Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment

By Barry Latzer

Death Penalty Cases presents significant verbatim excerpts of death-penalty decisions from the United States Supreme Court. The first chapter introduces the topics discussed throughout the book. It also includes a detailed history of the death penalty in the United States. After this introduction, the remaining eighteen chapters are divided into five parts: Foundational Cases, Death-Eligible Crimes and Persons, The Death Penalty Trial, Post-Conviction Review, and Execution Issues.

The first part, consisting of five chapters, talks about the mandatory death penalty, mitigating evidence and racial bias. The next part covers death-eligible crimes, such as rape and other crimes that do not involve homicide and murder. The middle part presents the trial process, from choosing the appropriate decision-makers through the sentencing decision. Followed by this is a chapter focusing on the aftermath of conviction, such as claims of innocence. The book concludes by exploring issues related to execution, such as not executing insane convicts. Finally, execution methods are presented.

• Provides the most recent case material--no need to supplement
• Topical organization of cases provides a more logical organization for structuring a course
• Co-authors with different perspectives on the death penalty assures complete impartiality of the material
• Provides the necessary historical background, a clear explanation of the current capital case process, and an impartial description of the controversies surrounding the death penalty
• Provides the latest statistics relevant to discussions on the death penalty
• Clearly explains the different ways in which the states process death penalty cases, with excerpts of the most relevant statutes

• Language: English
• Publisher: Elsevier Science
• Release date: Oct 27, 2010
• ISBN: 9780123820259

Barry Latzer

BARRY LATZER is Professor of Government at John Jay College of Criminal Justice and a member of the Ph.D. and M.A. faculties in Criminal Justice at the Graduate School and University Center. He received a law degree (J.D.) from Fordham University (1985) and a Ph.D. in Political Science from the University of Massachusetts, Amherst (1977). Professor Latzer is also known for his work on state constitutional law, which is the subject of two of his books, State Constitutional Criminal Law (Clark, Boardman, Callaghan, 1995), and State Constitutions and Criminal Justice (Greenwood, 1991). He has published over two dozen scholarly articles and writes a continuing series of articles for the Criminal Law Bulletin, entitled "State Constitutional Developments."

Book preview

Death Penalty Cases

Leading U.S. Supreme Court Cases on Capital Punishment

Third Edition

Barry Latzer

David McCord

Table of Contents

Cover image

Title page

Copyright

Dedication

Preface

Acknowledgments

Table of Cases

Chapter 1. Capital Punishment in America

History

The cruel and unusual punishments clause

Arguments for and against capital punishment

Stages of a capital case

Readings

Part I: Foundational Cases

Chapter 2. Cruel and Unusual as Applied—Furman v. Georgia (1972)

Per curiam opinion

Concurring opinion of justice douglas

Concurring opinion of justice brennan

Concurring opinion of justice stewart

Concurring opinion of justice white

Concurring opinion of justice marshall

Dissenting opinion of chief justice burger, joined by justices powell, blackmun, and rehnquist

Dissenting opinion of justice powell, joined by chief justice burger and justices blackmun and rehnquist

Chapter 3. Not Inherently Unconstitutional—Gregg v. Georgia (1976)

Opinion of justice stewart, joined by justices powell and stevens

Concurring opinion of justice white, joined by chief justice burger and justice rehnquist

Dissenting opinion of justice brennan

Dissenting opinion of justice marshall

Chapter 4. Mandatory Death Penalty—Woodson v. North Carolina (1976)

Opinion of justice stewart, joined by justices powell and stevens

Dissenting opinion of justice white, joined by chief justice burger and justice rehnquist

Dissenting opinion of justice rehnquist

Chapter 5. Mitigating Evidence—Lockett v. Ohio (1978) and Jurek v. Texas (1976)

Opinion of chief justice burger, joined by justices stewart, powell, and stevens

Dissenting opinion of justice white

Dissenting opinion of justice rehnquist

Opinion of justice stevens, joined by justices stewart and powell

Concurring opinion of justice white, joined by chief justice burger and justice rehnquist

Chapter 6. Racial Bias—McCleskey v. Kemp (1987)

Opinion of justice powell for the court

Dissenting opinion of justice brennan, joined by justices marshall, blackmun, and stevens

Part II: Death-Eligible Crimes and Persons

Chapter 7. Rape and Other Nonhomicide Crimes—Coker v. Georgia (1977)

Opinion of justice white, joined by justices stewart, blackmun, and stevens

Opinion of justice powell, concurring in the judgment in part and dissenting in part

Dissenting opinion of chief justice burger, joined by justice rehnquist

Chapter 8. Murder—Godfrey v. Georgia (1980)

Opinion of justice stewart, joined by justices blackmun, powell, and stevens

Dissenting opinion of justice white, joined by justice rehnquist

Chapter 9. Felony-Murder—Enmund v. Florida (1982) and Tison v. Arizona (1987)

Opinion of justice white for the court

Dissenting opinion of justice o’connor, joined by chief justice burger and justices powell and rehnquist

Opinion of justice o’connor for the court

Dissenting opinion of justice brennan, joined by justices marshall, blackmun, and stevens

Chapter 10. The Mentally Retarded and Juveniles—Atkins v. Virginia (2002) and Roper v. Simmons (2005)

Opinion of justice stevens for the court

Dissenting opinion of chief justice rehnquist, joined by justices scalia and thomas

Dissenting opinion of justice scalia, joined by chief justice rehnquist and justice thomas

Opinion of justice kennedy for the court

Concurring opinion of justice stevens, joined by justice ginsburg

Dissenting opinion of justice o’connor

Dissenting opinion of justice scalia, joined by chief justice rehnquist and justice thomas

Chapter 11. Child Rape—Kennedy v. Louisiana (2008)

Opinion of justice kennedy for the court

Dissenting opinion of justice alito, joined by chief justice roberts and justices scalia and thomas

Part III: The Death Penalty Trial

Chapter 12. Appropriate Decision Makers—Spaziano v. Florida (1984) and Ring v. Arizona (2002)

Opinion of justice blackmun for the court

Opinion of justice stevens, concurring in part and dissenting in part, joined by justices brennan and marshall

Opinion of justice ginsburg for the court

Concurring opinion of justice scalia, joined by justice thomas

Concurring opinion of justice kennedy

Opinion of justice breyer concurring in the judgment

Dissenting opinion of justice o’connor, joined by chief justice rehnquist

Chapter 13. Selecting Jurors—Witherspoon v. Illinois (1968), Turner v. Murray (1986), and Uttecht v. Brown (2007)

