abolitionists argue that the death penalty doesn’t deter homicide, and it’s actually more expensive to execute a prisoner* than to incarcerate them; some believe C.P. creates a “brutalization effect,” which encourages society as a whole to be somewhat ruthless; and many argue that the possibility of executing innocent people, or doing so for some discriminatory reason, is far too high to justify its use.
*this isn’t just the physical execution, but also the cost of litigation that occurs as the defendant goes through the capital appeal processes
MIDDLE of the roaders (yes, these exist!): Some say the U.S. should keep the death penalty, but need multiple reforms to (a) ensure it’s narrowly applied and (b) not discriminatorily applied.
IN CONCLUSION
The death penalty isn’t going anywhere for a long, long time, but it will continue to change. There are always new legal arguments for why certain categories of people or crimes shouldn’t qualify for execution, as well as legislative arguments about why it’s just not worth taxpayer dollars. Unfortunately, we’ve also seen multiple postmortem exonerations as DNA evidence gets better - but many hope that the same evidence will prevent wrongful convictions in the future.
Overall, death penalty jurisprudence (the way the Supreme Court has decided cases about it over time) is super fascinating, and it’s not a thing of the past! Just last year, SCOTUS ruled on a case called Mississippi v. Flowers, which dealt with racial discrimination against jurors in Mr. Flowers’ capital case. This stuff is alive and well, and how the Court rules over the next fifty years will say a lot about whether the U.S. will ever fully abolish the death penalty.
So the next time someone unexpectedly asks about your death penalty stance, know that you can say “well, its complicated” and be 100% correct!
