Trends in the United States
Toward Abolition of the Death Penalty
by Michael L. Radelet, Ph.D.
Department of Sociology
University of Colorado
219 Ketchum; 327 UCB
Boulder, CO 80309-0327
Paper presented at annual dinner meeting of the
Iowans Against the Death Penalty (IADP),
Des Moines, October 26, 2002.
In a monumental 1972 decision by the U.S. Supreme Court, all but a few death penalty statutes in the United States were declared unconstitutional (Furman v. Georgia, 408 U.S. 238). Consequentially, each of the 630 inmates then on America's death rows was resentenced to life imprisonment, and many thought we would never again see an execution. However, in 1976 the Supreme Court reversed its course toward abolition in Gregg v. Georgia (428 U.S. 153), and approved several newly-enacted capital statutes. On January 17, 1977 -- just over 25 years
ago -- the moratorium ended with the execution of Gary Gilmore in Utah. Today gives us an opportunity to compare the ways in which the death penalty was justified at the time of Gilmore's death and the ways that it is justified today.
In my remarks tonight I will outline the major arguments made in support of the death penalty at the time of Gilmore and examine the responses by scholars, defense attorneys, and death penalty foes that were made to these justifications. I will argue that because of the high quality of those responses, death penalty supporters have been forced to make dramatic shifts in the past 25 years in how they support their
position. I will argue that those who support the death penalty today, compared to 25 years ago, rely much less on such issues as deterrence, incapacitation, cost, and religious principles, and more on grounds of
retribution. In addition, those who support the death penalty are more likely today than in years past to acknowledge the inevitability of racial and class bias in death sentencing, as well as the inevitability of executing the innocent. I will argue that the evidence that has caused the shift in pro-death penalty forces is part of a larger historical and worldwide trend toward total abolition of the death penalty.
Public opinion on the death penalty in America over the past 50 years has vacillated. The best data on public attitudes toward capital punishment come from Gallup polls, which show that support decreased
through the 1950s and until 1966, when only 47% of the American public voiced support (Ellsworth & Gross 1994). Support then gradually increased to a point in the 1980s and early 1990s where upwards of three quarters of Americans supported the death penalty under at least some circumstances. By 1994, support had reached 80% (Gallup & Newport 1991:44,
Gillespie 1999). The most more recent data indicate that public approval for the death penalty has decreased rather significantly in the past few years. By May 2002, support for capital punishment had dropped to 65% (ABC News Poll).
To address the question of what accounts for these patterns, let's
turn the clock back twenty-five years to the time of Gilmore's execution
and examine the main arguments that supporters of the death penalty were
making at the time.
In the mid-1970s, the top argument in favor of the death penalty
was deterrence. This hypothesis suggests that we must punish offenders to
discourage others from committing similar offenses; we punish past
offenders to send a message to potential offenders. In a broad sense, the
deterrent effect of punishment is thought to be a function of three main
elements: certainty, celerity, and severity. First, people do not violate
laws if they are certain that they will be caught and punished. Second,
celerity refers to the elapsed time between the commission of an offense
and the administration of punishment. In theory, the more quickly a
punishment is carried out, the greater its deterrent effect. Third, the
deterrent effect of a punishment is a function of its severity. However,
over the last two decades more and more scholars and citizens have realized
that the deterrent effect of a punishment is not a consistent direct effect
of its severity -- after a while, increases in the severity of a punishment
no longer add to its deterrent benefits. In fact, increases in a
punishment's severity have decreasing incremental deterrent effects, so
that eventually any increase in severity will no longer matter. If one
wishes to deter another from leaning on a stove, medium heat works just as
well as high heat.
At the time Gilmore was executed, the main justification for the
death penalty offered by its supporters was deterrence. And, while
scholars have studied this hypothesis for the past 75 years, only recently
have we developed the sophisticated data banks and statistical techniques
to fully explore the issue. Scores of researchers have examined the
possibility that the death penalty has a greater deterrent effect on
homicide rates than long-term imprisonment. While some econometric studies
in the mid-1970s claimed to find deterrent effects (e.g., Ehrlich 1975), it
was soon discovered that these studies suffered from critical flaws (e.g.,
Klein et al. 1978). Overall, virtually all of the deterrence studies done
in the past 25 years have failed to support the hypothesis that the death
penalty is a more effective deterrent to criminal homicides than long
imprisonment. "The available evidence remains 'clear and abundant' that, as
practiced in the United States, capital punishment is not more effective
than imprisonment in deterring murder" (Bailey & Peterson 1997:155).