Opinion of justice stewart for the court

Dissenting opinion of justice black, joined by justices harlan and white

Opinion of justice white for the court

Dissenting opinion of justice powell, joined by justice rehnquist

Opinion of justice kennedy for the court

Dissenting opinion of justice stevens, joined by justices souter, ginsburg, and breyer

Dissenting opinion of justice breyer, joined by justice souter

Chapter 14. Victim Impact Evidence—Payne v. Tennessee (1991)

Opinion of chief justice rehnquist for the court

Concurring opinion of justice souter, joined by justice kennedy

Dissenting opinion of justice marshall, joined by justice blackmun

Dissenting opinion of justice stevens, joined by justice blackmun

Chapter 15. The Sentencing Decision—McKoy v. North Carolina (1990) and Kansas v. Marsh (2006)

Opinion of justice marshall for the court

Dissenting opinion of justice scalia, joined by chief justice rehnquist and justice o’connor

Opinion of justice thomas for the court

Dissenting opinion of justice stevens

Dissenting opinion of justice souter, joined by justices stevens, ginsburg, and breyer

Part IV: Post-Conviction Review

Chapter 16. Ineffective Counsel—Strickland v. Washington (1984) and Williams v. Taylor (2000)

Opinion of justice o’connor for the court

Opinion of justice brennan, concurring in part and dissenting in part

Dissenting opinion of justice marshall

Opinion of justice stevens for the court

Dissenting opinion of chief justice rehnquist, joined by justices scalia and thomas

Chapter 17. Claims of Innocence—Herrera v. Collins (1993) and Kansas v. Marsh (2006)

Opinion of chief justice rehnquist for the court

Concurring opinion of justice o’connor, joined by justice kennedy

Concurring opinion of justice scalia, joined by justice thomas

Concurring opinion of justice white

Dissenting opinion of justice blackmun, joined in parts I–IV by justice stevens and souter

Concurring opinion of justice scalia

Part V: Execution Issues

Chapter 18. Insane Convicts May Not Be Executed—Ford v. Wainwright (1986) and Panetti v. Quarterman (2007)

Opinion of justice marshall for the court

Concurring opinion of justice powell

Opinion of justice o’connor, joined by justice white, concurring in the result in part and dissenting in part

Dissenting opinion of justice rehnquist, joined by chief justice burger

Opinion of justice kennedy for the court

Dissenting opinion of justice thomas, joined by chief justice roberts and justices scalia and alito

Chapter 19. Method of Execution—Baze v. Rees (2008)

Opinion of chief justice roberts, joined by justices kennedy and alito

Concurring opinion of justice alito

Opinion of justice stevens concurring in the judgment

Opinion of justice scalia concurring in the judgment, joined by justice thomas

Opinion of justice thomas concurring in the judgment, joined by justice scalia

Opinion of justice breyer concurring in the judgment

Dissenting opinion of justice ginsburg, joined by justice souter

Appendix A. Facts and Figures on Murder and the Death Penalty

A.1 Homicides

A.2 Murder arrests, convictions, and sentences

A.3 Death sentences and executions

Appendix B. Understanding Statutory Provisions

I Aggravating circumstances

II Mitigating circumstances

III Rules for sentencing decisions

Copyright

Acquiring Editor: Pamela Chester

Development Editor: Gregory Chalson

Project Manager: Marilyn Rash

Designer: Alisa Andreola

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Library of Congress Cataloging-in-Publication Data

Latzer, Barry, 1945-

Death penalty cases : leading U.S. Supreme Court cases on capital punishment / Barry Latzer, David McCord. — [3rd ed.]

p. cm.

ISBN 978-0-12-382024-2

1. Capital punishment—United States—Cases. I. United States Supreme Court. II. Title.

KF9227.C2L38 2011

345.73′0773—dc22

2010033966

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.

For information on all Butterworth-Heinemann publications visit our website at www.elsevierdirect.com/security

Printed in the United States of America

10 11 12 13 14  10 9 8 7 6 5 4 3 2 1

Dedication

For Miriam Latzer – no longer a kid, but still my best

To my parents Wallace and June McCord, my wife Laura, and my children Jess, Kyle, and Claire

Preface

This third edition of Death Penalty Cases is a substantial revision that nonetheless retains the qualities and essential format of previous versions. It continues to present substantial verbatim excerpts from the most important United States Supreme Court decisions on the death penalty.

Five new part headings have been created to bring more organizational structure to the cases: Part I, Foundational Cases; Part II, Death-Eligible Crimes and Persons; Part III, The Death Penalty Trial; Part IV, Post-Conviction Review; and Part V, Execution Issues. We have also added to Chapter 1, Introduction, a list of readings keyed to the chapters of Death Penalty Cases. These books and articles present, wherever possible, contrasting viewpoints on each topic. In addition, Appendices A and B present supporting material that may serve as a reference tool for students or for anyone interested in the subject. We continue to present this material as impartially as possible, adopting a completely neutral stance on the merits of capital punishment as public policy.

We have added nine cases, most of which were decided after the publication of the second edition:

■ Roper v. Simmons (2005), prohibiting the execution of juveniles

■ Kennedy v. Louisiana (2008), barring the death penalty for raping a child

■ Ring v. Arizona (2002), requiring that a jury, not a judge, determine the facts that make a defendant eligible for a death sentence

■ Uttecht v. Brown (2007), concerning the selection of impartial jurors in a death penalty trial

■ Kansas v. Marsh (2006), involving the appropriate considerations for a jury that must determine whether or not to impose a death sentence

■ Strickland v. Washington (1984), establishing the legal standard for ineffective assistance of counsel

■ Williams v. Taylor (2000), clarifying the Strickland v. Washington standard for ineffective assistance of counsel

■ Panetti v. Quarterman (2007), discussing the standards for carrying out the death sentence on a prisoner who claims to be insane

■ Baze v. Rees (2008), approving the use of lethal injection as a method of execution

We also have deleted eight cases whose importance has been superseded or whose significance is best understood through later cases: Blystone v. Pennsylvania (1990), Lockhart v. McCree (1986), Turner v. Murray (1986), Simmons v. South Carolina (1994), Burger v. Kemp (1987), Pulley v. Harris (1984), Arizona v. Rumsey (1984), and Stanford v. Kentucky (1989).

Chapter 1 has been revised, particularly to include a more detailed history of the death penalty in the United States and an expanded survey of arguments for and against capital punishment. All Editors’ Notes at the beginning of Chapters 2 through 19 have been revised, and we have added thought-provoking questions at the end of many chapters.

Appendix A, Facts and Figures on Murder and the Death Penalty, has been updated with the most recent information available. Appendix B, Understanding Statutory Provisions, has been revised to provide a guided tour of the key features of death penalty statutes.

