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‌‘Unintended consequences’ and the legacy of Furman v. Georgia

More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared overnight.

“Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact.” Carol Steiker

But Furman didn’t abolish capital punishment for very long. Four years later, Gregg v. Georgia and several companion cases made clear that governments could impose capital punishment under certain conditions. Those decisions were a response to the backlash sparked by Furman , which appeared to revive support for a practice that had been in sharp decline for years. Today, 27 states in the U.S., as well as the federal government, retain the death penalty, and as of April 2022, one source reported that there were 2,414 people on death row across the country. Despite what many would have predicted in 1972, when the Furman decision suggested the U.S. would become an international leader in eliminating the death penalty, today it’s the only Western democracy that still imposes it. 

Still, while the death penalty persists in the U.S., it’s not exactly thriving. Indeed, it’s once again “withering” across the country, says Carol S. Steiker ’86 , the Henry J. Friendly Professor of Law at Harvard Law School, who has taught Capital Punishment in America at the school since 1993. Though Furman (and its subsequent overruling) helped fuel the death penalty’s revival, it also set in motion a long series of events that may ultimately eliminate capital punishment in the United States, Steiker says.

“ Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact,” says Steiker, who is co-author, with her brother, Jordan Steiker ’88, of “Courting Death: The Supreme Court and Capital Punishment” (Harvard University Press, 2016) and co-editor, also with him, of “Comparative Capital Punishment” (Edward Elgar, 2019).

“ Furman was a remarkable intervention,” says Jordan Steiker, a professor at the law school at the University of Texas at Austin and co-director of its Capital Punishment Center. “Even though it was quite short-lived in suspending the death penalty in the U.S., it completely changed its course because it essentially inspired or required states to rethink how they were doing capital punishment. And ultimately, the practice of the death penalty changed substantially over time.”

Given the greatly heightened public attention to the power of the Supreme Court today, the 50th anniversary of Furman is an opportunity to reexamine not just the history of the death penalty but the appropriate role of the Court in American life, Carol Steiker and others believe.

“Right now a lot of people are wondering how much of a role we want the courts to play in deciding what rights are guaranteed by the Constitution, and Furman v. Georgia is a unique example of when the Court struck down a policy that was widely prevalent throughout the states for violating the Constitution,” says Gene Young Chang ’24, who has been studying the death penalty with Steiker since he was a freshman in her Harvard College course The American Death Penalty: Morality, Law, and Politics. Furman , he says, “teaches us things about the role of the courts in a democratic society, the scope of constitutional rights, and the proper method for defining those rights.” 

Categorical abolition of the death penalty across the nation is unlikely without another Furman v. Georgia , “what you might call Furman II, which is obviously not forthcoming from this Court or anytime in the foreseeable future,” Carol Steiker says. Instead, the future of the death penalty, she says, is being played out at the local level, in “a kind of guerrilla war going on county by county, state by state, with the election of progressive prosecutors who do not seek the death penalty, state legislative activity, and state constitutional litigation under state constitutions.”

The final death knell for capital punishment will likely depend on a very different Supreme Court from the one we have today, she says. “But at that point,” given other trends in the country, “it may be more like a coup de grâce rather than what it was at the time of Furman .”

History of a ‘remarkable intervention’

In the 1960s, due to a campaign by the NAACP Legal Defense and Educational Fund to challenge its constitutionality in cases across the country, capital punishment was in decline. Indeed, no one was executed in the five years before Furman , as states waited to see what the high court would rule. In 1971, the Supreme Court rejected a due process challenge to capital punishment. But Furman , argued a year later, relied on the Eighth Amendment: The LDF team argued that the arbitrary application of capital punishment — jurors, often with no guidance, had complete discretion on when to impose it — was a cruel and unusual punishment.

”The Supreme Court intervention [in Furman] not only didn’t kill the death penalty but actually made it stronger when it was reinstated.” Carol Steiker

The Supreme Court agreed, 5-4, although the justices issued nine separate opinions, which was very unusual, as Carol Steiker notes. Justice Thurgood Marshall (for whom both Steikers later clerked) and Justice William J. Brennan Jr. LL.B. ’31 maintained that the death penalty was unconstitutional per se. Justice William O. Douglas was troubled by its discriminatory application, given overwhelming evidence that it was more often imposed on Black defendants, the poor, and the politically unpopular. Justices Potter Stewart and Byron White were troubled by its arbitrary application under state statutes, with Justice Stewart famously writing, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He concluded that the Constitution could not “permit this unique penalty to be so wantonly and so freakishly imposed.” 

But abolitionists’ hopes didn’t last long. Soon after Furman, 35 states rewrote their laws to try to comply with the Court’s ruling. In 1976, in a group of consolidated cases known as Gregg v. Georgia , the Supreme Court held that the death penalty was not per se unconstitutional. It ruled the punishment could be revived if state laws provided an objective process for deciding when to apply it and gave sufficient discretion to juries to determine whether it was appropriate. However, mandatory death penalties were unconstitutional, it held, even though some states believed that mandatory penalties were necessary to eliminate sentencing discretion.

Furman created an enormous backlash, the Steikers explain, so that capital punishment — which was becoming less and less popular in public opinion — resurged. It became “more of a wedge issue, part of the tough-on-crime political strategy of [President Richard] Nixon, and political entrepreneurs exploited the resentment at the Supreme Court’s intervention in the death penalty,” says Jordan Steiker, who has frequently taught at Harvard Law School, most recently in 2018 as the Touroff-Glueck Visiting Professor of Law and Psychiatry. “In the short term, the death penalty became more vigorous, there were more death sentences, and by the 1990s, there were many more executions than we were having pre- Furman .”

At least initially, then, “the Supreme Court intervention [in Furman ] not only didn’t kill the death penalty but actually made it stronger when it was reinstated,” says Carol Steiker, something she sees as an “unintended and unforeseen consequence” of the case.

Birth of the capital defense bar

But there was another unforeseen consequence of Furman , one that Jordan Steiker describes as “probably more important and long-lasting” — the birth of a large and highly skilled capital defense bar. 

With the resurrection of the death penalty, new, sophisticated institutions were created and staffed by passionate and skilled anti-capital lawyers: state offices for capital representation at the trial, appellate, and post-conviction levels; capital habeas corpus units within state and federal public defenders’ offices; and numerous non-governmental nonprofits, such as Bryan Stevenson ’85’s Equal Justice Initiative. Today, “we have a whole legion of much more focused and talented advocates working on behalf of people facing capital charges or sentenced to death,” says Jordan Steiker.

Capital litigation has become far more complex, and the costs have soared. This has helped persuade many local prosecutors to avoid seeking the death penalty.

With these developments, as well as the Supreme Court’s imposition of special procedural requirements for cases involving the death penalty, capital litigation has become far more complex, and the costs have soared. “The constitutional decisions post- Furman have not imposed the most rigorous scrutiny of capital practices,” says Jordan Steiker, “but they have produced institutional actors who have made the death penalty much less attractive as a practical matter because to do it reasonably well is just exorbitantly expensive.” This has helped persuade many local prosecutors to avoid seeking the death penalty and has led to an “extraordinary decline in capital proceedings,” he says.

The current Supreme Court has signaled greater willingness to affirm capital sentences than in the recent past, says Jordan Steiker, and some jurisdictions have embraced that signal. The Oklahoma Court of Criminal Appeals had scheduled nearly one execution a month between 2022 and 2024 (although at the request of the new attorney general, the pace has now been slowed to no more than one every 60 days). In Texas, on the other hand, two death sentences were imposed in 2022, which contrasts starkly with the 1990s, when Texas juries were handing out more than 40 a year, Jordan Steiker says. “The practice on the ground is withering in part because of the institutions built in response to Furman ,” he says.

Local prosecutors and state courts take over

Other factors besides cost have decreased the public’s appetite for the death penalty, including media attention to, and public awareness of, the number of innocent people sentenced to death. Since 1973, at least 190 people who were wrongly convicted and sentenced to death have been exonerated, according to the Death Penalty Information Center. For that and other reasons, including declining crime rates, there has been a dramatic decline in public support for the death penalty over the past 20 years. Though the 2021 Gallup poll found that 54% of respondents continued to support it, that is the lowest number in the annual poll since 1972. 

Erica Medley LL.M. ’22 was a prosecutor in the U.S. Air Force before matriculating at HLS. When she was a schoolgirl, in Oregon, two of her friends were raped and murdered by a neighbor, Ward Weaver III. When Weaver received two life sentences, “It made no sense,” Medley recalls. “I thought he should have gotten the death penalty.” When Medley enrolled in Carol Steiker’s class on capital punishment in fall 2021, she was among the very few students who supported the death penalty, according to an informal online class poll. 

But before the first class, Medley did a complete reversal sparked by reading the course materials. “I was so overwhelmed reading everything that I did a 180. It was that fast,” says Medley, who was persuaded by the evidence of the racially disparate impact of the death penalty, its exorbitant expense compared with that of prison sentences, the number of people on death row who turn out to be innocent, and the fact that no other peer nations still impose the penalty.

The shifting demographics of urban counties are also having an effect on the use of the death penalty across the country since such counties are often the only places that can afford to prosecute many capital cases, says Jordan Steiker. As these counties become less politically conservative, they are increasingly controlled by “less zealous prosecutors,” he says. Harris County, Texas, which includes Houston, and Dallas County were “longstanding conservative-controlled political entities, and now they’re not. Now many prosecutors run not on the death penalty but away from the death penalty. That’s a very significant shift.” 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate.” Jordan Steiker

And, just as the resurgence of the death penalty in the 1980s and ’90s paralleled public reaction to a crime surge, a drop in death penalty cases mirrors what has generally been a long-term decline in the homicide rate, as well as public concerns about mass incarceration and racial inequities in the criminal justice system, says Carol Steiker, faculty sponsor of the Capital Punishment Clinic, through which Harvard Law students are placed in externships at capital defense organizations around the country.

And the past 16 years have seen a growing legislative trend toward abolishing the death penalty. In 2007, 38 states retained it; today, there are only 27. In 2021, Virginia, which has executed more people than any other state, became the first Southern state to abolish capital punishment. It was preceded by legislative repeals in Colorado, New Jersey, Illinois, and Connecticut, among other states. In Washington state, the Supreme Court found the death penalty unconstitutional under the state constitution because it was used in an arbitrary and racially biased manner. 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate,” says Jordan Steiker. 

“I think in the short term we’ll end up having more executions because of the Supreme Court’s reluctance to impede them, even though executions have been in as much of a decline as death sentences,” he adds. But with fewer capital sentences taking place, “death row has been shrinking considerably, and at some point we’ll have a death row that seems inconsequential as part of our criminal justice system.” 

Furman’s ultimate impact?

In the end, then, was Furman a victory for those who brought the case? “That’s a good question,” says Jordan Steiker. “There’s one point of view that I’m sympathetic to, that says that Furman revived a practice that was dying on the ground, and had there been no intervention, we might not have had a revival and then a second decline.”

On the other hand, when Michael Meltsner, one of the lawyers on the LDF team who brought Furman , speaks to Carol Steiker’s capital punishment class each year, he emphasizes that there were 629 people on death row in 1972 whose lives were saved by Furman.