There is widespread agreement among both criminologists and law
enforcement officials that capital punishment has little curbing effect on
homicide rates superior to long term imprisonment. In a recent survey of
70 current and former presidents of three professional associations of
criminologists (the American Society of Criminology, the Academy of
Criminal Justice Sciences, and the Law and Society Association), 85% of the
experts agreed that the empirical research on deterrence has shown that the
death penalty never has been, is not, and never could be superior to long
prison sentences as a deterrent to criminal violence (Radelet & Akers
1996). Similarly, a 1995 survey of nearly 400 randomly-selected police
chiefs and county sheriffs from throughout the U.S. found that two-thirds
did not believe that the death penalty significantly lowered the number of
murders (Radelet & Akers 1996).
Opinion polls show that the general public is gradually accepting
the results from this body of research. According to the 2001 Gallup Poll,
only 10% of those who support the death penalty believe it has deterrent
effects (Jones 2001). In short, a remarkable change in the way the death
penalty is justified is occurring. What was once the public's most
widely-cited justification for the death penalty has by now lost virtually
all of its appeal.
A second change in death penalty arguments involves the
incapacitation hypothesis, which suggests the need to execute the most
heinous killers in order to prevent them from killing again. According to
this view, we need the death penalty to protect the public from recidivist
murders. On its face it is a simple and attractive position: No executed
prisoner has ever killed again, and some convicted murderers will
undoubtedly kill again if, instead of being executed, they are sentenced to
Research addressing this issue has focused on calculating precise
risks of prison homicides and recidivist murder. This work has found that
the odds of repeat murder are minuscule, and that people convicted of
homicide tend to make better adjustments to prison than other convicted
felons (Bedau 1982a, 1997, Stanton 1969, Wolfson 1982). The best research
on this issue has been done by James Marquart and Jonathan Sorensen, who
tracked down 558 of the 630 people on death row when all death sentences in
the U.S. were invalidated by the Supreme Court in 1972. Contrary to the
predictions of those who advocate the death penalty on the grounds of
incapacitation, the researchers found that among those whose death
sentences were commuted in 1972, only about one percent went on to kill
again. This figure is almost identical with the number of death row
prisoners later found to be innocent (Marquart & Sorensen
1989). Interpreted another way, these figures suggest that 100 prisoners
would have to be executed to incapacitate the one person who statistically
might be expected to repeat. Arguably, today's more sophisticated prisons
and the virtual elimination of parole have reduced the risks of repeat
homicide even further.
While the incapacitation argument might have made sense in less
developed countries or an era when there were no prisons available for
long-term confinement, the empirical evidence suggests that today's prisons
and the widespread availability of long prison terms are just as effective
as capital punishment in preventing murderers from repeating their
crimes. Still, leading scholars (Ellsworth & Gross 1994; Gross 1998)
conclude that next to retribution, incapacitation is the second most
popular reason for favoring the death penalty. In a 1991 national poll,
for example, 19% of death penalty supporters cited incapacitation as a
reason for favoring the death penalty (Gross 1998:1454). But in the last
two decades it has become clear that if citizens are convinced that
convicted murderers will never be released from prison, support for the
death penalty drops dramatically.
The public opinion polls I mentioned earlier measure support for
the death penalty in the abstract, not support for the death penalty as it
is actually applied. A key factor that has changed in sentencing for
capital crimes since Gilmore's death has been the increased availability of
"life without parole" (LWOP) as an alternative to the death
penalty. Today, at least 32 states offer this option (Wright 1990),
although it is clear that most citizens and jurors do not realize this and
vastly underestimate the amount of time that those convicted of capital
murders will spend in prison (Fox et al. 1990-91:511-15, Gross
1998:1460-62). Mention Florida surveys. Another segment of the population
realizes that life without parole is an alternative to the death penalty,
but in spite of this, believe that future political leaders or judges will
find ways to release life-sentenced inmates. It is a paradoxical position:
such citizens support giving the government the ultimate power to take the
lives of its citizens, but do so because of distrust of these same
governments and/or the perception of governmental incompetency.
Nonetheless, when asked about support for the death penalty given
an alternative punishment of life without parole, support for the death
penalty plummets. Nationally, the 2002 Gallup Poll found that only 52% of
the respondents supported the death penalty given the alternative of life
without parole -- a vast difference from the "overwhelming support" that
many erroneously believe the death penalty enjoys. An ABC/Washington Post
Poll taken in April 2001 found 63% support for the death penalty, but this
falls to 46% given LWOP. As more and more Americans learn that, absent the
death penalty, those convicted of capital crimes will never be released
from prison, further withering in death penalty support seems likely.