The first edition of this book was the creation of Professor Barry Latzer of John Jay College of Criminal Justice; Professor Latzer also revised the book into its second edition. Professor David McCord of Drake University Law School has joined as a co-author for this third edition, which very much reflects the Latzer/McCord partnership, a shared commitment to produce in one compact book the most useful and comprehensive source for understanding the death penalty in the United States.

Acknowledgments

Anyone who writes a book knows that the process involves a great many people, not just authors. We have been very fortunate to work with a team of real professionals at Elsevier, a team dedicated to producing the best possible casebook in the criminal justice field. Their work deserves a tribute. Our deep appreciation goes to Pam Chester, our Acquisitions Editor; Marilyn Rash, the Project Manager in Production; Greg Chalson, Senior Development Editor in charge of instructor ancillaries; and Alisa Andreola who gave us the dramatic new cover.

Barry Latzer

David McCord

Table of Cases

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) 111

Adams v. Texas, 448 U.S. 38 (1980) 265

Almendarez-Torres v. United States, 523 U.S. 224 (1998) 244n4

Apodaca v. Oregon, 406 U.S. 404 (1972) 304

Apprendi v. New Jersey, 530 U.S. 466 (2000) 242, 244, 244n4, 248, 250

Arave v. Creech, 507 U.S. 463 (1993) 146

Arizona v. Rumsey, 467 U.S. 203 (1984) x

Atkins v. Virginia, 536 U.S. 304 (2002) 111, 181–199, 201–202

Ballew v. Georgia, 435 U.S. 223 (1978) 305

Batson v. Kentucky, 476 U.S. 79 (1986) 128–129

Baze v. Rees, 553 U.S. 35 (2008) x, 387–409

Bazemore v. Friday, 478 U.S. 385 (1986) 116, 125–126

Beck v. Alabama, 447 U.S. 625 (1980) 342, 357

Blystone v. Pennsylvania, 494 U.S. 299 (1990) x, 282, 296, 313

Booth v. Maryland, 482 U.S. 496 (1987) 275, 276, 278, 284

Boyde v. California, 494 U.S. 370 (1990) 296, 310–311, 313

Branch v. Texas, 408 U.S. 238 (1972) 106, 110

Brewer v. Quarterman, 550 U.S. 286 (2007) 111

Brown v. Allen, 344 U.S. 443 (1953) 352

Burch v. Louisiana, 441 U.S. 130 (1979) 304

Burger v. Kemp, 483 U.S. 776 (1987) x, 285

Cabana v. Bullock, 474 U.S. 376 (1986) 176

California v. Brown, 479 U.S. 538 (1987) 289

Campbell v. Wood, 511 U.S. 1119 (1994) 388

Chapman v. California, 386 U.S. 18 (1967) 328

Coker v. Georgia, 433 U.S. 584 (1977) 135–143, 159, 184, 355

Coleman v. Thompson, 504 U.S. 188 (1992) 365

Duncan v. Louisiana, 391 U.S. 145 (1968) 247

Eberheart v. Georgia, 433 U.S. 917 (1977) 135

Eddings v. Oklahoma, 455 U.S. 104 (1982), 121n37, 198, 281, 302

Enmund v. Florida, 458 U.S. 782 (1982) 155, 156–165, 168, 171, 243, 289

Ex parte Garland, 4 Wall. 333 (1867) 347

Farmer v. Brennan, 511 U.S. 825 (1994) 392

Ford v. Wainwright, 477 U.S. 399 (1986) 186, 356, 360, 373–379, 380

Francis v. Resweber, 329 U.S. 459 (1947) 392

Franklin v. Lynaugh, 487 U.S. 164 (1988) 111, 309

Furman v. Georgia, 408 U.S. 238 (1972) 1n1, 6, 8, 22, 37–66, 67, 69, 72, 73, 78, 79, 91, 92, 103, 106, 109, 110, 122, 124, 136, 137, 148, 149, 218, 247, 306, 309, 313, 401, 417, 428

Gardner v. Florida, 430 U.S. 349 (1977) 126

Gideon v. Wainwright, 372 U.S. 335 (1963) 5n7

Godfrey v. Georgia, 446 U.S. 420 (1980) 145–153, 187, 196, 290, 304

Graham v. Collins, 506 U.S. 461 (1993) 111

Gregg v. Georgia, 428 U.S. 153 (1976) 18, 67–83, 86, 88, 99, 106, 107, 109, 117, 118, 124, 136–137, 145, 146, 148, 149, 160, 187, 249, 280–281, 291, 295, 301, 305, 305n5, 309, 355, 389, 417

Ham v. South Carolina, 409 U.S. 524 (1973) 254

Harmelin v. Michigan, 501 U.S. 957 (1991) 184, 196, 231, 404

Harris v. Alabama, 513 U.S. 504 (1995) 249

Helling v. McKinney, 509 U.S. 25 (1993) 392

Herrera v. Collins, 506 U.S. 390 (1993) 337–361, 367

Hitchcock v. Dugger, 481 U.S. 393 (1987) 302

Hodgson v. Minnesota, 497 U.S. 417 (1990) 212

Hooks v. Georgia, 433 U.S. 917 (1977) 135

House v. Bell, 386 F.3d 668 (2004) 365–366

House v. Bell, 547 U.S. 518 (2006) 338

In re Kemmler, 136 U.S. 436 (1890) 4, 7–8, 63, 72, 391

In re Winship, 397 U.S. 358 (1970) 342

Jackson v. Virginia, 443 U.S. 307 (1979) 343, 354

Johnson v. Mississippi, 486 U.S. 578 (1988) 356

Johnson v. Texas, 509 U.S. 350 (1993) 111, 205

Jurek v. Texas, 428 U.S. 262 (1976) 99, 102, 104–111, 296

Kansas v. Marsh, 548 U.S. 163 (2006) ix, 295, 306–315, 338, 361–371

Kennedy v. Louisiana, U.S., 128 S. Ct. 2641 (2008) ix, 135, 215–233

Kuhlmann v. Wilson, 554 U.S. 407 (2008) 345, 358

Leland v. Oregon, 343 U.S. 790 (1952) 304

Lockett v. Ohio, 438 U.S. 586 (1978) 99–104, 121n37, 171, 198, 298, 302, 345, 437