“So in that sense, it was a tremendous victory,” says Carol Steiker. “It was a reset moment.”

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5 Death Penalty Essays Everyone Should Know

Capital punishment is an ancient practice. It’s one that human rights defenders strongly oppose and consider as inhumane and cruel. In 2019, Amnesty International reported the lowest number of executions in about a decade. Most executions occurred in China, Iran, Saudi Arabia, Iraq, and Egypt . The United States is the only developed western country still using capital punishment. What does this say about the US? Here are five essays about the death penalty everyone should read:

“When We Kill”

By: Nicholas Kristof | From: The New York Times 2019

In this excellent essay, Pulitizer-winner Nicholas Kristof explains how he first became interested in the death penalty. He failed to write about a man on death row in Texas. The man, Cameron Todd Willingham, was executed in 2004. Later evidence showed that the crime he supposedly committed – lighting his house on fire and killing his three kids – was more likely an accident. In “When We Kill,” Kristof puts preconceived notions about the death penalty under the microscope. These include opinions such as only guilty people are executed, that those guilty people “deserve” to die, and the death penalty deters crime and saves money. Based on his investigations, Kristof concludes that they are all wrong.

Nicholas Kristof has been a Times columnist since 2001. He’s the winner of two Pulitizer Prices for his coverage of China and the Darfur genocide.

“An Inhumane Way of Death”

By: Willie Jasper Darden, Jr.

Willie Jasper Darden, Jr. was on death row for 14 years. In his essay, he opens with the line, “Ironically, there is probably more hope on death row than would be found in most other places.” He states that everyone is capable of murder, questioning if people who support capital punishment are just as guilty as the people they execute. Darden goes on to say that if every murderer was executed, there would be 20,000 killed per day. Instead, a person is put on death row for something like flawed wording in an appeal. Darden feels like he was picked at random, like someone who gets a terminal illness. This essay is important to read as it gives readers a deeper, more personal insight into death row.

Willie Jasper Darden, Jr. was sentenced to death in 1974 for murder. During his time on death row, he advocated for his innocence and pointed out problems with his trial, such as the jury pool that excluded black people. Despite worldwide support for Darden from public figures like the Pope, Darden was executed in 1988.

“We Need To Talk About An Injustice”

By: Bryan Stevenson | From: TED 2012

This piece is a transcript of Bryan Stevenson’s 2012 TED talk, but we feel it’s important to include because of Stevenson’s contributions to criminal justice. In the talk, Stevenson discusses the death penalty at several points. He points out that for years, we’ve been taught to ask the question, “Do people deserve to die for their crimes?” Stevenson brings up another question we should ask: “Do we deserve to kill?” He also describes the American death penalty system as defined by “error.” Somehow, society has been able to disconnect itself from this problem even as minorities are disproportionately executed in a country with a history of slavery.

Bryan Stevenson is a lawyer, founder of the Equal Justice Initiative, and author. He’s argued in courts, including the Supreme Court, on behalf of the poor, minorities, and children. A film based on his book Just Mercy was released in 2019 starring Michael B. Jordan and Jamie Foxx.

“I Know What It’s Like To Carry Out Executions”

By: S. Frank Thompson | From: The Atlantic 2019

In the death penalty debate, we often hear from the family of the victims and sometimes from those on death row. What about those responsible for facilitating an execution? In this opinion piece, a former superintendent from the Oregon State Penitentiary outlines his background. He carried out the only two executions in Oregon in the past 55 years, describing it as having a “profound and traumatic effect” on him. In his decades working as a correctional officer, he concluded that the death penalty is not working . The United States should not enact federal capital punishment.

Frank Thompson served as the superintendent of OSP from 1994-1998. Before that, he served in the military and law enforcement. When he first started at OSP, he supported the death penalty. He changed his mind when he observed the protocols firsthand and then had to conduct an execution.

“There Is No Such Thing As Closure on Death Row”

By: Paul Brown | From: The Marshall Project 2019

This essay is from Paul Brown, a death row inmate in Raleigh, North Carolina. He recalls the moment of his sentencing in a cold courtroom in August. The prosecutor used the term “closure” when justifying a death sentence. Who is this closure for? Brown theorizes that the prosecutors are getting closure as they end another case, but even then, the cases are just a way to further their careers. Is it for victims’ families? Brown is doubtful, as the death sentence is pursued even when the families don’t support it. There is no closure for Brown or his family as they wait for his execution. Vivid and deeply-personal, this essay is a must-read for anyone who wonders what it’s like inside the mind of a death row inmate.

Paul Brown has been on death row since 2000 for a double murder. He is a contributing writer to Prison Writers and shares essays on topics such as his childhood, his life as a prisoner, and more.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

Arguments for and Against the Death Penalty

Click the buttons below to view arguments and testimony on each topic.

The death penalty deters future murders.

Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.

For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced results showing that for every inmate who was executed, 7 lives were spared because others were deterred from committing murder. Similar results have been produced by disciples of Ehrlich in follow-up studies.

Moreover, even if some studies regarding deterrence are inconclusive, that is only because the death penalty is rarely used and takes years before an execution is actually carried out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty.

Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the question of deterrence closely, wrote: “Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.”

Finally, the death penalty certainly “deters” the murderer who is executed. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in prison is prevented from robbing on the streets. Vicious murderers must be killed to prevent them from murdering again, either in prison, or in society if they should get out. Both as a deterrent and as a form of permanent incapacitation, the death penalty helps to prevent future crime.

Those who believe that deterrence justifies the execution of certain offenders bear the burden of proving that the death penalty is a deterrent. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison. The Ehrlich studies have been widely discredited. In fact, some criminologists, such as William Bowers of Northeastern University, maintain that the death penalty has the opposite effect: that is, society is brutalized by the use of the death penalty, and this increases the likelihood of more murder. Even most supporters of the death penalty now place little or no weight on deterrence as a serious justification for its continued use.

States in the United States that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the U.S. is compared to countries similar to it. The U.S., with the death penalty, has a higher murder rate than the countries of Europe or Canada, which do not use the death penalty.

The death penalty is not a deterrent because most people who commit murders either do not expect to be caught or do not carefully weigh the differences between a possible execution and life in prison before they act. Frequently, murders are committed in moments of passion or anger, or by criminals who are substance abusers and acted impulsively. As someone who presided over many of Texas’s executions, former Texas Attorney General Jim Mattox has remarked, “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you’ll find that the murder was committed under severe drug and alcohol abuse.”

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of life imprisonment. A 2012 report released by the prestigious National Research Council of the National Academies and based on a review of more than three decades of research, concluded that studies claiming a deterrent effect on murder rates from the death penalty are fundamentally flawed. A survey of the former and present presidents of the country’s top academic criminological societies found that 84% of these experts rejected the notion that research had demonstrated any deterrent effect from the death penalty .

Once in prison, those serving life sentences often settle into a routine and are less of a threat to commit violence than other prisoners. Moreover, most states now have a sentence of life without parole. Prisoners who are given this sentence will never be released. Thus, the safety of society can be assured without using the death penalty.

Ernest van den Haag Professor of Jurisprudence and Public Policy, Fordham University. Excerpts from ” The Ultimate Punishment: A Defense,” (Harvard Law Review Association, 1986)

“Execution of those who have committed heinous murders may deter only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of.”

“Most abolitionists acknowledge that they would continue to favor abolition even if the death penalty were shown to deter more murders than alternatives could deter. Abolitionists appear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers.

Deterrence is not altogether decisive for me either. I would favor retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment. Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers not deterred by the thought of imprisonment. Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the possibility, or even the probability, that executing them would not deter others. Whereas the life of the victims who might be saved are valuable, that of the murderer has only negative value, because of his crime. Surely the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.”

“We threaten punishments in order to deter crime. We impose them not only to make the threats credible but also as retribution (justice) for the crimes that were not deterred. Threats and punishments are necessary to deter and deterrence is a sufficient practical justification for them. Retribution is an independent moral justification. Although penalties can be unwise, repulsive, or inappropriate, and those punished can be pitiable, in a sense the infliction of legal punishment on a guilty person cannot be unjust. By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime. The punishment he suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. Thus, the death penalty cannot be unjust to the guilty criminal.”

Full text can be found at PBS.org .

Hugo Adam Bedau (deceased) Austin Fletcher Professor of Philosophy, Tufts University Excerpts from “The Case Against The Death Penalty” (Copyright 1997, American Civil Liberties Union)

“Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated….

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. In such cases, violence is inflicted by persons heedless of the consequences to themselves as well as to others….

If, however, severe punishment can deter crime, then long-term imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states….

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between l973 and l984, for example, lethal assaults against police were not significantly more, or less, frequent in abolitionist states than in death-penalty states. There is ‘no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment.’ (Bailey and Peterson, Criminology (1987))

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners; the vast majority (84%) were killed in death penalty jurisdictions. During the same period about 2% of all assaults on prison staff were committed by inmates in abolition jurisdictions. Evidently, the threat of the death penalty ‘does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.’ (Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982))

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.”

Click here for the full text from the ACLU website.

Retribution

A just society requires the taking of a life for a life.

When someone takes a life, the balance of justice is disturbed. Unless that balance is restored, society succumbs to a rule of violence. Only the taking of the murderer’s life restores the balance and allows society to show convincingly that murder is an intolerable crime which will be punished in kind.

Retribution has its basis in religious values, which have historically maintained that it is proper to take an “eye for an eye” and a life for a life.

Although the victim and the victim’s family cannot be restored to the status which preceded the murder, at least an execution brings closure to the murderer’s crime (and closure to the ordeal for the victim’s family) and ensures that the murderer will create no more victims.

For the most cruel and heinous crimes, the ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value society places on protecting lives.

Robert Macy, District Attorney of Oklahoma City, described his concept of the need for retribution in one case: “In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lie in some prison with three meals a day, clean sheets, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die.”

Retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.

The emotional impulse for revenge is not a sufficient justification for invoking a system of capital punishment, with all its accompanying problems and risks. Our laws and criminal justice system should lead us to higher principles that demonstrate a complete respect for life, even the life of a murderer. Encouraging our basest motives of revenge, which ends in another killing, extends the chain of violence. Allowing executions sanctions killing as a form of ‘pay-back.’

Many victims’ families denounce the use of the death penalty. Using an execution to try to right the wrong of their loss is an affront to them and only causes more pain. For example, Bud Welch’s daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his first reaction was to wish that those who committed this terrible crime be killed, he ultimately realized that such killing “is simply vengeance; and it was vengeance that killed Julie…. Vengeance is a strong and natural emotion. But it has no place in our justice system.”

The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of a murderer is a similarly disproportionate punishment, especially in light of the fact that the U.S. executes only a small percentage of those convicted of murder, and these defendants are typically not the worst offenders but merely the ones with the fewest resources to defend themselves.

Louis P. Pojman Author and Professor of Philosophy, U.S. Military Academy. Excerpt from “The Death Penalty: For and Against,” (Rowman & Littlefield Publishers, Inc., 1998)

“[Opponents of the capital punishment often put forth the following argument:] Perhaps the murderer deserves to die, but what authority does the state have to execute him or her? Both the Old and New Testament says, “’Vengeance is mine, I will repay,’ says the Lord” (Prov. 25:21 and Romans 12:19). You need special authority to justify taking the life of a human being.