CAPRICE AND BIAS
As new death penalty laws were being passed in the 1970s to
replace those invalidated by the Furman decision, many thought that the
death penalty could be applied in a way that would avoid the arbitrariness
and racial and class bias that had been condemned in Furman (Bedau 1982b,
Black 1981). However, research conducted in the years since has all but
unanimously concluded that the new laws have failed to achieve this
goal. Most of this scholarship concludes that for comparable crimes, the
death penalty is between three and four times more likely to be imposed in
cases in which the victim is white rather than black (Baldus & Woodworth
1998, Baldus et al. 1998; Baldus et al. 1990, Bowers et al. 1984, Gross &
Mauro 1989, Radelet & Pierce 1991).
By any measure, the most comprehensive research ever produced on
sentencing disparities in American criminal courts is the work of David
Baldus and his colleagues conducted in Georgia in the 1970s and 1980s
(Baldus et al. 1990). After statistically controlling for some 230
variables, these researchers concluded that the odds of a death sentence
for those who kill whites in Georgia are 4.3 times higher than the odds of
a death sentence for those who kill blacks. But after the 1987 McCleskey
decision, those of us who do race research thought that we were out of
Two ways in which possible bias and arbitrariness in the death
penalty can be reduced is through the provision of effective counsel to the
poor and the careful use of executive clemency powers. Again, social
science research addressing these issues has identified problems.
Research on the quality of attorneys provided to indigent
defendants charged with capital offenses has relied on case-study
methodology and examination of statutory law or customary procedures used
to attract and compensate counsel. Stephen Bright has documented dozens of
cases in which death sentences were given despite the fact that the defense
attorneys were drunk, using drugs, racist against their own clients,
unprepared or outright unqualified to practice criminal law, or otherwise
incompetent (Bright 1997a, 1997b). In several cases, the defense attorney
slept during the trial -- giving a new meaning to the term "dream team"
(Bright 1997b:790, 830). State governments are increasingly appointing
attorneys in capital cases who submit the lowest bids; typically, attorneys
are compensated at less than the minimum wage (Bright 1997b:816-21). As a
result, those sentenced to death are often distinguishable from other
defendants convicted of murder not on the basis of the heinousness of the
crime, but instead on the basis of the quality of their defense attorneys.
A possible remedy for these failures at trial is executive
clemency. Executive clemency can be used not only to remove bias and
arbitrariness, but also to correct mistakes (e.g., when doubts exist about
the prisoner's guilt, or when previously unknown or under-weighted
mitigation -- such as evidence of mental illness or retardation --
emerges), or to reward rehabilitation. Again, social science research in
this area suggests the ineffectiveness of executive clemency in achieving
these goals. Clemency today is rarely granted, especially compared to the
years before the 1972 Furman decision (Bedau 1990-91). Since 1972, only 48
death sentences (as of 10-20-02) in American jurisdictions have been were
commuted to prison terms for humanitarian reasons through power of
executive clemency (for descriptions of 29 of these, see Radelet & Zsembik
1993). Of these, only six were granted on grounds of "equity."
Public opinion on the death penalty shows that while most
Americans recognize the problems of race and class bias, they do not view
such discrimination as a reason to oppose the death penalty. In the 1999
Gallup Poll, for example, 65% of the respondents agreed that a poor person
is more likely than a person of average to above average income to receive
the death penalty for the same crime (Gillespie 1999). Half the
respondents believed that black defendants are more likely than whites to
receive a death sentence for the same crime (which really isn't true).
A fourth way in which death penalty arguments have changed in the
past 25 years involves the issue of its fiscal costs. Two decades ago,
some citizens and political leaders supported the death penalty as a way of
avoiding the financial burdens of housing inmates for life or long prison
terms. The 2001 Gallup Poll found that 20% of those supporting the death
penalty cited the high fiscal costs of imprisonment as a reason for their
positions (Jones 2001). This is not an issue on which well-intentioned
people disagree; this is an issue on which the death penalty supporters are
flat-out wrong. As more and more people learn about the high fiscal costs
of the death penalty in the next few years, we can expect further declines
in death penalty support.