Lockhart v. McCree, 476 U.S. 162 (1986) x, 272

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) 50, 96

Malloy v. South Carolina, 237 U.S. 180, 185 (1915) 388

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 360

Maynard v. Cartwright, 486 U.S. 356 (1988) 145

McCleskey v. Kemp, 481 U.S. 279 (1987) 21, 113–133, 212, 293, 300

McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984) 113

McGautha v. California, 402 U.S. 183 (1971) 6, 37, 43, 44, 58

McKoy v. North Carolina, 494 U.S. 433 (1990) 295, 296–306, 345

McMann v. Richardson, 397 U.S. 759 (1970) 320

Medina v. California, 505 U.S. 437 (1992) 345

Mills v. Maryland, 486 U.S. 367 (1988) 281, 292, 295, 296, 297

Morgan v. Illinois, 504 U.S. 719 (1992) 254

Morissette v. United States, 342 U.S. 246, 250 (1952) 175

Murray v. Carrier, 477 U.S. 478 (1986) 358

Murray v. Giarratano, 492 U.S. 1 (1989) 345

Nelson v. Campbell, 541 U.S. 637 (2004) 405

Nobles v. Georgia, 168 U.S. 398, 405–406 (1897) 379

O’Neil v. Vermont, 144 U.S. 323 (1892) 50

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) 33

Panetti v. Quarterman, 551 U.S. 930 (2007) x, 373, 379–386

Patterson v. New York, 432 U.S. 197 (1977) 299, 342, 346

Payne v. Tennessee, 501 U.S. 808 (1991) 85, 275–293

Penry v. Johnson, 532 U.S. 782 (2001) 111

Penry v. Lynaugh, 492 U.S. 302 (1989) 182, 202, 300, 301, 302, 313

People v. Kelly, 171 P. 3d 548 (2007) 294

People v. LaValle, 3 N.Y. 3d 88 (2004) 417n7

People v. Smith, 185 Ill. 2d 532, 708 N. E. 2d 365 (1999) 367–368

. Alabama, 287 U.S. 45 (1932) 5n7

Proffitt v. Florida, 428 U.S. 242 (1976) 102, 107, 235, 244n4, 437

Pulley v. Harris, 465 U.S. 37 (1984) x, 118–119, 120

Ring v. Arizona, 536 U.S. 584 (2002) ix, 145, 235, 236, 241–251, 307

Ristaino v. Ross, 424 U.S. 589 (1976) 254, 262, 263

Roberts v. Louisiana, 428 U.S. 325 (1976) 85, 91, 103, 107, 110

Robinson v. California, 370 U.S. 660 (1962) 8, 96, 136, 184, 356n2

Rochin v. California, 342 U.S. 165, 172 (1952) 358

Roper v. Simmons, 543 U.S. 551 (2005) ix, 181, 199–214

Rosales-Lopez v. United States, 451 U.S. 182 (1981) 254, 262, 262n2

Ross v. Moffitt, 417 U.S. 600 (1974) 342

Rudolph v. Alabama, 375 U.S. 889 (1963) 6n9

Saffle v. Parks, 494 U.S. 484 (1990) 303

Sawyer v. Whitley, 505 U.S. 333 (1992) 344

Schlup v. Delo, 513 U.S. 298 (1995) 338

Sheets v. Butera, 389 F. 3d 772 (CA8 2004) 368–369

Shell v. Mississippi, 498 U.S. 1 (1990) 145

Simmons v. South Carolina 512 U.S. 154 (1994) x

Skipper v. South Carolina, 476 U.S. 1 (1986) 302

Smith v. Murray, 477 U.S. 527 (1986) 358–359

Smith v. Texas, 543 U.S. 37 (2004) 111

Snider v. Peyton, 356 F.2d 626, 627 (CA4 1966) 141

Snyder v. Massachusetts, 291 U.S. 97 (1934) 284

Sochor v. Florida, 504 U.S. 527 (1992) 314

Solem v. Helm, 463 U.S. 277 (1983) 122, 174, 178, 193, 360

South Carolina v. Gathers, 490 U.S. 805 (1989) 275, 276, 278, 284

Spaziano v. Florida, 468 U.S. 447 (1984) 235, 236–241, 314, 355, 357

Stanford v. Kentucky, 492 U.S. 361 (1989) x, 181, 189, 200, 202, 207, 211, 220

State v. Sheets, 260 Neb 325, 327, 618 N. W. 2d 117, 122 (2000) 369

Strickland v. Washington, 466 U.S. 668 (1984) ix, 317–329, 335

Sumner v. Shuman, 483 U.S. 66 (1987) 198

Tennard v. Dretke, 542 U.S. 274 (2004) 111

Thompson v. Oklahoma, 487 U.S. 815, 863–864 (1988) 191, 202

Tibbs v. Florida, 457 U.S. 31 (1982) 369

Tison v. Arizona, 481 U.S. 137 (1987) 155, 165–180, 193, 243, 279, 289, 290

Townsend v. Sain, 372 U.S. 293 (1963) 341, 342, 354, 358

Trop v. Dulles, 356 U.S. 86 (1958) 8, 44, 51, 72, 89, 96, 136, 184, 207–208, 222

Tuilaepa v. California, 512 U.S. 967 (1994) 145

Turberville v. United States, 112 U.S. App. D.C. 400 (1962) 259

Turner v. Murray, 476 U.S. 28 (1986) x, 119, 126, 253, 254, 260–263

United States v. Lovett, 328 U.S. 303, 324 (1946) 57

United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833) 346–347

Uttecht v. Brown, 551 U.S. 1 (2007) ix, 253, 254, 264–274

Wainwright v. Witt, 469 U.S. 412 (1985) 254, 264–265, 271

Walton v. Arizona, 497 U.S. 639 (1990) 99, 145, 236, 242, 244, 247, 248, 250, 295, 307, 313, 315

Washington v. Davis, 426 U.S. 229 (1976) 113

Weems v. United States, 217 U.S. 349 (1910) 8, 47, 50, 136, 184, 404

West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943) 360

Wilkerson v. Utah, 99 U.S. 130 (1879) 7, 50, 63, 72, 96, 391

Williams v. Florida, 399 U.S. 78 (1970) 305

Williams v. New York, 337 U.S. 241, 248 (1949) 57, 73

Williams v. Taylor, 529 U.S. 362 (2000) ix, 317, 329–335

Witherspooon v. Illinois, 391 U.S. 510 (1968) 6, 41, 72, 88, 120, 238, 249, 253–260, 264, 272

Woodson v. North Carolina, 428 U.S. 280 (1976) 67, 85–97, 99, 103, 107, 121n37, 181, 198, 285, 295–296, 306, 428, 437

Zant v. Stephens, 462 U.S. 862, 885 (1983) 131

Chapter 1

Capital Punishment in America

History

Capital punishment is of ancient origin. Indeed, the very name capital indicates its antiquity. The word derives from the Latin caput, which means head. Capital punishment, therefore, may refer to decapitation or beheading as a method of execution. Today the phrase is interchangeable with the term death penalty regardless of how imposed.