The objector fails to note that the New Testament passage continues with a support of the right of the state to execute criminals in the name of God: “Let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists what God has appointed, and those who resist will incur judgment…. If you do wrong, be afraid, for [the authority] does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer” (Romans 13: 1-4). So, according to the Bible, the authority to punish, which presumably includes the death penalty, comes from God.

But we need not appeal to a religious justification for capital punishment. We can site the state’s role in dispensing justice. Just as the state has the authority (and duty) to act justly in allocating scarce resources, in meeting minimal needs of its (deserving) citizens, in defending its citizens from violence and crime, and in not waging unjust wars; so too does it have the authority, flowing from its mission to promote justice and the good of its people, to punish the criminal. If the criminal, as one who has forfeited a right to life, deserves to be executed, especially if it will likely deter would-be murderers, the state has a duty to execute those convicted of first-degree murder.”

National Council of Synagogues and the Bishops’ Committee for Ecumenical and Interreligious Affairs of the National Conference of Catholic Bishops Excerpts from “To End the Death Penalty: A Report of the National Jewish/Catholic Consultation” (December, 1999)

“Some would argue that the death penalty is needed as a means of retributive justice, to balance out the crime with the punishment. This reflects a natural concern of society, and especially of victims and their families. Yet we believe that we are called to seek a higher road even while punishing the guilty, for example through long and in some cases life-long incarceration, so that the healing of all can ultimately take place.

Some would argue that the death penalty will teach society at large the seriousness of crime. Yet we say that teaching people to respond to violence with violence will, again, only breed more violence.

The strongest argument of all [in favor of the death penalty] is the deep pain and grief of the families of victims, and their quite natural desire to see punishment meted out to those who have plunged them into such agony. Yet it is the clear teaching of our traditions that this pain and suffering cannot be healed simply through the retribution of capital punishment or by vengeance. It is a difficult and long process of healing which comes about through personal growth and God’s grace. We agree that much more must be done by the religious community and by society at large to solace and care for the grieving families of the victims of violent crime.

Recent statements of the Reform and Conservative movements in Judaism, and of the U.S. Catholic Conference sum up well the increasingly strong convictions shared by Jews and Catholics…:

‘Respect for all human life and opposition to the violence in our society are at the root of our long-standing opposition (as bishops) to the death penalty. We see the death penalty as perpetuating a cycle of violence and promoting a sense of vengeance in our culture. As we said in Confronting the Culture of Violence: ‘We cannot teach that killing is wrong by killing.’ We oppose capital punishment not just for what it does to those guilty of horrible crimes, but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.’1

We affirm that we came to these conclusions because of our shared understanding of the sanctity of human life. We have committed ourselves to work together, and each within our own communities, toward ending the death penalty.” Endnote 1. Statement of the Administrative Committee of the United States Catholic Conference, March 24, 1999.

The risk of executing the innocent precludes the use of the death penalty.

The death penalty alone imposes an irrevocable sentence. Once an inmate is executed, nothing can be done to make amends if a mistake has been made. There is considerable evidence that many mistakes have been made in sentencing people to death. Since 1973, over 180 people have been released from death row after evidence of their innocence emerged. During the same period of time, over 1,500 people have been executed. Thus, for every 8.3 people executed, we have found one person on death row who never should have been convicted. These statistics represent an intolerable risk of executing the innocent. If an automobile manufacturer operated with similar failure rates, it would be run out of business.

Our capital punishment system is unreliable. A study by Columbia University Law School found that two thirds of all capital trials contained serious errors. When the cases were retried, over 80% of the defendants were not sentenced to death and 7% were completely acquitted.

Many of the releases of innocent defendants from death row came about as a result of factors outside of the justice system. Recently, journalism students in Illinois were assigned to investigate the case of a man who was scheduled to be executed, after the system of appeals had rejected his legal claims. The students discovered that one witness had lied at the original trial, and they were able to find another man, who confessed to the crime on videotape and was later convicted of the murder. The innocent man who was released was very fortunate, but he was spared because of the informal efforts of concerned citizens, not because of the justice system.

In other cases, DNA testing has exonerated death row inmates. Here, too, the justice system had concluded that these defendants were guilty and deserving of the death penalty. DNA testing became available only in the early 1990s, due to advancements in science. If this testing had not been discovered until ten years later, many of these inmates would have been executed. And if DNA testing had been applied to earlier cases where inmates were executed in the 1970s and 80s, the odds are high that it would have proven that some of them were innocent as well.

Society takes many risks in which innocent lives can be lost. We build bridges, knowing that statistically some workers will be killed during construction; we take great precautions to reduce the number of unintended fatalities. But wrongful executions are a preventable risk. By substituting a sentence of life without parole, we meet society’s needs of punishment and protection without running the risk of an erroneous and irrevocable punishment.

There is no proof that any innocent person has actually been executed since increased safeguards and appeals were added to our death penalty system in the 1970s. Even if such executions have occurred, they are very rare. Imprisoning innocent people is also wrong, but we cannot empty the prisons because of that minimal risk. If improvements are needed in the system of representation, or in the use of scientific evidence such as DNA testing, then those reforms should be instituted. However, the need for reform is not a reason to abolish the death penalty.

Besides, many of the claims of innocence by those who have been released from death row are actually based on legal technicalities. Just because someone’s conviction is overturned years later and the prosecutor decides not to retry him, does not mean he is actually innocent.

If it can be shown that someone is innocent, surely a governor would grant clemency and spare the person. Hypothetical claims of innocence are usually just delaying tactics to put off the execution as long as possible. Given our thorough system of appeals through numerous state and federal courts, the execution of an innocent individual today is almost impossible. Even the theoretical execution of an innocent person can be justified because the death penalty saves lives by deterring other killings.

Gerald Kogan, Former Florida Supreme Court Chief Justice Excerpts from a speech given in Orlando, Florida, October 23, 1999 “[T]here is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, [as] prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed.

“And you can make these statements when you understand the dynamics of the criminal justice system, when you understand how the State makes deals with more culpable defendants in a capital case, offers them light sentences in exchange for their testimony against another participant or, in some cases, in fact, gives them immunity from prosecution so that they can secure their testimony; the use of jailhouse confessions, like people who say, ‘I was in the cell with so-and-so and they confessed to me,’ or using those particular confessions, the validity of which there has been great doubt. And yet, you see the uneven application of the death penalty where, in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty. These things begin to weigh very heavily upon you. And under our system, this is the system we have. And that is, we are human beings administering an imperfect system.”

“And how about those people who are still sitting on death row today, who may be factually innocent but cannot prove their particular case very simply because there is no DNA evidence in their case that can be used to exonerate them? Of course, in most cases, you’re not going to have that kind of DNA evidence, so there is no way and there is no hope for them to be saved from what may be one of the biggest mistakes that our society can make.”

The entire speech by Justice Kogan is available here.

Paul G. Cassell Associate Professor of Law, University of Utah, College of Law, and former law clerk to Chief Justice Warren E. Burger. Statement before the Committee on the Judiciary, United States House of Representatives, Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases (July 23, 1993)

“Given the fallibility of human judgments, the possibility exists that the use of capital punishment may result in the execution of an innocent person. The Senate Judiciary Committee has previously found this risk to be ‘minimal,’ a view shared by numerous scholars. As Justice Powell has noted commenting on the numerous state capital cases that have come before the Supreme Court, the ‘unprecedented safeguards’ already inherent in capital sentencing statutes ‘ensure a degree of care in the imposition of the sentence of death that can only be described as unique.’”

“Our present system of capital punishment limits the ultimate penalty to certain specifically-defined crimes and even then, permit the penalty of death only when the jury finds that the aggravating circumstances in the case outweigh all mitigating circumstances. The system further provides judicial review of capital cases. Finally, before capital sentences are carried out, the governor or other executive official will review the sentence to insure that it is a just one, a determination that undoubtedly considers the evidence of the condemned defendant’s guilt. Once all of those decisionmakers have agreed that a death sentence is appropriate, innocent lives would be lost from failure to impose the sentence.”

“Capital sentences, when carried out, save innocent lives by permanently incapacitating murderers. Some persons who commit capital homicide will slay other innocent persons if given the opportunity to do so. The death penalty is the most effective means of preventing such killers from repeating their crimes. The next most serious penalty, life imprisonment without possibility of parole, prevents murderers from committing some crimes but does not prevent them from murdering in prison.”

“The mistaken release of guilty murderers should be of far greater concern than the speculative and heretofore nonexistent risk of the mistaken execution of an innocent person.”

Full text can be found here.

Arbitrariness & Discrimination

The death penalty is applied unfairly and should not be used.

In practice, the death penalty does not single out the worst offenders. Rather, it selects an arbitrary group based on such irrational factors as the quality of the defense counsel, the county in which the crime was committed, or the race of the defendant or victim.

Almost all defendants facing the death penalty cannot afford their own attorney. Hence, they are dependent on the quality of the lawyers assigned by the state, many of whom lack experience in capital cases or are so underpaid that they fail to investigate the case properly. A poorly represented defendant is much more likely to be convicted and given a death sentence.

With respect to race, studies have repeatedly shown that a death sentence is far more likely where a white person is murdered than where a Black person is murdered. The death penalty is racially divisive because it appears to count white lives as more valuable than Black lives. Since the death penalty was reinstated in 1976, 296 Black defendants have been executed for the murder of a white victim, while only 31 white defendants have been executed for the murder of a Black victim. Such racial disparities have existed over the history of the death penalty and appear to be largely intractable.

It is arbitrary when someone in one county or state receives the death penalty, but someone who commits a comparable crime in another county or state is given a life sentence. Prosecutors have enormous discretion about when to seek the death penalty and when to settle for a plea bargain. Often those who can only afford a minimal defense are selected for the death penalty. Until race and other arbitrary factors, like economics and geography, can be eliminated as a determinant of who lives and who dies, the death penalty must not be used.

Discretion has always been an essential part of our system of justice. No one expects the prosecutor to pursue every possible offense or punishment, nor do we expect the same sentence to be imposed just because two crimes appear similar. Each crime is unique, both because the circumstances of each victim are different and because each defendant is different. The U.S. Supreme Court has held that a mandatory death penalty which applied to everyone convicted of first degree murder would be unconstitutional. Hence, we must give prosecutors and juries some discretion.

In fact, more white people are executed in this country than black people. And even if blacks are disproportionately represented on death row, proportionately blacks commit more murders than whites. Moreover, the Supreme Court has rejected the use of statistical studies which claim racial bias as the sole reason for overturning a death sentence.

Even if the death penalty punishes some while sparing others, it does not follow that everyone should be spared. The guilty should still be punished appropriately, even if some do escape proper punishment unfairly. The death penalty should apply to killers of black people as well as to killers of whites. High paid, skillful lawyers should not be able to get some defendants off on technicalities. The existence of some systemic problems is no reason to abandon the whole death penalty system.

Reverend Jesse L. Jackson, Sr. President and Chief Executive Officer, Rainbow/PUSH Coalition, Inc. Excerpt from “Legal Lynching: Racism, Injustice & the Death Penalty,” (Marlowe & Company, 1996)

“Who receives the death penalty has less to do with the violence of the crime than with the color of the criminal’s skin, or more often, the color of the victim’s skin. Murder — always tragic — seems to be a more heinous and despicable crime in some states than in others. Women who kill and who are killed are judged by different standards than are men who are murderers and victims.