Research over the past 25 years has firmly established that a
modern death penalty system costs several times more than an alternative
system in which the maximum criminal punishment is life imprisonment
without parole. This research has been conducted in different states with
different data sets by newspapers, court and legislatures, and academics
(see reviews in Bohm 1998, Dieter 1997, Spangenberg & Walsh
1989). Estimates by the Miami Herald are typical: $3.2 million for every
electrocution versus $600,000 for life imprisonment (von Drehle
1988). These cost figures for capital punishment include not only expenses
for those cases that end in execution, but also the many more cases in
which the death penalty is sought that never end with a death sentence, and
cases in which a death sentence is pronounced but never carried out. They
also include the costs both for trials and for the lengthy appeals that are
necessary before an execution can be authorized. Consequently, the cost
issue today has become an anti-death penalty argument. Absent the death
penalty, states would have more resources to devote to the ends the death
penalty is allegedly designed to pursue, such as reducing high rates of
criminal violence or rendering effective aid to families of homicide victims.
MISCARRIAGES OF JUSTICE
Death penalty arguments are changing in a fifth way: death penalty
retentionists now admit that as long as we use the death penalty, innocent
defendants will occasionally be executed. Until a decade ago, the
pro-death penalty literature took the position that such blunders were rare
historical oddities and could never be committed in modern times. Today,
thanks in part to DNA, the argument is not over the existence or even the
inevitability of such errors, but whether the alleged benefits of the death
penalty outweigh these uncontested liabilities. Several studies conducted
over the last two decades have documented the problem of erroneous
convictions in homicide cases (Radelet et al. 1992; Scheck et al.
2000). Since 1970 there have been 102 people released from death rows in
the U.S. because of innocence.
The cases of those wrongly sentenced to death and who were totally
uninvolved in the crime constitute only one type of miscarriage of
justice. Another (and more frequent) blunder arises in the cases of the
condemned who, with a more perfect justice system, would have been
convicted of second degree murder or manslaughter, making them innocent of
first degree murder. (Dobbert)
In other cases, death row inmates have indeed killed someone, but,
again, a more perfect system for deciding who should be convicted and who
should die would have found these defendants not guilty because of insanity
or self-defense, or because the killing was, in reality, an
accident. Examined in this way, the class of "wrongful convictions"
extends far beyond the group of those convicted who were legally and
factually innocent of the crime.
THE GROWING FOCUS ON RETRIBUTION
Thus far I have argued that in the last 25 years, debates over
deterrence, incapacitation, cost, fairness, and the inevitability of
executing the innocent have all been either neutralized or won by those who
stand opposed to the death penalty. But while death penalty advocates
increasingly acknowledge that these traditional justifications are growing
less persuasive, in their place we have witnessed the ascendancy of what
has become the most important contemporary pro-death penalty argument:
retribution. Here one argues that justice requires the death
penalty. Those who commit the most premeditated or heinous murders should
be executed simply on the grounds that they deserve it (Berns 1979, van den
Haag 1997, 1998). Life without parole, according to this view, is simply
insufficient punishment for those who commit the most heinous and
Retributive arguments are often made in the name of families of
homicide victims, who are depicted as "needing" or otherwise benefitting
from the retributive satisfaction that the death penalty promises. Perhaps
the question most frequently posed to death penalty opponents during
debates is "How would you feel if your closest loved one was brutally
Those who oppose capital punishment can reasonably respond by
pointing out that the death penalty offers much less to families of
homicide victims than it first appears. For example, by diverting vast
resources into death penalty cases -- a small proportion of all homicide
cases -- the state has fewer resources for families of non-capital homicide
victims and for more effective assistance for families of all homicide
victims. Or, one could argue that the death penalty hurts families of
homicide victims in cases in which the killer is not sentenced to death,
since the prison sentence risks making them feel like their loved one's
death was not "worth" the life of the killer. Or, one could argue that the
death penalty serves to keep the case open for many years before the
execution actually occurs, often through resentences or retrials,
continuously preventing the wounds of the family of the victim from
healing. Death penalty opponents can also point to Timothy McVeigh and
scores of other death row inmates who have given up their appeals and asked
to be executed rather than serve long terms of imprisonment. Those who
love retributive punishments have yet to deal with the evidence that life
imprisonment without parole can be even worse than execution.
Consider what would happen if bin Laden was arrested and we tried
to extradite him and keep him on death row for 15 years. Thornton chapter
in Bedau -- death penalty for terrorism. Shows the absurdity of the
Arguing that the most heinous murderers "deserve" to die does not
settle the question of whether our governments actually ought to spend the
resources to deliver the just deserts (Wolfgang 1996). Given
well-documented injustices in the application of the death penalty, we can
raise the issue of whether such a penalty can be applied in the name of
"justice." The question becomes not "Who deserves to die," but instead,
"Who deserves to kill?"