The death penalty was transported from England to the American colonies during the 17th and 18th centuries. The English legal system placed substantial reliance on it, in part because the concept of imprisoning people for varying lengths of time had not fully developed until the end of the 1700s.

The death penalty has persisted for almost four centuries on American soil, accounting for, at best estimate, about 20,000 executions.¹ But the penalty has undergone dramatic changes over that time. The next three pages briefly examine the trends up to about 1950, when the forces that would lead the United States Supreme Court to constitutionalize the death penalty began to appear. Pages 4 to 6 provide a concise survey of trends since 1950, setting forth the historical context for the earliest cases in this book. This historical survey ends with the landmark cases of the 1970s, excerpts from which are reprinted in Chapters 2 through 5. The post-1976 history may be gleaned from Chapters 6 through 19.

Colonial Practice to the Mid-20th Century

In America in the 17th and 18th centuries, death was imposed by hanging in a public and solemn occasion attended by everyone in the area—men, women, and children. Public execution was intended to provide justice to the accused (retribution), to frighten others in order to prevent crime (deterrence), and to give the condemned an opportunity to repent and thereby gain salvation in an afterlife. Hangings were accompanied by sermons, a speech by the condemned, and hymn singing. They were, in short, quasi-religious occasions. Their solemnity reinforced a sense of community and impressed the average person with the awesome power of the law.

The list of capital crimes in those days was quite long; however, the proportion of offenders actually executed is uncertain. Although trials took less than a day and, until the 19th century, appeals were not permitted, there was a great deal of leniency. An accused sometimes was granted benefit of clergy, which resulted in the remittance of certain death sentences.² Executive clemency by state governors was common in the 18th century as well. In New York, for instance, more than half of the condemned received clemency. There even were mock hangings to emphatically deliver the message but spare the life of the offender.

There was virtually no opposition to the death penalty until the end of the 18th century, when the concept of imprisoning criminals for varying amounts of time, depending on their crimes, began to mature. Efforts to completely abolish capital punishment gained ground in the 19th century. Beginning with Michigan in 1846, some midwestern states ended the practice altogether. Occasionally, however, in response to a particularly atrocious crime, the penalty would be reinstated, only to be reabolished later. In the South, largely because of slavery, the movement to abolish capital punishment never caught on.³

As with most aspects of American culture, the death penalty was applied discriminatorily against African Americans. This was especially true in the slaveholding states of the South, where certain capital crimes were applicable only to blacks. Slaves could be executed for such crimes as wounding a white man, a third conviction for striking a white man, poisoning or attempted poisoning, crop burning, insurrection, and assault with intent to rape a white woman.⁴

Throughout the 19th century there were widespread extralegal executions in the United States—lynchings—especially in the West and South. These took place in areas where there were few law enforcement personnel and often ineffectual criminal justice systems. Mainly whites were lynched in the West, and, before the Civil War, that was true even in the South. At the end of the 19th century, however, when the southern states adopted a rigid system of segregation by race, it was overwhelmingly (but not exclusively) blacks who were hanged without trials. Lynching declined dramatically in the United States by the early decades of the 20th century.⁵

One effect of the movement to abolish capital punishment was a steady reduction in the number and kinds of crimes for which death was a possible punishment. In Pennsylvania at the end of the 18th century, levels of homicide, or degrees of murder, were established to differentiate capital from noncapital crimes. The practice of dividing murder into first- and second-degree offenses, with only the former being death-eligible, was adopted by nearly all states during the 19th century.

Under the system inherited from England, death had been a mandatory penalty for certain crimes. Beginning in the mid-1800s, however, American jurisdictions abandoned mandatory death sentencing in favor of allowing jurors to choose between death and imprisonment. A major reason for this change was jury nullification, through which jurors acquitted obviously guilty culprits rather than send them to the gallows.

Yet another effect of the reform movement was to seek more humane methods of execution. The primary method until the 20th century was hanging, but hangings were known to go gruesomely wrong sometimes, decapitating some criminals and leaving others dangling for long periods. Moreover, public hangings were becoming unruly gatherings, attended by drunks and rowdies—a far cry from the solemn community rituals of the previous century. By the end of the 19th century, executions, conducted at a central location within the state, became closed events to which only a few invited guests were admitted. The last public execution in the United States was in 1936.

The power—and danger—of harnessed electricity convinced the New York legislature to mandate electrocution (a newly coined term) as the state’s mode of execution in 1888.⁶ The Supreme Court gave approval in In re Kemmler, 136 U.S. 436 (1890), and by 1913 electrocution had been adopted in 14 more states. It was believed to be more surely and swiftly lethal and therefore more humane than hanging. Beginning in 1921, 11 states adopted lethal gas, also for humanitarian reasons.

By the middle of the 20th century, in most American jurisdictions death was an authorized punishment only for the highest level of homicide offense, typically first-degree murder. A few states still had the death penalty on the books for some nonhomicide crimes like rape, kidnapping, and armed robbery, but rarely if ever resorted to it—except sometimes in the South for blacks convicted of raping a white woman.

By 1950, about one-quarter of the states—none in the South—had abolished the death penalty. Criminal defendants also had gained considerable procedural protections, including more federal constitutional rights, more consistent assistance of defense lawyers, and greater availability of appellate review. By mid-century, death-sentenced inmates were increasingly prevailing on appeal, and even those who didn’t sometimes managed to litigate for years before being executed.

1950 to 1976

From 1950 to 1968, the death penalty went into decline. The nationwide total of 158 death sentences handed out in 1935 decreased to 79 in 1950. Actual executions also declined significantly (albeit with some modest yearly spikes upward) and then went into freefall—plummeting from over 40 in 1962 to 0 by 1968 (see Appendix A, Figure A.7). The reason was threefold.

First, the rights of criminal defendants, especially the right to counsel, were dramatically expanded. Many states, even without prompting by the U.S. Supreme Court, began to grant indigent defendants the right to counsel at public expense in capital cases. And the Court, beginning in limited fashion in the Scottsboro Boys case in 1932 and culminating in the sweeping Gideon ruling three decades later, established a federal constitutional right to state-paid counsel for all felony trials.⁷

Moreover, largely in the 1960s, the Supreme Court incorporated most of the criminal procedure protections of the Bill of Rights into the Fourteenth Amendment Due Process Clause, making these rights applicable to the states, where the overwhelming majority of capital cases, and indeed all criminal cases, were prosecuted. The effect of this was to give the Supreme Court power over criminal proceedings throughout the United States, power that the Court under Chief Justice Earl Warren used to greatly expand defendants’ rights. The increasing participation of defense lawyers and the proliferation of constitutional rights made trials more time-consuming and complicated, and encouraged more vigorous appellate review.