The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups.

The majority of Americans who support the death penalty believe, or wish to believe, that legitimate factors such as the violence and cruelty with which the crime was committed, a defendant’s culpability or history of violence, and the number of victims involved determine who is sentenced to life in prison and who receives the ultimate punishment. The numbers, however, tell a different story. They confirm the terrible truth that bias and discrimination warp our nation’s judicial system at the very time it matters most — in matters of life and death. The factors that determine who will live and who will die — race, sex, and geography — are the very same ones that blind justice was meant to ignore. This prejudicial distribution should be a moral outrage to every American.”

Justice Lewis Powell United States Supreme Court Justice excerpts from McCleskey v. Kemp, 481 U.S. 279 (1987) (footnotes and citations omitted)

(Mr. McCleskey, a black man, was convicted and sentenced to death in 1978 for killing a white police officer while robbing a store. Mr. McCleskey appealed his conviction and death sentence, claiming racial discrimination in the application of Georgia’s death penalty. He presented statistical analysis showing a pattern of sentencing disparities based primarily on the race of the victim. The analysis indicated that black defendants who killed white victims had the greatest likelihood of receiving the death penalty. Writing the majority opinion for the Supreme Court, Justice Powell held that statistical studies on race by themselves were an insufficient basis for overturning the death penalty.)

“[T]he claim that [t]his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since [this] claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decision making. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not ‘plac[e] totally unrealistic conditions on its use.’ (Gregg v. Georgia)”

The entire decision can be found here.

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10 facts about the death penalty in the U.S.

Most U.S. adults support the death penalty for people convicted of murder, according to an April 2021 Pew Research Center survey . At the same time, majorities believe the death penalty is not applied in a racially neutral way, does not deter people from committing serious crimes and does not have enough safeguards to prevent an innocent person from being executed.

Use of the death penalty has gradually declined in the United States in recent decades. A growing number of states have abolished it, and death sentences and executions have become less common. But the story is not one of continuous decline across all levels of government. While state-level executions have decreased, the federal government put more prisoners to death under President Donald Trump than at any point since the U.S. Supreme Court reinstated capital punishment in 1976.

As debates over the death penalty continue in the U.S. , here’s a closer look at public opinion on the issue, as well as key facts about the nation’s use of capital punishment.

This Pew Research Center analysis examines public opinion about the death penalty in the United States and explores how the nation has used capital punishment in recent decades. 

The public opinion findings cited here are based primarily on a Pew Research Center survey of 5,109 U.S. adults, conducted from April 5 to 11, 2021. Everyone who took part in the survey is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about the ATP’s methodology . Here are the  questions used  from this survey, along with responses, and its  methodology .

Findings about the administration of the death penalty – including the number of states with and without capital punishment, the annual number of death sentences and executions, the demographics of those on death row and the average amount of time spent on death row – come from the Death Penalty Information Center and the Bureau of Justice Statistics.

Six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, according to the April 2021 survey. A similar share (64%) say the death penalty is morally justified when someone commits a crime like murder.

Support for capital punishment is strongly associated with the view that it is morally justified in certain cases. Nine-in-ten of those who favor the death penalty say it is morally justified when someone commits a crime like murder; only a quarter of those who oppose capital punishment see it as morally justified.

A majority of Americans have concerns about the fairness of the death penalty and whether it serves as a deterrent against serious crime. More than half of U.S. adults (56%) say Black people are more likely than White people to be sentenced to death for committing similar crimes. About six-in-ten (63%) say the death penalty does not deter people from committing serious crimes, and nearly eight-in-ten (78%) say there is some risk that an innocent person will be executed.

Opinions about the death penalty vary by party, education and race and ethnicity. Republicans and Republican-leaning independents are much more likely than Democrats and Democratic leaners to favor the death penalty for convicted murderers (77% vs. 46%). Those with less formal education are also more likely to support it: Around two-thirds of those with a high school diploma or less (68%) favor the death penalty, compared with 63% of those with some college education, 49% of those with a bachelor’s degree and 44% of those with a postgraduate degree. Majorities of White (63%), Asian (63%) and Hispanic adults (56%) support the death penalty, but Black adults are evenly divided, with 49% in favor and 49% opposed.

Views of the death penalty differ by religious affiliation . Around two-thirds of Protestants in the U.S. (66%) favor capital punishment, though support is much higher among White evangelical Protestants (75%) and White non-evangelical Protestants (73%) than it is among Black Protestants (50%). Around six-in-ten Catholics (58%) also support capital punishment, a figure that includes 61% of Hispanic Catholics and 56% of White Catholics.

Opposition to the death penalty also varies among the religiously unaffiliated. Around two-thirds of atheists (65%) oppose it, as do more than half of agnostics (57%). Among those who say their religion is “nothing in particular,” 63% support capital punishment.

Support for the death penalty is consistently higher in online polls than in phone polls. Survey respondents sometimes give different answers depending on how a poll is conducted. In a series of contemporaneous Pew Research Center surveys fielded online and on the phone between September 2019 and August 2020, Americans consistently expressed more support for the death penalty in a self-administered online format than in a survey administered on the phone by a live interviewer. This pattern was more pronounced among Democrats and Democratic-leaning independents than among Republicans and GOP leaners, according to an analysis of the survey results .

Phone polls have shown a long-term decline in public support for the death penalty. In phone surveys conducted by Pew Research Center between 1996 and 2020, the share of U.S. adults who favor the death penalty fell from 78% to 52%, while the share of Americans expressing opposition rose from 18% to 44%. Phone surveys conducted by Gallup found a similar decrease in support for capital punishment during this time span.

A majority of states have the death penalty, but far fewer use it regularly. As of July 2021, the death penalty is authorized by 27 states and the federal government – including the U.S. Department of Justice and the U.S. military – and prohibited in 23 states and the District of Columbia, according to the Death Penalty Information Center . But even in many of the jurisdictions that authorize the death penalty, executions are rare: 13 of these states, along with the U.S. military, haven’t carried out an execution in a decade or more. That includes three states – California , Oregon and Pennsylvania – where governors have imposed formal moratoriums on executions.

A growing number of states have done away with the death penalty in recent years, either through legislation or a court ruling. Virginia, which has carried out more executions than any state except Texas since 1976, abolished capital punishment in 2021. It followed Colorado (2020), New Hampshire (2019), Washington (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), New Jersey (2007) and New York (2004).

Death sentences have steadily decreased in recent decades. There were 2,570 people on death row in the U.S. at the end of 2019, down 29% from a peak of 3,601 at the end of 2000, according to the Bureau of Justice Statistics (BJS). New death sentences have also declined sharply: 31 people were sentenced to death in 2019, far below the more than 320 who received death sentences each year between 1994 and 1996. In recent years, prosecutors in some U.S. cities – including Orlando and Philadelphia – have vowed not to seek the death penalty, citing concerns over its application.

Nearly all (98%) of the people who were on death row at the end of 2019 were men. Both the mean and median age of the nation’s death row population was 51. Black prisoners accounted for 41% of death row inmates, far higher than their 13% share of the nation’s adult population that year. White prisoners accounted for 56%, compared with their 77% share of the adult population. (For both Black and White Americans, these figures include those who identify as Hispanic. Overall, about 15% of death row prisoners in 2019 identified as Hispanic, according to BJS.)

Annual executions are far below their peak level. Nationally, 17 people were put to death in 2020, the fewest since 1991 and far below the modern peak of 98 in 1999, according to BJS and the Death Penalty Information Center. The COVID-19 outbreak disrupted legal proceedings in much of the country in 2020, causing some executions to be postponed .

Even as the overall number of executions in the U.S. fell to a 29-year low in 2020, the federal government ramped up its use of the death penalty. The Trump administration executed 10 prisoners in 2020 and another three in January 2021; prior to 2020, the federal government had carried out a total of three executions since 1976.

The Biden administration has taken a different approach from its predecessor. In July 2021, Attorney General Merrick Garland ordered a halt in federal executions while the Justice Department reviews its policies and procedures.

The average time between sentencing and execution in the U.S. has increased sharply since the 1980s. In 1984, the average time between sentencing and execution was 74 months, or a little over six years, according to BJS . By 2019, that figure had more than tripled to 264 months, or 22 years. The average prisoner awaiting execution at the end of 2019, meanwhile, had spent nearly 19 years on death row.

A variety of factors explain the increase in time spent on death row, including lengthy legal appeals by those sentenced to death and challenges to the way states and the federal government carry out executions, including the drugs used in lethal injections. In California, more death row inmates have died from natural causes or suicide than from executions since 1978, according to the state’s Department of Corrections and Rehabilitation .

Note: This is an update to a post originally published May 28, 2015.

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John Gramlich is an associate director at Pew Research Center .

What the data says about crime in the U.S.

Fewer than 1% of federal criminal defendants were acquitted in 2022, before release of video showing tyre nichols’ beating, public views of police conduct had improved modestly, black americans differ from other u.s. adults over whether individual or structural racism is a bigger problem, violent crime is a key midterm voting issue, but what does the data say, most popular.

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Why the Death Penalty Should Not Be Reinstated in Puerto Rico

By Isabela Tasende

Published: July 31, 2021

In 2019, twenty-two people lost their lives to violent crime within the first few weeks of the year in Puerto Rico. The devastation faced by the island after Hurricane María instilled deep fear and insecurity in its residents. A New York Times article written by Alejandría Rosa and Frances Robles discusses the state of the island post-Hurricane María, stating that “nearly 5,000 police officers have quit in the past few years and even a former police chief says she is afraid to leave her house after dark.” The authors go on to highlight the fact that “the island is still one of the most dangerous places in the world,” with Numbeo—a database of user-contributed data about cities and countries worldwide—classifying Puerto Rico as “highly unsafe” (Rosa and Robles). Overwhelmed by this fear, the people of Puerto Rico have become willing to try anything to reduce their insecurity. Some of the responses however have been incredibly radical in their disregard for Puerto Rico’s abolition of the death penalty and respect for human dignity.

A particularly concerning proposal to increase safety in Puerto Rico was put forth by Frank Worley-Lopez, a self-described conservative libertarian writer for the PanAm Post . Lopez writes about political, domestic, and safety issues on the island. His article “Puerto Rico Needs the Death Penalty, Not Superficial Moralism,” is a clear articulation of his perspective that insecurity and violence in Puerto Rico call for the reinstatement of the death penalty. Worley-Lopez claims that this will deter crime and that arguments in opposition to the death penalty are based on “superficial moralism” that is informed by the fact that our population is decidedly Roman Catholic. However, Worley-Lopez’s own claims—in favor of the death penalty—are not well supported. Additionally, his position in favor of the death penalty takes advantage of Puerto Rican’s growing fear for their safety, misleading desperate and vulnerable people. In this essay, I discuss the situation in Puerto Rico in the wake of Hurricane María and challenge Worley-Lopez’s position that the death penalty is the best solution to the high crime rates, violence, and insecurity that Puerto Ricans face.