Unlike the arguments reviewed above, retribution is a
non-empirical justification and thus all but impossible to test with
empirical data. After all, there are no mathematical formulae available or
on the horizon that can tell us precisely (or even roughly) how much of a
given punishment a murderer -- or any other offender -- "deserves." In the
end, the calculation of how much punishment a criminal "deserves" becomes
more a moral and less a criminological issue.
To the extent that the death penalty is justified on moral
(retributive) grounds, it is paradoxical that the overwhelming majority of
what can be called the "moral leadership" in the U.S. already stands
opposed to the death penalty. Leaders of Catholic, most Protestant, and
Jewish denominations are strongly opposed to the death penalty, and most
formal religious organizations in the U.S. have endorsed statements in
favor of abolition (American Friends Service Committee 1998). In the words
of Father Robert Drinan, a Jesuit priest and former member of Congress,
"The amazing convergence of opinion on the death penalty among America's
religious organizations is probably stronger, deeper, and broader than the
consensus on any other topic in the religious community in America" (Drinan
1991:107). Consequently, no longer are Old Testament religious arguments
in favor of the death penalty widely used or heard. Conservative
evangelist Pat Robertson is among those who have called for a moratorium on
executions. READ ONION.
There is also evidence that the general public recognizes some
limits to retributive punishments. In 1991, the Gallup Poll asked
respondents which method of execution they preferred. After all, if one
were really retributive, and if people like Oklahoma City bomber Timothy
McVeigh really got what they "deserved," the preferred method might be slow
boiling or public crucifixion. Yet, 66% of the respondents favored lethal
injection, an increase of ten points from six years earlier (Gallup &
Newport 1991:42). This preference likely reflects, at least in part, the
belief that inmates might suffer too much in electric chairs and gas
chambers. In contrast, lethal injection offers an ostensibly less painful
death. In fact, death penalty opponents often argue against the use of
lethal injection on the grounds that this method makes executions more
palatable to the public by creating the appearance that the inmate is
simply being put to sleep (Schwarzschild 1982). This concern with finding
ways to reduce the prisoner's suffering is inconsistent with the idea that
we need the death penalty on the grounds of retributive justice.
TRENDS TOWARD ABOLITION
The above changes in death penalty debates come at a time when
there is a relatively rapid worldwide movement away from the death
penalty. Today, executions are concentrated in only a small handful of
countries; in 2001 some 90 percent of all known executions were carried out
in China, Iran, Saudi Arabia, and the U.S. Normally these are not
countries with whom the U.S. shares domestic policies.
Hugo Adam Bedau, the dean of American death penalty scholars, has
argued that the history of the death penalty in the U.S. over the past two
centuries is a history of its gradual retraction. Among specific changes
that mark the path toward the decline of the death penalty have been:
The end of public executions and of mandatory capital sentencing,
introduction of the concept of degrees of murder, development of appellate
review in capital cases, decline in annual executions, reduction in the
variety of capital statutes, experiments with complete abolition, even the
search for more humane ways to inflict death as a punishment ... (Bedau
In 1800 in England there were over 200 capital offenses, many of which
carried mandatory death sentences. Until 75 years ago public hangings in
the U.S. were widespread, and little concern was voiced when executions
were botched and the condemned inmate suffered a long and painful
death. Only in the past three decades have appeals in state and federal
courts become common in capital cases. With over 3,700 men and women
currently sentenced to death in the U.S., it is quite easy for those who
oppose the death penalty to preach doom and gloom. However, Bedau's
observations invite students of the death penalty to take a long-term
historical view. With such a lens, the outlook for abolition is more
By 1900, only three countries had abolished the death penalty for
all crimes; by 1978 (one year after Gilmore) the number had risen to
nineteen (Amnesty International 1999:16). But since then the number of
abolitionist countries has almost quadrupled. By the beginning of 2002, 74
countries had abolished the death penalty for all offenses, 15 more
retained it only for "exceptional" crimes (i.e., during wartime), and
twenty-two others had not hosted an execution in at least ten years
(Amnesty International 2000:22). In all, by the beginning of the 21st
century, 111 countries had abolished the death penalty either totally or in
The past two decades have seen an explosive growth in the
international human rights movement and in international treaties embodying
abolition. Today, all fifteen members of the European Union have abolished
the death penalty, and the Council of Europe, with 43 members, has made the
abolition of the death penalty and ratification of the European Convention
on Human Rights and its Sixth Protocol a condition of membership (Hood,
200?). With the last execution in France in 1977, all the counties in the
Council of Europe have abolished the death penalty. Most recently, in a
bid to join the European Union, in July 2002 Turkey abolished the death
penalty. This pressure and the desire to be part of the European community
has caused many of the former states of the Soviet Union to abolish the
death penalty. Russia, a country that was among the world's leaders in
executions in the early 1990s, announced in 1999 that it, too, was
abolishing the death penalty (Amnesty International 1999:16). Most
significantly, on June 25, 2001, the Parliamentary Assembly of the Council
of Europe called on the United States and Japan to abolish the death
penalty, stating that the formal "observer" status given to these two
countries in the Council of Europe's Parliamentary Association would be
revoked if there was no significant progress moving toward abolition by the
end of next year.