Second, public opinion in favor of the death penalty was softening. In 1953, roughly 70% of the American public approved of capital punishment for someone convicted of murder. By the 1960s, that support had fallen to less than half of the respondents, with only 42% giving approval in 1966. (See Appendix A, Figure A.8 and Table A.5.)

Third, the leaders of the civil rights movement, in full swing at the time, took aim at the death penalty, which they and their civil liberties allies saw as a vestige of the racially discriminatory criminal justice system established in the southern states in the 19th century. In particular, lawyers from the NAACP’s Legal Defense Fund and the American Civil Liberties Union were keen to attack the institution of capital punishment. As historian Stuart Banner put it, [t]he idea of mounting a systemic challenge to the death penalty was an outgrowth of the civil rights movement.⁸

These three developments proved to be a potent combination in gradually slowing the number of executions and finally, following a gas chamber execution in Colorado in mid-1967, bringing them to a screeching halt for an entire decade.

Litigation had proven successful in attacking race discrimination, and the anti−death penalty lawyers hoped the same might be true for capital punishment. Their hopes were galvanized by a dissent by Supreme Court Justice Arthur Goldberg in a 1963 capital case, in which three Justices indicated that the proportionality of a death sentence for rape was an important constitutional issue that should have been reviewed by the High Court.⁹ The first major legal blow to the death penalty came five years later in Witherspoon v. Illinois (Chapter 13), where the Court ruled on the selection of jurors in capital cases. In 1971, however, the abolitionist legal campaign suffered what appeared to be a mortal setback in McGautha v. California, 402 U.S. 183 (1971). There the Court rejected, by a 6-to-3 vote, the due process argument that giving juries unrestricted discretion to decide whether a death sentence should be imposed—the practice in every death penalty jurisdiction—resulted in unconstitutional arbitrariness. Despite the rebuff, the anti−death penalty lawyers put forth the same argument in the Court’s next Term in the case of William Henry Furman, this time couching the claim in terms of the Eighth Amendment’s Cruel and Unusual Punishments Clause.

Much to everyone’s astonishment, the vote in Furman v. Georgia was 5 to 4 in favor of Furman’s position. (See Chapter 2.) While the defense lawyers’ argument had not changed, the minds of Justices Potter Stewart and Byron White had, seemingly influenced by the dramatic drop in death sentences and executions since the 1930s and by the outright abolition by several states in the preceding two decades.

The Furman decision, which declared the death penalty unconstitutional as it was then applied, stunned the nation and set off a pro−death penalty backlash culminating in the 1976 Supreme Court reaffirmations of capital punishment. (See Chapters 3 through 5.) It also moved the Court to center stage in the molding of capital case procedures. The death penalty had been, in a word, constitutionalized.

The cruel and unusual punishments clause

The Eighth Amendment to the United States Constitution, along with the rest of the Bill of Rights, was ratified in 1791. It says,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Cruel and Unusual Punishments Clause was derived from the English Bill of Rights of 1689, from which the Eighth Amendment language was taken verbatim. The English Bill was a response to the cruelty of King James II, who savagely suppressed a revolution against him. Hundreds of rebels were captured, tried before special courts (the Bloody Assizes), and brutally executed by being hanged, cut down before death, disemboweled, beheaded, and hacked to pieces. Use of the rack, drawing and quartering, and burning alive also were common in Europe prior to the 18th century.

By 1791, the phrase nor cruel and unusual punishments inflicted had become a stock verbal formula in foundational documents of the era. It appeared in the Virginia Declaration of Rights of 1776, several other state constitutions, and the Northwest Ordinance of 1787. Thus, there was almost no debate about it during the adoption of the Bill of Rights. Clearly, though, the Clause was intended to at least forbid the federal government¹⁰ from using barbarous modes of execution that inflicted more pain than was necessary to extinguish life. Equally clearly, the Clause was not intended to abolish the practice of capital punishment, which was well established before, during, and after the founding era and was recognized in the Fifth Amendment.¹¹

The Cruel and Unusual Punishments Clause was scarcely mentioned in the courts for almost 90 years after its adoption. It was construed for the first time by the United States Supreme Court in 1879 and again in 1890. These cases involved claims, both rejected, within the core historical meaning of the Clause—that a particular mode of execution was barbarous.

First, in Wilkerson v. Utah, 99 U.S. 130 (1879), the Court unanimously upheld a sentence of death by firing squad. Although the Eighth Amendment had not yet been made applicable to the states, it was enforceable in federal territories such as Utah at the time of Wilkerson’s case. In In re Kemmler, 136 U.S. 436 (1890), the Court, again without dissent, approved New York State’s use of the electric chair. This case was decided on the basis of the Fourteenth Amendment’s Due Process Clause, which, the Justices assumed, made the Cruel and Unusual Punishments Clause applicable to the states. Kemmler merely reaffirmed the core principle: Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution.¹²

Before 1972, the Court had held only three punishments unconstitutionally cruel and unusual—all in noncapital cases. First, in Weems v. United States, 217 U.S. 349 (1910), the Philippines, then under U.S. control as a result of victory in the Spanish-American War, imposed 12 years’ imprisonment in heavy chains at hard and painful labor for minor falsification of government documents—a punishment derived from Spanish law, not from the Anglo-American legal tradition. Looking askance at this punishment that has no fellow in American legislation and come[s] to us from a government of a different form and genius than ours, the Court for the first time indicated that the Eighth Amendment does more than simply ban barbarous punishment; it also prohibits punishments that are disproportionate to the offense.

Second, in Trop v. Dulles, 356 U.S. 86 (1958), the Court held that it was cruel and unusual punishment to strip someone of his citizenship for the crime of wartime desertion. In so holding, the Court stated: The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. This would become the polestar for the modern Supreme Court’s position that it is not bound by the original understanding of what is cruel and unusual. So, even though the 18th century accepted pillorying, branding, and cropping or nailing of the ears, the Court would stand ready to squelch reappearance of such punishments in the unlikely event that some state legislature would try to impose them.

Third and finally, in Robinson v. California, 370 U.S. 660 (1962), the Court held that being addicted to illegal drugs (as opposed to possessing them) could not be criminalized because addiction is a condition or status. Any punishment—even a minimal one—for something that is not a crime is cruel and unusual.