Worley-Lopez does not overstate the extent to which violent crime inflicts suffering on Puerto Ricans. For example, Gabrielle Gorder an author who writes for InSight Crime goes over the large spike in homicide cases in San Juan—Puerto Rico’s capital—between 2018 and 2019. It is recorded that, after Venezuela, Puerto Rico has the “second deadliest city” on the list of North, South, and Central American countries. Gorder also claims that with “53.5 homicides for every 100,000 inhabitants, [...] the island has become vulnerable to exploitation by gangs and transnational criminal organizations, which are using the island more and more as a stopover point for drug shipments.” Not only that, but crime was made significantly worse by Hurricane María, which impacted Puerto Ricans’ access to water, electricity, telecommunications services, and roads in addition to basic health services. While many of these services have since been restored, the hurricane’s effects on the island’s infrastructure had severe consequences for the safety of Puerto Ricans. Still, while Worley-Lopez is correct in recognizing the grave insecurity that Puerto Ricans face, he completely misses the historical and cultural significance that surrounds the issue of capital punishment in Puerto Rico.

For years, the relationship between Puerto Rico and the United States Federal Government has been key to understanding the conflict surrounding the implementation of the death penalty. In 1953, a memorandum issued by the Secretary-General of the United States first officially recognized Puerto Rico’s status as a “commonwealth” (Gallien). Monique Marie Gallien, a lawyer from Brooklyn Law School, wrote “No Existira la Pena de Muerte: Does the United States Violate Regional Customary Law by Imposing the Death Penalty on Citizens of Puerto Rico” to defend those facing the ultimate punishment. She explains how, previous to the 1953 memorandum, Puerto Rico had already passed a law abolishing the death penalty in 1929. Puerto Rico’s stance against the death penalty conflicted with the stance of the United States federal government. Clashing ideas led to revisions of the Title III of the Omnibus Act, and in “The United States vs. Gerena,” the courts concluded that “all federal law does not automatically apply to Puerto Rico” (Gallien). The U.S. federal government has since attempted to pressure Puerto Rican judges into sentencing criminals with the death penalty. However, the U.S. federal government has not succeeded and Puerto Rican judges have used several arguments to explain their reluctance to give this sentence. For example, they have argued that this sentence should require additional evidence because of its “irrevocability,” and the fact that it challenges the idea that rehabilitation is the most important purpose of the justice system (Gallien). Moreover, judges have given tripartite arguments against the death penalty’s implementation. Initially, Puerto Rican judges claimed that since federal law does not automatically apply to the island, it cannot be mandated that they implement the death penalty (Gallien). Then, they added that since Puerto Rico outlawed the death penalty in its Constitution, and Puerto Rican values are incompatible with the death penalty, it should therefore not be legally pursued as punishment for any crime. In the end, all of these arguments reflect an underlying reluctance on behalf of the Puerto Rican people to embrace capital punishment.

Worley-Lopez fails to recognize this history in his claims about the “superficial moralism” of the death penalty debate in Puerto Rico. While it is true that many hold strong moral and ethical beliefs that capital punishment is an affront to human dignity, the issue is much more nuanced than that. For Puerto Ricans, the issue is seen both under the lens of human rights and through the lens of independence and self-determination from the United States. In an article by the journalist Abby Goodnough, the author articulates that Puerto Ricans believe that a concession on the issue of capital punishment would be like “pouring oil” our beautiful beaches. She discusses the fact that many Puerto Ricans opposed the death penalty, accusing the U.S. Justice Department of efforts to betray our “culture and constitution” (Goodnough). To reduce the issue of reinstating the death penalty to a “superficial moralism” is to disregard the years of resistance and struggle on behalf of the Puerto Rican people to assert our rights, culture, autonomy, and constitution.

Throughout his article, Worley-Lopez uses logical fallacies and exaggerations to make his case, which could result in misleading his readers. Thinking back to the devastation the island faced as a result of Hurricane María, and the way in which it upended the island’s established infrastructure, it’s not hard to see how some Puerto Ricans might be willing to grasp at whatever hope we could find. It’s also not hard to imagine that the impotence, fear, and violence Puerto Ricans experienced might lead some to seek retribution, and thus be more easily convinced by Worley-Lopez’s position. In fact, Worley-Lopez uses exaggeration to make caution for another human being’s life seem ridiculous. He claims that because “There will always be losses; there will always be mistakes.” This exaggeration demonstrates a failure to understand the complexities in what makes the death penalty different than carrying out other actions with the possibility of failure. Worley-Lopez gives examples like the fact that “we can be killed in a car, or our bathtub.” In reality, those examples present the logical fallacy of false equivalence. These two examples present completely different kinds of accidents or mistakes. The odds that someone will die from a car crash are nowhere near the odds of someone being mistakenly convicted of a crime they did not commit and dying from the lethal injections used for capital punishment. It is precisely because one can be certain of the consequences of a lethal injection—that is the end of a human life—that people argue the death penalty should be not be reinstated in Puerto Rico.

Another fallacy of false equivalence that Worley-Lopez uses to present his case in favor of reinstating the death penalty in Puerto Rico is the idea that since governments possess standing armies and armed police, it is therefore coherent to state that they should have the right to use lethal injection against criminals. He claims that “If you believe that the death penalty is too much power for the state to have, then you must also consider support for armed police, the presence of a military of any kind, the right to keep and bear arms, and the right to self-defense” (Worley-Lopez). This creates a false equivalence, an either-or scenario, in which Lopez push his readers to believe that they cannot at the same time support police being armed and disagree with his claim that death penalty should be reinstituted on the island. Worley-Lopez’s argumentative tactics are problematic because he is deploying them with an audience of readers who are concerned for their safety and who feel like they cannot lose the support of the police in order to combat violent crime on the island.

Worley-Lopez’s fearmongering takes even more extreme language in the last sentences of his article, in which he claims that unless the death penalty is used: “The blood you fear will continue to flow in the streets of Puerto Rico.” Worley-Lopez seeks to establish an “us versus them” dichotomy by separating the blood of “good Puerto Ricans” from that of criminal elements, who are on the outside and therefore deserve to be executed. This way, Lopez dehumanizes those who could suffer from wrongful conviction and uses the desire for retribution that many Puerto Ricans already feel to push for his extreme position. In any case, the issue of punishment for criminal activity is much more nuanced than Worley-Lopez articulates and his use of loaded language to tell Puerto Ricans it will be their blood in the streets if the death penalty is not reinstated is not a reasonable conclusion to draw.

Finally, Worley-Lopez’s primary argument hinges on the idea that the death penalty is effective at deterring crime. Further he believes that if the death penalty were reinstated, it would induce fear in the criminals who have terrorized our island. He claims that the fact that “violent criminals have absolutely no fear of government authority” is amongst the three greatest drivers of violence, implying that this can be reduced through capital punishment. This position, however, is not empirically sound. Worley-Lopez’s argument is inconsistent with existing research that capital punishment has no deterrent effect on the levels of violent crime and homicide. It is understood by famous criminologists such as Cesare Beccaria, who wrote “An Essay on Crimes and Punishments,” that “it is not the intenseness of the pain that has the greatest effect on the mind, but its continuance. . . The death of a criminal is a terrible but momentary spectacle and therefore a less efficacious method of deterring others.” Beccaria makes the compelling argument that the death penalty is less effective at deterring crime than sustained punishments such as life sentences.

Practical arguments against the death penalty as a deterrent have been studied and analyzed by a range of criminologists. Most charitably, in 2019 the Death Penalty Information Center claimed that “the National Academy of Sciences has concluded that past studies have neither proven nor disproven a deterrent effect” (“Study: International Data”). This organization has been deemed unbiased and reliable, as it was even described by a pro-death penalty site as “the single most comprehensive authoritative internet resource on the death penalty” (“Death Penalty Links”). The Death Penalty Information Center conducted research on both a national and international scale. Internationally, they discovered that the murder rates in eleven countries that met the specific criteria for evaluation, ten of them “experienced a decline in murder rates in the decade following abolition” of the death penalty (“Study: International Data”). At a national level, the Death Penalty Information Center analysis of data from 1987 to 2015 found that there was “no evidence that the death penalty deters murder or protects police. Instead, the evidence shows that murder rates, [. . .] are consistently higher in death-penalty states than in states that have abolished the death penalty” (“New Podcast”). More specifically, the data showed that in non-death penalty states in the U.S. murder rates were 1.39 times lower and that states who still implemented capital punishment accounted for “12 out of the 16 states with the highest murder rates” (“New Podcast”). All of this goes to show that even though Worley-Lopez frames the issue in a way that assumes the death penalty will cause an end to “the deaths of hundreds of people each year,” in reality, we cannot make this assumption. Homicides are often committed in a manner that does not reflect calculation on the part of the criminal; often homicides are committed under the influence of substances, which makes it so that the fear of death or punishment is not something on the criminal’s mind. Moreover, even those who do plan a crime beforehand may rationalize that they can get away with it unscathed. Worley-Lopez’s argument to reinstate the death penalty in Puerto Rico overlooks all existing data finding no causal relationship in its effectiveness at reducing crime.

In the end, it is clear that Worley-Lopez understands the fear and insecurity that Puerto Ricans experience every single day. However, in attempting to provide a solution to this issue, he omits to mention the historical significance of Puerto Rico’s fight for sovereignty and cultural independence. Additionally, he employs argumentative tactics that mislead his readers into thinking the issue is black and white and inducing more fear into an already frightened population. Finally, Worley-Lopez’s main argument hinges on the idea that the reinstatement of capital punishment in Puerto Rico would result in a significant reduction in crime. However, researchers have so far not found that the death penalty results in increased safety or reductions in violent crime. Worley-Lopez’s position, despite having roots in the legitimate concern regarding increased crime in Puerto Rico after Hurricane María, should not result in a reinstatement of the death penalty.

Still, I recognize that I have not put forth a solution that is as neat and tidy as Worley-Lopez’s, and that this might leave Puerto Ricans feeling hopeless. However, this is precisely because no easy solution exists. The issues of crime and insecurity have their origins in systemic factors that require comprehensive solutions. Harold J. Toro, an assistant professor at Notre Dame’s Keough School of Global Affairs, writes about many of the systemic challenges to crime and punishment in his article “Lessons from Puerto Rico: Inter-country Relationships, Crises, and Human Thriving.” Toro claims that “addressing these issues might require a broad reconceptualization of domestic social policy,” seeking integral human development and flourishing, as opposed to “quick,” simple solutions such as reinstating capital punishment (Toro). Therefore, as we all work to try to solve the urgent problem of violent crime and felt insecurity in Puerto Rico, let us not put our faith in Worley-Lopez’s proposal. While appealing for its simplicity, Worley-Lopez’s solution to reinstate the death penalty offers false hope to our already-struggling population. The death penalty is not a viable option for Puerto Rico because reinstating it ignores our constitution in addition to our efforts to achieve political and cultural sovereignty from the U.S. federal government. Worley-Lopez’s use of loaded language and fallacious reasoning—to implant fear in the minds of Puerto Ricans—is as problematic as his unfounded assumption that capital punishment serves as a deterrent to crime. All of us who care about Puerto Rico cannot and should not embrace Frank Worley-Lopez’s argument to reinstate the death penalty.