Just last year, there were several significant steps toward
abolishing the death penalty. In an extremely important decision, in early
2001 the Canadian Supreme Court issued a decision containing a scathing
attack on the death penalty in the U.S., holding that no one in Canada
facing the death penalty in the U.S would be extradited. In April 2001 the
death penalty was abolished in Chile, and in the same month all those under
death sentences in the Philippines had their sentences commuted to prison
terms. On June 7, Irish voters, with a 62 percent majority, voted to
support a constitutional ban on any law imposing the death penalty. In
August, the American Psychological Association called for an immediate
moratorium. On September 28, the legislature in Taiwan overhauled its
military criminal code, sharply narrowing the scope of the death
penalty. And just the other day, the Georgia Supreme Court put its state's
electric chair out of business. Since 1924, that chair was used to kill
349 blacks and 86 whites, and it had become, like the chain gang, a symbol
of all that is wrong with the criminal justice system. We are not going to
abolish the death penalty by getting rid of methods of killing one by one,
but clearly, in a comparatively short historical time span, more than half
of the countries in the world have abolished the death penalty, and the
momentum is unquestionably in the direction of total worldwide abolition.
We need to remind ourselves that it has been only 20 years that
Protocol Number 6 to the European Convention on Human Rights, calling for
the abolition of the death penalty in peacetime, was opened for signature
in 1982. And only 11 years ago -- 1989 -- the United Nations General
Assembly adopted the Second optional Protocol to the International Covenant
on Civil and Political Rights (ICCPR), Article 1 of which states, "No One
within the jurisdiction of a State party to the present Optional Protocol
shall be executed." 51 countries have so far have ratified or signed that
The United Nations continues to move toward a call for a worldwide
ban on executions (Schabas 1997). In April 2001, for the fifth year in a
row, the Geneva-based U.N. Commission on Human Rights passed a resolution
calling for a worldwide moratorium on death sentencing. The resolution
reaffirms an international ban on executions of those under 18, those who
are pregnant, and those who are suffering from mental illness. The
resolution also calls for non-death penalty nations to refuse to extradite
suspects to countries that continue to use executions as a form of
punishment. A similar call made last December by Secretary General Kofi
Annan. "The forfeiture of life is too absolute, too irreversible," he
said, "for one human being to inflict it on another, even when backed by
legal process. And I believe that future generations, throughout the
world, will come to agree" (Washington Post, 12/19/00).
The above is not meant to suggest the absence of countries that
continue to swim against the tide of worldwide abolition. Internationally,
the death penalty is slowly expanding in a few countries, such as Yemen,
the English-speaking Caribbean, and Taiwan (Amnesty International
1999). Few would disagree with the prediction that the next few years will
be busy ones for America's executioners. And the United States is crucial
to the success of the abolition movement world-wide, "because here is a
country that defines itself as the archetypal liberal democracy and
guardian of human rights and yet rejects the human rights arguments on the
death penalty as defined by any agency other than its own Supreme Court"
(Hood, 200?: 343). And within the U.S., we in Colorado, a state that once
banned the death penalty and that has only six inmates on death row, are in
a good position to take some leadership in jumping on the abolitionist
train. We need to aggressively press forward.
In addition to international pressures, other calls for moratoria
on death sentencing are also being made. In 1997, the
normally-conservative House of Delegates of the American Bar Association
called for a moratorium on the death penalty. In May 1999, the Nebraska
legislature passed a resolution calling for a two-year moratorium on
executions because of questions of equity in the administration of its
state's death penalty. This resolution was vetoed by the governor, but
later the legislature unanimously overrode the governor's veto of that part
of the legislation that allocated some $165,000 to study the issue (Tysyer
1999). Last month that study was released, and it contained strong
evidence of regional and racial disparities in death sentencing in
Nebraska. In January 2000 the Governor of Illinois imposed a moratorium on
executions in that state. Our study -- reasons for hope. Scores of cities
and counties in the U.S. have passed similar resolutions. Presidential
Politics. Finally, in April 2001, a Gallup Poll found that 54% of all
Americans supported an immediate moratorium on executions. We are
beginning to win.