It was with this meager body of precedent that the Supreme Court in 1972 faced the claim in Furman v. Georgia that the death penalty as then applied in the United States was unconstitutionally cruel and unusual.

Arguments for and against capital punishment

The death penalty has been the subject of countless fervent debates. These arguments often end inconclusively because they usually reflect disagreements about ultimate values. Even where empirical facts, such as whether the death penalty deters murder, are relevant in the determination of public policy, discussions often reach an impasse. As will be seen, some empirical issues, such as the deterrence question, are as a practical matter very difficult to resolve.

The Supreme Court cases in this book, implicate, if not explicitly then implicitly, most of the major arguments for and against capital punishment. We think it useful to present those arguments in plain English in the sections that follow. No attempt is made to resolve the differences between the positions. Instead, we identify as objectively as possible the best arguments for each side. As you will see, there are compelling claims on both sides of the death penalty divide.

History

Proponents of the death penalty point out that death is a punishment with a pedigree thousands of years old, and that death has been an acceptable punishment in the United States since earliest colonial days. Moreover, the framers of the Constitution expressed no opposition to the penalty, and the Constitution itself (notably in the Fifth Amendment) implicitly approved of it.

Opponents respond that since the 18th century Enlightenment, the trend of world history has been inexorably against death as a punishment. This trend has accelerated since the bloody horrors of World War II, and the nations of Europe, along with countries that have close ties to them (e.g., Canada), have steadily abandoned the death penalty. (For a list of retentionist and abolitionist countries, see the end of Appendix A.)

Opponents further argue that the death penalty is out of step with the historical abolition of other corporal punishments (those that are intended to harm the body), such as flogging or branding, which have been replaced by imprisonment. Proponents respond that while death may be one of the few remaining corporal punishments, it is uniquely well suited to especially horrific murderers.

State Power

Death penalty abolitionists sometimes contend that governments (also called the State, which does not here refer to the states of the United States) do not have the authority to put their citizens to death. Since many countries have established capital punishment by law, this claim rests on a higher law position. The present-day view is that there is an evolving body of human rights that transcend individual governments, and that capital punishment is a denial of a basic human right to life. The sticking point here is that there is no universal agreement on the content of human rights. While many nations have signed international agreements that abolish the death penalty, many more, including the United States, have declined to do so.

There is a more profound philosophical issue involved as well. Opponents of the death penalty claim that no government has the authority to kill its citizens because that authority intrudes into a personal sphere beyond the reach of the State. This libertarian argument resonates with Americans who recognize the self-evident truths of the Declaration of Independence: that each individual is endowed with certain unalienable Rights that all governments must respect, including the right to "life, liberty and the pursuit of happiness."

Supporters of the death penalty can point to the Constitution, which arguably trumps the Declaration and acknowledges the authority of the American government to take life (provided it is done with due process of law). Furthermore, it is universally recognized that the State has the authority to conscript (draft) soldiers and place them in situations in which there is a great likelihood that many will lose their lives. If the State can force citizens to face death on the battlefield, then can it not impose death on its worst criminals?

The reference to due process raises a related point. Abolitionists contend that governments time and again act arbitrarily, imposing penalties unjustly, often for political purposes. The use of the death penalty poses special risks because once imposed it cannot be terminated, not even after change to a regime that respects due process.

Proponents respond that, although arbitrariness and lack of due process have been hallmarks of dictatorial governments, they are not characteristic of American democracy, with its system of checks and balances. Furthermore, they add, the modern death penalty is imposed only after the most elaborate process (as this book makes especially clear), which sharply reduces, if not eliminates, arbitrariness. Plus, the United States enshrines public participation in its criminal justice system through the jury trial—a strong insurance policy against abuse of the system by those in power. And juries play an even greater role in capital cases, where they usually determine both guilt and sentence.

Religious Beliefs

Many Americans derive their views on the death penalty from deep-seated religious convictions. For those who are Christians or Jews, proper interpretation of what the Bible says about the death penalty is crucial. But biblical teaching is susceptible to a variety of interpretations, and unlike the U.S. Constitution, which has the benefit of an ultimate interpreter, the meaning of scripture remains contested.

What follows is a sampling of the positions of religious groups on capital punishment. The two statements by Protestant groups present opposing views. The Catholic Church, represented by an encyclical of Pope John Paul II, offers a limited endorsement. As there is no official Jewish position on the death penalty, we offer the views of contemporary rabbinical authority which also give qualified support.

The rank and file of religious adherents, you will not be surprised to learn, may have views that differ considerably from the official positions of their churches. In a recent Gallup opinion poll, Americans who self-identified as Christians or Jews supported the death penalty as follows: Protestants (71%), Catholics (66%), and Jews (57%).¹³

The Evangelical Lutheran Church in America (Protestant)

For the Evangelical Lutheran Church in America, following Jesus leads to a commitment to restorative justice. This commitment means addressing the hurt of each person whose life has been touched by violent crime. Restorative justice makes the community safer for all.

It is because of this church’s ministry with and to people affected by violent crime that we oppose the death penalty. Executions focus on the convicted murderer, providing very little for the victim’s family or anyone else whose life has been touched by the crime. Capital punishment focuses on retribution, sometimes reflecting a spirit of vengeance. Executions do not restore broken society and can actually work counter to restoration.

This church recognizes the need to protect society from people who endanger that society: removing offenders from the general population, placing them in a secure facility, and denying them the possibility of committing further crime (i.e., incapacitating them). Our challenge is to incapacitate offenders in a manner that limits violence, and holds open the possibility of conversion and restoration.¹⁴

The Southern Baptist Convention (Protestant)

Whereas, The Bible teaches that every human life has sacred value (Genesis 1:27) and forbids the taking of innocent human life (Exodus 20:13); and

Whereas, God has vested in the civil magistrate the responsibility of protecting the innocent and punishing the guilty (Romans 13:1-3); and

Whereas, We recognize that fallen human nature has made impossible a perfect judicial system; and

Whereas, God authorized capital punishment for murder after the Noahic Flood, validating its legitimacy in human society (Genesis 9:6); and

Whereas, God forbids personal revenge (Romans 12:19) and has established capital punishment as just and appropriate; and

Whereas, God requires proof of guilt before any punishment is administered (Deuteronomy 19:15-19); and

Whereas, God’s instructions require a civil magistrate to judge all people equally under the law, regardless of class or status (Leviticus 19:15; Deuteronomy 1:17); and

Whereas, All people, including those guilty of capital crimes, are created in the image of God and should be treated with dignity (Genesis 1:27).