Works Cited

Beccaria, Cesare. “An Essay on Crimes and Punishments—Online Library of  Liberty.” Libertyfund.Org , 2019, oll.libertyfund.org/titles/beccaria-an-essay-on-crimes-and-punishments. Accessed 27 Sept. 2020.

“Crime in Puerto Rico.” Numbeo.Com , 2020, www.numbeo.com/crime/country_result.jsp?country=Puerto+Rico. Accessed 27 Sept. 2020.

“Death Penalty Links.” Clarkprosecutor.Org , 2013, www.clarkprosecutor.org/html/links/dplinks.htm. Accessed 27 Sept. 2020.

Gallien, Monique Marie. “‘No Existira La Pena de Muerte’: Does the United States Violate Regional Customary Law by Imposing the Death Penalty on Citizens of Puerto Rico?” Brooklyn Journal of International Law , vol. Vol.30(2), no. ISSN: 0740-4824, Mar. 2005, pp. 727–757. Cengage Learning, Inc.

Goodnough, Abby. “Acquittal in Puerto Rico Averts Fight Over Government's Right to Seek Death Penalty.” New York Times 1 Aug. 2003: Web. 26 Sept. 2020.

Gorder, Gabrielle. “Capital Murder: 2019 Homicide Rates in Latin America’s Capital Cities.” InSight Crime , 5 Mar. 2020, www.insightcrime.org/news/analysis/2019-homicides-latin- america-capital/. Accessed 27 Sept. 2020.

“New Podcast: DPIC Study Finds No Evidence That Death Penalty Deters Murder or Protects Police.” Death Penalty Information Center, 12 Sept. 2017, deathpenaltyinfo.org/news/new-podcast-dpic-study-finds-no-evidence-that-death-penalty-deters-murder-or-protects-police . Accessed 27 Sept. 2020.

Quinones-Betancourt, Cristina. “When Standards Collide: How the Federal Death Penalty Fails the Supreme Court’s Eighth Amendment Evolving Standards of Decency Test When Applied to Puerto Rican Federal Capital Defendants.” Article 5 Cornell Journal of Law and Public Policy , vol. 23, 2013, scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1394&context=cjlpp. Accessed 27 Sept. 2020.

Rosa, Alejandría and Frances Robles “A Wave of Daytime Killings Has Puerto Rico on Edge.” The New York Times , 13 Jan. 2019, www.nytimes.com/2019/01/13/us/puerto-rico-crime-murders-violence.html. Accessed 27 Sept. 2020. 

“Study: International Data Shows Declining Murder Rates After Abolition of the Death Penalty.” Death Penalty Information Center , 4 Jan. 2019, deathpenaltyinfo.org/news/study-international-data-shows-declining-murder-rates-after-abolition-of-death-penalty. Accessed 27 Sept. 2020.

Toro, Harold J. “Lessons from Puerto Rico: Inter-Country Relationships, Crises, and Human

Thriving.” Keough School - University of Notre Dame , Keough School of Global Affairs, 1 Nov. 2020, keough.nd.edu/lessons-from-puerto-rico-inter-country-relationships-crises-and-human-thriving/.

Worley-Lopez, Frank. “Puerto Rico Needs the Death Penalty, Not Superficial Moralism.” PanAm Post , 25 Aug. 2014, https://en.panampost.com/frank-worley-lopez/2014/08/25/puerto-rico-needs-the-death-penalty-not-superficial-moralism/ . Accessed 27 Sept. 2020.

As a reader, do you believe Isabela Tasende’s treatment of her opponent’s argument demonstrates the rhetorical virtue of generosity? Where in the essay does Tasende demonstrate respect for her interlocutor even though she disagrees with his position?

Where in the essay does the writer provide contextual description regarding why she believes her interlocutor’s argument might be persuasive to some Puerto Ricans? By the end of her rebuttal essay are you convinced that the writer has provided adequate contextual information for you to understand why the death penalty is controversial to public stakeholders in Puerto Rico? Do you think Tasende’s argument is effective at casting doubt on her opponent’s claims for an audience of readers who know very little or may be on the fence?

Do you think Tasende’s rebuttal addressed the core of her interlocutor’s argument? Offer at least one suggestion for Tasende to strengthen her rebuttal of her opponent’s argument.

Pick a paragraph from Tasende’s essay you admire. Write two to three sentences saying why you admire this paragraph and how it functions in the essay as a whole.

Isabela Tasende

Isabela Tasende is a Political Science and Economics major from Panama City, Panama. With Venezuelan and Puerto Rican parents, Isabela has a key interest in Latin American politics, as well as the intersection between ethics and public policy. Her essay, “Why the Death Penalty Should Not Be Reinstated in Puerto Rico” tackles Frank Worley Lopez’s articulation of the issue. Looking at the cultural, historical, and ethical significance of capital punishment, Isabela’s paper argues against its reinstatement. She wishes to thank Professor Jessica Shumake for all her support throughout the writing process. In addition, she would like to thank her high school History teacher, Marina Boyd, for teaching her to appreciate the art of reading and writing.

Constitutional_court_of_South_Africa.jpeg

Constitutional Court of South Africa

Bringing Back the Death Penalty in South Africa for Crimes Against Women

by Jade Weiner | Oct 1, 2019

About Jade Weiner

Jade Weiner, “Bringing Back the Death Penalty in South Africa for Crimes Against Women”, (OxHRH Blog, October 2019), <https://ohrh.law.ox.ac.uk/bringing-back-the-death-penalty-in-south-africa-for-crimes-against-women/>, [Date of access].

September is the start of spring in South Africa, marked by warmer weather and blossoming trees. However, this September was marred by brutal xenophobic attacks and lootings, child abductions and the rape and murder of young, vibrant, beautiful women.

On 12 September, Minister Bheki Cele, released the 2018/19 annual crime statistics revealing an increase in the murder rate to 21,022 and reported sexual offenses to 52,420. The number of murders of women and young girls is especially alarming. In South Africa, one woman is killed every three hours .

Communities of all races, ages and religions have taken to social media and the streets, protesting the status quo with marches, sharing experiences and raising awareness. South Africans are demanding accountability of government agencies, self-defence classes, curfews imposed on men and even the death penalty to combat violent crime.

The public outcry from the tragic events of September and their affirmation in official government statistics sparked over 590,000 South Africans signing a  petition calling for the death penalty to be reinstated for crimes against women.

Bringing back the death penalty, despite public demand, is not just a case of instituting a harsher sentence, it is a matter of changing constitutional law. Under the Apartheid regime, convicted criminals could be hanged. After a five year moratorium, the Constitutional Court, under the Interim Constitution , would decide constitutionality on capital punishment.

The drafters of the Constitution neither sanctioned nor excluded the death penalty. The case of S v Makwanyane held firm that the death penalty contravenes the Constitution, violating the right to life, dignity and freedom and security of a person which includes the right not to be treated or punished in a cruel, inhuman or degrading way.

Chaskalson, P held that the death penalty does not only infringe on the dignity of the accused but also on the dignity of all those involved in the process. The application of the death penalty was held to be arbitrary and unequal. Inevitable discrimination would result in the poorest, who would not be able to afford the best defence, being the worst affected. “Only if there is a willingness to protect the worst and the weakest amongst us, that all of us can secure that our own rights will be protected.”

While the majority of the population were in favour of capital punishment, the Court held that “public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution …” The question to be answered was “not what the majority of South Africans believe … [but] whether the Constitution allows the sentence.”

The rights to life, dignity, freedom and security are subject to the general limitations provision allowing limitation only to the extent reasonable and justifiable in an open democratic society based on freedom and equality. Rights to life and dignity are the most important of all human rights as they form the basis for other rights. Justifications that the death penalty acts as a deterrent, preventative or restitutive measure cannot be accorded same weight. It has not been conclusively proven that the death penalty is a more effective deterrent than alternative punishments.

Makwanyane made clear that the death penalty will not solve violent crimes, it would only institutionalise murder, the destruction of life and annihilation of dignity. Further, for South Africa to reinstate capital punishment would be against the international trend of abolition.

Calling for brutality to end brutality does not address the root cause of the violence. Energies must be directed towards combatting violent crime against women, children and indeed any person in South Africa. We need to transform South Africa into a country in which women, children and men are respected and protected simply because they are human beings, with the law and authorities being resourced and empowered to deal with both perpetrators and victims.

It is hoped that the proactive measures announced by President Ramaphosa on 18 September will help tackle Gender Based Violence. These, coupled with institutional willingness and education at all levels of society, will help to ensure that the constitutional rights and values of life, dignity and freedom are a lived reality.

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The role sanction has, never, been to address the root causes of crime.

The role of sanction is to establish justice, with the desired and, realized effect of a safer society, based upon two things, the holding of criminals and the deterrent effect in stopping some future crimes.

Dignity is something we possess. It is not something conferred upon us by others nor something which can be removed from us by sanction.

Those who have chosen to rape and murder women have abandoned their own dignity, of their own free will, and have decided to destroy the lives of the innocent.

The death penalty cannot take away the dignity of the rapist/murderer, first because he has chosen to abandon it and secondly because an outside force cannot take it away. Can a rapist murderer regain their dignity, Of course, but still, the death penalty cannot take it away anymore than it can with anyone else involved in a death penalty protocol.

Life is no more of an absolute human right than is freedom. Both execution and incarceration can be justified by proportional sanctions, based within justice.

Is there anything more dignified than the pursuit if justice?

Wardens of the state, be they police or military can, justifiably, kill, which does not take away the dignity of the police or soldier or those they killed, as they each posses it, or not, within themselves, just as with the state that may execute within justice.

The question of the death penalty is one of the current questions of debate in Sri Lanka. Your blog raises some important questions. What are the root causes of violence? Are they country specific or worldwide? And how are energies to be directed against crime towards women and children? Crimes against women and children (especially chhildren) are not numerous in Sri Lanka. Another question to which I have not found an answer is this: Has the finding that the death penalty is not an effective deterrent been tested only in developed countries? That is my impression, but I may be wrong. Has it been proved by statistics in South Africa? The general feeling among the population here (over 90% according to one survey) is that it would be an effective deterrent here. Anyway, best wishes for your research at Oxford. Sinha Bsnayake

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'Oh thank you, God': Texas lawmakers halting Melissa Lucio's execution was the right call

While i believe texas should still keep the death penalty in place, it should be exercised with extreme caution..

Imagine spending 16 years on death row for a crime a judge now says you may not have committed . But, just two days before your execution date , you are told you're not going to be subject to the Texas death penalty.

At least not yet.

This happened to Melissa Lucio , mother of 14. If her capital punishment is carried out, Lucio will be the first Latina executed in Texas in the modern era of the death penalty.

Her story has all the makings of a terrifying television crime drama except that it's real, and it's not over yet.

There's a coerced confession, faulty forensics, suppressed evidence and a capital murder conviction followed by a set execution date. As time started to run out, friends, family and eventually lawmakers intervened, appealing to the state to grant Lucio clemency.

Last month, two years after her execution was stayed, Judge Arturo Nelson, who presided over Lucio’s original trial, recommended that the Court of Criminal Appeals overturn Lucio’s conviction and death sentence . She awaits a final ruling from the only panel that can overturn a criminal conviction in Texas.