One byproduct of the moratorium movement has been that since the
victory in June in Atkins v. Virginia. We can also point with some
optimism to Congress, where a bill called "The Innocence Protection Act"
now has the co-sponsorship of 1/3 of the Senate and over half of the U.S.
House. This Act will provide DNA testing and set minimum standards for
court-appointed defense lawyers.
Finally, let me mention my former home state of Florida. There,
rates of new death sentences have dropped to about 20 a year since 1995,
about 40 percent of the rates seen in the two decades before. These rates
are still outrageous given any contemporary standard of human rights, but
they represent a drop of over 40 percent in rates of death sentencing in
the last five years. Overrides.
The goal of my remarks has been to present a brief overview of
recent scholarship on the death penalty. I organized this discussion by
examining six issues that have traditionally framed death penalty debates,
paying particular attention to the social scientific literature that has
evaluated each one. Changes in the discourse of capital punishment have
evolved partly in response to the findings of this research. I conclude
with three observations derived from the foregoing discussion.
First, the past two dozen years have witnessed significant changes
in the nature of death penalty debates. Future: conservative
arguments fiscal austerity, moral authority, and small government.
Second, at the same time as American discourse on the death
penalty is changing, there is an accelerating worldwide decline in the
acceptance of capital punishment. Indeed, the trend toward the worldwide
abolition of the death penalty is inexorable.
Finally, our review sends a positive message to criminologists and
other social scientists who often feel as if their research is ignored by
the public and by policy makers. Our review suggests that changes in the
nature of death penalty debates are a direct consequence of social
scientists' close and careful examination of the various dimensions of
these arguments. Scholars have examined questions of deterrence, race,
cost, methods of execution, innocence, juror decision-making, and the
political and social environments in which death penalty legislation has
emerged (Mello 1999, Tabak 1999). Clearly, this is one area of public
policy where social science research is making a slow but perceptible
impact. There is no question that by taking a broad historical outlook,
those of us who stand opposed to the death penalty are on the winning side.
American Friends Service Committee, 1998. The Death Penalty: The Religious
Community Calls for Abolition, Philadelphia: American Friends Service
Amnesty International, 1999. Amnesty International Report 1999, London:
Amnesty International Publications.
Amnesty International, 2000. Amnesty International Report 2000, London:
Amnesty International Publications.
Amnesty International, 2001. Amnesty International Report 2001, London:
Amnesty International Publications.
Bailey, William C., and Peterson, Ruth D., Murder, Capital Punishment, and
Deterrence: A Review of the Literature, in Bedau, Hugo Adam (ed.), 1997.
The Death Penalty in America: Current Controversies, New York: Oxford
University Press, pp. 135-61.
Baldus, David C., and Woodworth, George, Race Discrimination and the Death
Penalty: An Empirical and Legal Overview, in Acker, James R., Bohm, Robert
M., and Lanier, Charles S. (eds.), 1998. America's Experiment With Capital
Punishment, Durham, N.C.: Carolina Academic Press.
Baldus, David C., Woodworth, George, and Pulaski, Charles A. Jr., 1990.
Equal Justice and the Death Penalty: A Legal and Empirical Analysis.
Boston: Northeastern University Press.
Baldus, David C., Woodworth, George, Zuckerman, David, Weiner, Neil A.,
Broffitt, Barbara, Racial Discrimination and the Death Penalty in the
Post-Furman Era: An Empirical and Legal Overview, With Recent Findings from
Philadelphia, Cornell Law Review (83) 1998, pp. 1638-770.
Bedau, Hugo Adam, Deterrence: Problems, Doctrines, and Evidence. In Bedau,
Hugo Adam (ed.), 1982a. The Death Penalty in America, Third Edition, New
York: Oxford University Press, pp. 95-103.
Bedau, Hugo Adam, Is the Death Penalty "Cruel and Unusual" Punishment?, in
Bedau, Hugo Adam (ed.), 1982b. The Death Penalty in America, Third Edition,
New York: Oxford University Press, pp. 247-53.
Bedau, Hugo Adam, The Decline of Executive Clemency in Capital Cases, New
York University Review of Law & Social Change (18) 1990-91, pp. 255-72.
Bedau, Hugo Adam, Prison Homicides, Recidivist Murder, and Life
Imprisonment, in Bedau, Hugo Adam (ed), 1997. The Death Penalty in America:
Current Controversies, New York: Oxford University Press, pp. 176-82.
Bedau, Hugo Adam, and Radelet Michael L., Miscarriages of Justice in
Potentially Capital Cases, Stanford Law Review (40) 1987, pp. 21-179.