Therefore, be it Resolved, That the messengers to the Southern Baptist Convention … support the fair and equitable use of capital punishment by civil magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death; and

Be it further Resolved, That we urge that capital punishment be administered only when the pursuit of truth and justice result in clear and overwhelming evidence of guilt; and

Be it further Resolved, That because of our deep reverence for human life, our profound respect for the rights of individuals, and our respect for the law, we call for vigilance, justice, and equity in the criminal justice system; and

Be it further Resolved, That we urge that capital punishment be applied as justly and as fairly as possible without undue delay, without reference to the race, class, or status of the guilty; and

Be it further Resolved, That we call on civil magistrates to use humane means in administering capital punishment; and

Be it finally Resolved, that we commit ourselves to love, to pray for, and to minister the gospel to victims and perpetrators of crimes, realizing that only in Christ is there forgiveness of sin, reconciliation, emotional and spiritual healing, and the gift of eternal life.¹⁵

The Roman Catholic Church

… This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society. The primary purpose of the punishment which society inflicts is to redress the disorder caused by the offence. Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.¹⁶

Judaism

In recent years leading rabbinical authorities in the United States have been consulted by the government regarding the Orthodox Jewish beliefs regarding capital punishment. Rabbi Moshe Feinstein, one of the foremost modern authorities on Jewish Law, explained:

the death penalty is administered … not out of hate for the wrongdoers or [even] out of concern for the stability of society … but rather so that people should be aware of the seriousness of these prohibitions and therefore would not transgress them … And so, throughout the generations there were virtually no murderers among the Jews, because of the gravity of the prohibition and because they were educated by the Torah and by the punishments of the Torah to understand the gravity of the prohibition, and not because they were simply afraid of the punishment.

We can learn from his reply that the educational dimension of a system of justice is at least as important as the deterrent factor. Severe punishments are meant to impress upon citizens the gravity of the crime.

Rabbi Moshe [Feinstein] adds that although Jewish Law does not advocate capital punishment in all cases, it nevertheless permits the death penalty to be applied where the law of the land permits it. However this should be restricted to cases of particularly cruel murders, or in a situation where bloodshed becomes widespread and out of control and the threat of capital punishment will restore respect for the law.¹⁷

Religious views, in the American system of separation of church and state, are relegated to the private sphere and play no overt role in the interpretation of the Constitution. Neither may they play such a role in the application of the death penalty. If a prospective juror, for example, holds an unshakeable belief that scripture requires death for certain murders, there is a good chance that he or she will never serve in a death penalty case (see Chapter 13).

Justifications of Punishment

The traditional justifications of criminal punishment are retribution, deterrence, incapacitation, and rehabilitation. Although they apply to punishment in general, they also significantly contribute to the debate between advocates of the death penalty and their adversaries.

Retribution and Related Arguments

The theory of retribution says that punishment is justified because, and only because, the criminal has transgressed. Two principles or corollaries of retributivism are that only the guilty may be punished and that the punishment must fit (be proportional to) the crime. The death penalty dispute often turns on the proportionality question. Where the crime involves the taking of life, advocates of capital punishment say that the only proportional penalty is death, for only death is severe enough to balance the wrong that was done. Furthermore, the fit, as in Exodus 21, is perfect: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe. In its pure formulation, the lex talionis, or law of retaliation, requires that what was done to the victim be done to the criminal.

Death penalty opponents think the lex talionis is barbaric and add that the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits many punishments that replicate the crime, such as castration of rapists or severing the hands of thieves. Defenders of the death penalty no longer rely on the law of retaliation. They say that relative proportionality—the more reprehensible the crime, the harsher the punishment—is all that is needed to support death. In other words, proportional punishment requires fine-tuning so that the worst killings receive the severest sanction while the less reprehensible killings do not. This is possible only with a death penalty, they reason, as no other punishment is sufficiently severe for the most reprehensible crimes.

Opponents respond that imprisonment is perfect for tailoring punishments because it can be lengthened to the span of a human life. The sentence of life without parole is sufficient to punish even the worst offenders, they add, by condemning such criminals to a lifetime loss of freedom with its accompanying regimentation, degradation, and boredom. Abolitionists also fear that enforcement of the death penalty will extend to more and more crimes, not just the most reprehensible. As proof, they point out that even in the contemporary period many awful murders end with imprisonment while less heinous crimes are punished by death. The pro−death penalty camp reminds us that the Supreme Court has steadfastly restricted capital punishment so that it is virtually unenforceable against any crime other than murder in the first degree.

A related—but, strictly speaking not a retributivist—argument of proponents is that the public’s sense of justice demands a death penalty as denunciation for the vilest crimes.¹⁸ To opponents, however, any argument that the criminal law should gratify public clamor for death is barbaric; it is vengeance in disguise—a catering to the darkest of human instincts. Opponents also claim that executing criminals, far from affirming the value of human life, devalues it. This sentiment fits neatly on the bumper sticker sometimes sported by opponents: Why do we kill people to show that killing people is wrong?

Proponents relying on the denunciation argument sometimes take a different tack, defending the death penalty on communitarian grounds. The public’s collective sense of justice defines us as a community; it says that we all care about one another, that we are deeply grieved when one of our members, though perfectly innocent, is wrongfully taken from us. (We may care about lives lost in other communities as well, but loss of innocent American lives usually is more deeply disturbing to us than is loss of foreign lives. Naturally, other communities feel the same way about their own losses.) The death of the killer at the hands of the community (represented, of course, by the criminal justice system) reaffirms our common bond. It declares, more than any lesser punishment, that we are horrified by this loss and consider it an attack on us all. Anger is an expression of that caring, Walter Berns contends, and society needs men [and women] who care for each other.¹⁹

Related, but again not a retributive argument as properly understood, is the role of the death penalty in preventing vigilantism, the enforcement of community norms outside the legal process. America has a significant history here, especially in the 19th century West and South, where hundreds were hanged by Judge Lynch. The pro−death penalty argument is that many of these extralegal killings, especially in the West, reflect the lack of a properly functioning criminal justice system. In short, when a murder victim’s relatives and friends, to say nothing of the general public, come to feel that the authorities are incapable of providing justice, they may be forced to provide it themselves.

Death penalty opponents consider this argument totally unrealistic in modern times, because in American society today such manifestations of vigilantism as clan feuds and kin reprisals have been almost universally replaced (except in a few subcultures such as criminal street gangs) by a recognition that the government has a monopoly on retribution. Of course, this trust in the justice system is bolstered by the death penalty, which has not been abolished in the United States. Would such trust erode, and would more people resort to private enforcement, if the movement to abolish were successful?

Deterrence

A fundamental assumption of the criminal law is that punishing criminals discourages potential offenders from committing crime. This is known as general deterrence. Here