Incredibly, Lucio's execution was stayed due in part to the lobbying efforts of Texas Rep. Jeff Leach , a pro-death penalty Republican. He joined bipartisan state lawmakers to save Lucio just before she was scheduled to be put to death. Her ordeal reveals flaws and prejudice in the criminal justice system and reignites debate over the death penalty in Texas.

I tend to be pro-death penalty as a strong deterrent for violent crime, but this is exactly the kind of case that people who are against the death penalty use to argue it can be flawed.

'I guess I did it.' A confession that should not have been.

Lucio's nightmare began just after Valentine's Day in 2007. On Feb. 15, Lucio's youngest child, 2-year-old Mariah, fell down a steep set of stairs outside their apartment in Harlingen, South Texas. Though Mariah had quite a tumble, Lucio did not seek medical help right away, a decision that would later prove to haunt the 16-year ordeal.

Two days later, Mariah did not wake up from a nap . She was rushed to the hospital but could not be revived.

The district attorney would later describe in a detailed statement that Mariah's body showed several signs of being "severely beaten," such as bruising, bite marks, a broken arm, a bruised spinal cord, and portions of her scalp missing hair.

Police investigators began to suspect Mariah died of child abuse, and Lucio was taken in for questioning just two hours after Mariah died .

I represent women wrongfully convicted: The Texas courts have spared Melissa Lucio’s life. Now she can prove her innocence.

Though she denied, more than 100 times , beating her daughter to death, after five hours, Lucio − pregnant with twins, tired and grieving − finally confessed: "I guess I did it."

Rather than interpret Lucio's statement as an exasperated admission of guilt that her failure to seek medical attention after Mariah's fall led to her death, prosecutors characterized her words as a murder confession.  

The fact that Lucio had a history of drug abuse and investigations by child welfare agencies only exacerbated her fate and how investigators saw the overwhelmed, tired mom.

The trial where evidence was excluded

During the trial, prosecutors focused on Lucio's confession and Mariah's bruised body. Though several of Lucio's children who were interviewed said their mother wasn't abusive and at least one child had witnessed Mariah falling down the stairs, corroborating Lucio's claim, prosecutors withheld this from the defense at the time.

A pathologist, Dr. Norma Jean Farley, testified that the child’s autopsy indicated that she did not die from falling down stairs and that her injuries were consistent with a death from blunt force trauma.

At trial, the defense tried to present testimony of an expert psychologist about how conditions of the interrogation could lead to a false confession , but the court excluded that testimony.

A documentary of Lucio's case relays that Mariah's autopsy showed signs of disseminated intravascular coagulation , a blood disorder that can cause extreme bruising.

In 2008, Lucio was convicted of murder and sentenced to death by the Cameron County court.

The circumstances surrounding Mariah's death, including Lucio's history and choice, made this mother all the more susceptible to scrutiny and assumptions of abuse. Lucio, a sexual abuse survivor , spent years living with her children in poverty, occasionally homeless and abusing drugs. Child Protective Services were in and out of Lucio's life and had removed the children at least once for neglect.

'Are you serious?' News of hope turns Lucio's case around.

Lucio's attorneys from the Innocence Project appealed her conviction multiple times to no avail. After the Texas Court of Appeals rejected Lucio's initial appeal, she appealed to a higher court. In 2019, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit agreed that Lucio had been deprived of her constitutional right to defend herself adequately.

This decision was short-lived. In 2021, the same court, now a larger panel of judges , tossed that decision out, reinstating her conviction. The Supreme Court denied her petition for review.

Lucio's execution date was set for April 27, 2022 .

That March 22, her attorneys filed her clemency application, which included a bevy of reports from experts disproving the prosecution's case . Four jurors and Lucio's children asked the Texas Board of Pardons and Paroles to grant clemency.

As the clock ticked, Lucio's case caught the attention of legislators and even celebrities. In a letter dated March 25, 2022, Leach, the Texas Republican, and other Republican and Democratic lawmakers appealed, requesting Lucio's execution date be stayed due to overwhelming evidence of her innocence.

Bipartisan lawmakers also pressed Cameron County District Attorney Luis Saenz during a legislative hearing to  intervene on Lucio’s behalf .

Two days before she was to be executed, the Texas Court of Criminal Appeals halted Lucio's execution . In a three-page order, it granted Lucio a review of four issues: whether the state used false evidence to convict Lucio, whether the state withheld favorable evidence to Lucio's defense, whether new scientific evidence the jury didn't hear could have resulted in her acquittal and thus whether Lucio is actually innocent.

Rep. Leach called Lucio, still behind bars, to break the news that her execution had been stayed. “ Are you serious? ” she said. “That is wonderful. … Oh thank you, God.”

So partisan lawmakers can work together. Even in Texas.

Republicans in Texas are known for their strong center-right beliefs. Partisan politics is as common − and stifling − as the July heat. Leach and other lawmakers should be acknowledged for working hard to bring Lucio's case to light. This outcome is an example of just how lawmakers' continued pressure on a specific cause can truly make change.

“I have long maintained that the system failed Melissa Lucio – and her daughter, Mariah – at every turn and that she should be given a new chance for justice … and a new chance for life,” Leach said in a post on X last month .

Lucio's attorneys and DA Saenz released a rare joint statement saying that in 2023, the parties submitted a joint filing acknowledging that "Melissa's legal team did not have access to information favorable to her defense at the time of trial."

It's uncommon for both sides of a criminal case to agree about injustice.

Hate Texas? Get over it. Why so many people are moving to the Lone Star State.

Lucio is not free yet. She’s being held at a prison in Gatesville, but this is a step in the right direction.

For certain crimes, the death penalty seems fitting. In cases where there is any evidentiary doubt, it is not.

Lucio's story remains a tragic demonstration of just how careful lawmakers and the criminal justice system must be about convictions, to say nothing about the death penalty.

Without organizations like the Innocence Project and the dogged lobbying of Leach and other lawmakers, Lucio's story could have been even more tragic. It's hard to think of a more unjust scenario than serving time for a crime you didn't do, but to be executed for it on top of that seems unbearable to even consider.

This is also a cautionary tale of a whirlwind of factors that created a perfect storm of events that led to a near execution: racism, homelessness, abuse, poverty, police bias and more. Lucio appears to have been failed by so many people, in so many places.

For many, just the chance of executing one innocent person may be enough to advocate for ending the death penalty. While I believe Texas should still keep the death penalty in place, it should be exercised with extreme caution. This case is precisely why.

Nicole Russell is an opinion columnist with USA TODAY.   She lives in Texas with her four kids.

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Should the Death penalty be reinstated in south africa

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Ferdie Lochner

Measured against northern hemisphere jurisdictions, South African constitutional law is still in its infancy, yet it is dynamic and offers plenty of research questions. One example thereof is the history and the future of the death penalty with particular reference to South Africa, a topic crossing paths with me as part of my LLB studies. Given the apparent popularity of my initial submission of a research proposal in this regard, I have had to revise it with the latest crime statistics and to enter more research questions.

Brendan Beech

charity mae dacut

Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life. For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced results showing that for every inmate who was executed, 7 lives were spared because others were deterred from committing murder. Similar results have been produced by disciples of Ehrlich in follow-up studies. Moreover, even if some studies regarding deterrence are inconclusive, that is only because the death penalty is rarely used and takes years before an execution is actually carried out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty. Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the question of deterrence closely, wrote: "Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks." Finally, the death penalty certainly "deters" the murderer who is executed. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in prison is prevented from robbing on the streets. Vicious murderers must be killed to prevent them from murdering again, either in

laura walls

Nepal Law Review

Bishal Khanal

Abstract The death penalty has been a critical issue in the recent years. After centuries of acceptance, now campaign against death penalty has been widespread across all the continents and many countries. A number of countries abolished death penalty considering it uncivilized, immoral, cruel, unusual, brutal and barbaric. Despite legal provisions some countries follow policy of suspending executions. Other few reinstated death penalty and abolished later. Debates in reinstatement of death penalty held and amendment Bill was proposed long before in the British Parliament. Years before the Philippines reinstated death penalty and executed many drugs related offenders in a short span of time. The highest judiciaries of larger democracies such as US and India still see the significance of death penalty. Indians intend to sharply limit and award death penalty only in ‘rarest of the rarest cases’. With the wider acceptance of democratic regime the scale of politically motivated death penalty are rapidly declining. The US system requires “careful and judicious consideration”and therefore long term suspension is practiced before execution. But in order to consider emerging incidents of crime such as terrorism, severe form of organized crimes, commission of crime via artificial intelligence and so on many countries appear unwilling to complete abolition of death penalty. But the coalitions of national, regional and international organizations including the United Nations have been taking firm steps against death penalty. Though, current scenario indicates that there is still long way for arriving to death penalty free world.

Bruce Ledewitz

Joanna Shepherd

Charadine Pich

Meray Maddah

" No crime goes unpunished " ; we are probably familiar with this quote where anyone who is guilty of any committed crime they should be prosecuted for it before the law and be held responsible for the actions that generated such crime. What people are also familiar with is the Universal Deceleration of Human Rights and the number of articles that it calls for, but distinctively the right to liberty, freedom and personal security. This right something that states and their sovereigns, at least most of them, aspire to accomplish in respect to their nationals' own security, well-being and livelihood; because after all what good is a state if it is not able to make its citizens enjoy the type of life that every human being is entitled on the expense of a certain political agenda from the state's part. In this sense, the state in such scenario will be the responsible party for not only distributing these rights but also following up with the citizens' utilization of these rights and making that each one does have the bare minimum of each right; meaning the entire right itself and not to settle with anything less. That said, what if the state in this case was the party that not only did it not allow the enjoyment of the before mentioned right; but also was the reason why that person is no longer alive? Capital punishment or the application of the different methods of death penalty are still part of many states' judiciary systems and are still until the present day categorically practiced based upon the crime committed by the defendant. No matter how heinous a crime maybe or the fact that numerous of these crimes claim other people's lives, but in the process what good and what type of benefit can we justify ourselves with when we are producing the same end result, that is death, through different procedures that fall under the label of " law application " ? Most importantly, how can we distinguish ourselves from these same criminals and why is acceptable to kill in the name of a perceived justice if such death penalty is agreed upon by a judiciary commission, than to reject

Mary Blakelock

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GOP county attorney is right to clap back at Arizona's power-hungry Democrats

Opinion: republicans may have censured rachel mitchell, but the maricopa county attorney has the guts to stand up to powerful democrats..

A snotty little footnote in a snotty little memo by the Arizona attorney general was all that Maricopa County Attorney Rachel Mitchell needed to clap back hard.

Mitchell is the Republican prosecutor scorned by her party base because she is not the ideologue some want her to be.

And good thing, because it makes her more credible when she takes on real ideologues from the opposition party. 

Mayes and Hobbs are dictating abortion law 

Such as Kris Mayes, the Democratic attorney general who won a statewide election by the skin of her teeth and now believes she has the mandate to act as a Legislature of one.

Make that a Legislature of two when Mayes and Democratic Gov. Katie Hobbs decide they will circumvent Arizona’s legislative branch and decide on their own what the law will be on highly charged issues such as abortion and the death penalty. 

Mitchell has called out the two Democrats for stripping 15 county attorneys of their authority to prosecute state abortion law. And she has criticized their tactics to delay the use of the death penalty in Arizona.

Both Mayes and Hobbs have decided on their own to decriminalize abortion in Arizona and to promote an extreme left-wing conception of abortion law — free of all restrictions. 

That may sound popular in the continuing backlash against the conservative Trump court that overturned Roe v. Wade and sent abortion back to the states to decide.

But the vast majority of Arizonans actually want some regulation on abortion — not the free-for-all that Democrats propose and then fuzz up. 

That's not what most Arizona voters want

In a CBS News/YouGov poll conducted May 10-16, 31% of Arizonans surveyed said they agree that abortion should be completely legal. However, 69% say they want — at the very least — some restrictions on abortion.

The same poll says a strong majority (65%) of Arizonans would support a generic ballot initiative that would establish a constitutional right to an abortion. However, it does not say that initiative would remove all restrictions to abortion.

As for the death penalty, Mitchell has accused the two Democrats of using delay tactics to halt executions in Arizona.

Soon after her election to governor, Katie Hobbs announced there would be an independent review of the death penalty . Mayes withdrew a motion for the only pending death warrant, as reported by The Arizona Republic’s Stacey Barchenger and Jimmy Jenkins. 

That review, conducted by retired Magistrate Judge David Duncan, was supposed to be completed roughly six months ago, and yet here we are, with Democrats awaiting its results before resuming the death penalty, Mitchell argued. 

Mitchell claps back on Mayes' footnote

In her May 16 letter to Mitchell, Mayes argued that, in fact, her deputies continue to defend more than 100 death sentences in court and that her office had recently asked the U.S. Supreme Court to reinstate a death sentence in another case.

Mayes further wrote that her office would take up pursuing warrants to carry out death sentences in the first quarter of 2025, when she anticipates the independent review will have been completed and proposed any changes to improve Arizona’s death penalty.

In a May 17 memo, Mitchell responded, “Your promise that you will start to do your job in 2025 is hollow given that former Judge Duncan’s review was supposed to be finished in December 2023.”

But what had really set off Mitchell was Mayes’ final paragraph and its footnote:

Mayes takes heat: On handling of fake elector case

“If you have any questions or would like to discuss these issues further, please let me know, and I will do my utmost to meet with you promptly. I would also be happy to discuss with you other issues of great importance to Arizonans, including women’s access to reproductive health care and the importance of equal treatment under the law, regardless of a defendant wealth, prominence, or political connections.” 

A footnote at the end of the paragraph pointed to an Arizona Republic story in which a Tempe detective accused the Maricopa County Attorney’s Office of lenient treatment of former Department of Corrections Director Charles Ryan, after his 2022 standoff with Tempe police.

Mitchell roared back, noting Mayes has "never worked as a prosecutor,” nor does she have jurisdiction over the Ryan case. 

“The last paragraph of your letter implies (if not directly accuses) the experienced, dedicated prosecutors and public servants of this office of misfeasance or utterly inappropriate and unethical behavior without a shred of evidence to suggest the same — because there is none.”

Republicans need a counterpoint to Mayes

Kris Mayes is a smash-mouth partisan who requires a tough check on her aggressive style. 

Mitchell couldn’t have known it at the time she ran for Maricopa County attorney, but she would perform an important role in that capacity.

If Kris Mayes is going to run roughshod over law and Legislature, she isn’t going to do it without a debate and without an adversary. 

Rachel Mitchell is a constant reminder to Mayes that we have the separation of powers so that cock-sure, self-righteous politicians don’t abuse theirs.

Republican voters would be wise to grasp that big picture and soon.

Phil Boas is an editorial columnist with The Arizona Republic. Email him at [email protected] . 

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Exclusion of Jewish Jurors Prompts Review of California Death Row Cases

Dozens of cases are under review after notes from jury selection in a 1990s murder case indicated that prosecutors worked to exclude Jews.

By Tim Arango

A jury was being chosen for a murder trial nearly three decades ago in California. The state was seeking a death sentence for Ernest Dykes, who had been charged with killing a 9-year-old boy during a robbery in Oakland.

Weighing who should be struck from the jury pool and who should be kept, a prosecutor made notes about a prospective juror:

“I liked him better than any other Jew but no way.”

Other notes about prospective jurors bore evidence of similar prejudice:

“Banker. Jew?” read one.

“Jew? Yes,” read another.

The notes — just handwritten scribbles — were discovered recently in an internal case file from the 1990s when Mr. Dykes was convicted of murder and sent to death row. A federal judge who is overseeing settlement talks as part of an appeal by Mr. Dykes told the Alameda County District Attorney’s office to conduct a top-to-bottom search for any additional documents, and that search turned up the notes, which are now in the hands of the judge.

The notes offered a startling glimpse into a practice that some defense lawyers long suspected was going on, and that a former prosecutor had alleged was common in Alameda County — prosecutors seeking to exclude people of certain faiths, races or genders.

Now, Mr. Dykes, 51, and perhaps others on death row in California as well, may have their convictions tossed out and be granted new trials. The federal judge weighing his appeal has ordered a review of all California capital cases in which a defendant from Alameda County is still on death row. The county includes Oakland, Berkeley and a host of other Bay Area communities.

The inquiry, which may involve as many as 35 cases from as far back as 1977, is just getting underway. But the district attorney’s office says it has already found evidence that the discriminatory practice was widespread for decades and involved numerous prosecutors.

“When you intentionally exclude people based on their race, their religion, their gender or any protected category, it violates the Constitution,” said Pamela Price, the Alameda district attorney and a former civil rights lawyer.

Legal scholars and critics of the death penalty say some prosecutors have long sought to exclude certain groups from serving as jurors in capital cases, even after the courts made clear that the practice was unconstitutional. Given the long history of racial injustice in the United States, Black jurors were presumed to be sympathetic to defendants, especially to Black defendants. And in the decades after the Holocaust, Jews were presumed to be against capital punishment.

A team of prosecutors worked on the Dykes case, and the district attorney’s office said it has not been able to determine exactly who wrote the notes about prospective Jewish jurors.

The lead prosecutor in the case, Colton Carmine, is retired. Reached in Reno, Nev., where he now lives, Mr. Carmine declined to discuss the revelations about jury selection in the Dykes trial.

Ms. Price’s office has been contacting surviving relatives of the victims in the murder cases that are under review, to prepare them for the possibility of new trials and the prospect of reliving the trauma of having lost a loved one so violently.

Retrying the cases would present prosecutors with numerous challenges, like tracking down old case files and witnesses whose memories may have faded, or who have died.

Ms. Price, a former civil rights lawyer who is facing a recall election organized by critics who favor more punitive measures, said her office has reached about half the victims’ families so far. “Obviously people are not happy to hear from us after 20, sometimes 30 years, that the case is not over,” she said.

Lance Clark, the 9-year-old boy Mr. Dykes was convicted of killing, wanted to be an architect, and was “so smart, so bright,” said an uncle, Steve Robello. “He made his own toys. He made his own robots.” Just this week, he said, he visited his nephew’s grave and left flowers.

Kirstie Trias, Lance’s sister, said it was devastating to learn that Mr. Dykes may get a new trial. The notion that he was somehow a victim is “heart wrenching,” she said.

Allegations of religious and racial bias in Alameda County jury selection have surfaced before. In 2005, John R. Quatman, a former prosecutor in the district attorney’s office, gave a sworn declaration that “it was standard practice to exclude Jewish jurors in death cases.”

Mr. Quatman said at the time that a trial judge in a death penalty case had advised him to make sure that no Jewish jurors were selected.

“He said I could not have a Jew on the jury, and asked me if I was aware that when Adolf Eichmann was apprehended after World War II, there was a major controversy in Israel over whether he should be executed,” he said. Mr. Quatman added that the judge said, “no Jew would vote to send a defendant to the gas chamber.”

There is limited polling on Jewish views of the death penalty, but a 2014 poll by the Public Religion Research Institute found that among Jews support for capital punishment was notably lower than among white Protestants and white Catholics, while higher than among Hispanics and among Black Protestants.

Rabbi Jacqueline Mates-Muchin, the senior rabbi at Temple Sinai in Oakland, which is about to celebrate its 150th anniversary, said that learning of the alleged past pattern of bias among local prosecutors struck especially hard, given the rise of antisemitism today.

“It’s pretty awful,” she said. “The word disappointing isn’t enough.”

Alameda County, with a population of about 1.6 million, is home to about 50,000 Jews, according to a 2020 estimate by the American Jewish Population Project at Brandeis University .

Rabbi Mates-Muchin said the revelations are troubling on many fronts. “I feel horribly for the families of the victims. I also think that it isn’t fair to these defendants, who did not have a decent representation of the community that they’re from judging their case.”

Proving bias in selecting jurors, though, is notably difficult. Using what are known as peremptory challenges, lawyers can strike a certain number of prospective jurors without necessarily having to provide a reason. Even when a reason is required, lawyers can often draw on answers to jury questionnaires for indications of bias that can be used to justify excluding someone.

“For as long as there have been jury trials in death penalty cases, there has been racial discrimination and religious discrimination in the selection of juries,” said Robert Dunham, director of the Death Penalty Policy Project, an independent research organization within the Philadelphia law firm Phillips Black. “And we see it most frequently in the context of prosecutors striking African-American jurors.”

Brian Pomerantz, a lawyer who specializes in appeals of capital cases and represents Mr. Dykes alongside another attorney, Ann-Kathryn Tria, said that exposing jury bias in death penalty prosecutions in Alameda has been “my life’s quest.”

“I’ve been chasing this for a decade,” said Mr. Pomerantz, who also represents two other death row inmates in Alameda cases whose trials he believes were tainted by the exclusion of Black and Jewish jurors.

California has the largest death row in the nation — there are currently 640 condemned inmates — but the state has not executed anyone since 2006. Gov. Gavin Newsom, a Democrat, is opposed to capital punishment and has imposed a moratorium on executions. He has also shut down the death chamber at San Quentin prison and transferred death-row inmates to other prisons around the state.

It is not difficult to look in any corner of the country and find cases overturned because of jury bias, and prosecutors’ offices where striking jurors based on race or religion was common.

“Historically we’ve seen practices by prosecutors — and we know this to be true, because we’ve seen videotapes of their lectures to their colleagues,” said Robin M. Maher, the executive director of the Death Penalty Information Center. “We’ve seen training manuals where it says, make sure to exclude everyone — women, Jews, people of color — anyone who is part of a group that they think could sympathize with someone who was on trial for his life.”

In Philadelphia, a training video that showed prosecutors how to exclude Black jurors was unearthed, leading to overturned convictions. In Mississippi, a Black man, Curtis Flowers , was tried six times in the same murder case, and ultimately the Supreme Court overturned his death sentence after ruling the prosecutors violated the Constitution in selecting the jury. More recently, a court in North Carolina held a hearing last month about allegations of racial bias in selecting a jury in the case of Hasson Bacote , a Black man sentenced to death in 2009.

Mr. Pomerantz said the emergence of such bias in Alameda County, in the heart of the liberal Bay Area, shows how ubiquitous the practice has been in the United States.

“You’re talking about where Berkeley is,” he said. “This isn’t Alabama. This isn’t Texas.”

Kirsten Noyes and Alain Delaquérière contributed research.

Tim Arango is a correspondent covering national news. He is based in Los Angeles. More about Tim Arango