Berns, Walter, 1979. For Capital Punishment: Crime and the Morality of the
Death Penalty. New York: Basic Books.
Black, Charles L., 1981. Capital Punishment: The Inevitability of Caprice
and Mistake, Second Edition. N.Y.: W.W. Norton.
Bohm, Robert M., The Economic Costs of Capital Punishment: Past, Present,
and Future, in Acker, James R., Bohm, Robert M., and Lanier, Charles S.
(eds.), 1998. America's Experiment With Capital Punishment, Durham, N.C.:
Carolina Academic Press, pp. 437-58.
Bohm, Robert M., 1999. Deathquest: An Introduction to the Theory and
Practice of Capital Punishment in the United States. Cincinnati: Anderson
Bowers, William J., Pierce, Glenn L., and McDevitt, Jack F., 1984. Legal
Homicide: Death As Punishment in America, 1864-1982. Boston: Northeastern
Bright, Stephen B., Counsel for the Poor: The Death Sentence Not For the
Worst Crime But For the Worst Lawyer, in Bedau, Hugo adam (ed.), 1997a. The
Death Penalty in America: Current Controversies, New York: Oxford
University Press, pp. 275-309.
Bright, Stephen B., Neither Equal Nor Just: The Rationing and Denial of
Legal Services to the Poor When Life and Liberty Are at Stake, Annual
Survey of American Law (1997) 1997b, pp. 783-836.
Death Penalty Information Center, 2001. <http://www.deathpenaltyinfo.org
Dieter, Richard C., Millions Misspent: What Politicians Don't Say About the
High Costs of the Death Penalty, in Bedau, Hugo Adam (ed.), 1997. The Death
Penalty in America: Current Controversies, New York: Oxford University
Press, pp. 401-10.
Drinan, Robert, 1991. The Fractured Dream: America's Divisive Moral
Choices. New York: Crossroad Publishing Co.
Ehrlich, Isaac, The Deterrent Effect of Capital Punishment: A Question of
Life and Death. American Economic Review (65) 1975, pp. 397417.
Ellsworth, Phoebe C., and Gross, Samuel R., Hardening of the Attitudes:
Americans' Views on the Death Penalty, Journal Social Issues (50) 1995, pp.
Fox, James A., Radelet Michael L., and Bonsteel, Julie L., Death Penalty
Opinion in the Post-Furman Years, New York University Review of Law &
Social Change (18) 1990-91, pp. 499-528.
Gallup, Alex, and Newport Frank, Death Penalty Support Remains Strong, The
Gallup Poll Monthly, No. 309 (June 1991), pp. 40-45.
Gillespie M., 1999. Public Opinion Supports Death Penalty. http://www/gallup.com/POLL_ARCHIVES/990219b.htm
Gross, Samuel R., The Risks of Death: Why Erroneous Convictions Are Common
in Capital Cases, Buffalo Law Review (44) 1996, pp. 469-500.
Gross, Samuel R., Update: American Public Opinion on the Death Penalty --
It's Getting Personal, Cornell Law Review (83) 1998, pp. 1448-75.
Gross, Samuel, and Mauro, Robert, 1989. Death and Discrimination: Racial
Disparities in Capital Sentencing. Boston: Northeastern University Press.
Hood, Roger, 1996. The Death Penalty: A World Wide Perspective, rev. ed.
Oxford: Oxford University Press.
Jones, Jeffrey M., 2001. Two-Thirds of Americans Support the Death Penalty.
Klein, Lawrence R., Forst, Brian, and Filatov, Victor, The Deterrent Effect
of Capital Punishment: An Assessment of the Estimates, in Blumstein, A.,
Cohen, J., and Nagin D. (eds.), 1978. Deterrence and Incapacitation:
Estimating the Effects of Criminal Sanctions on Crime Rates, Washington,
D.C.: National Academic of Sciences, pp. 336-60.
Marquart, James W., and Sorensen Jonathan R., A National Study of the
Furman-Commuted Inmates: Assessing the Threat to Society From Capital
Offenders, Loyola of Los Angeles Law Review (23) 1989, pp. 101-20.
Mello, Michael, The Real Capital Punishment: The (Shotgun) Marriage Between
Social Science and Litigation, and the Inviting Footnote in Brown v. Texas,
Criminal Law Bulletin (35) 1999, pp. 107-26.
Paternoster, Raymond, 1991. Capital Punishment in America, New York:
Peterson, Ruth D., and Bailey William C., Is Capital Punishment An
Effective Deterrent for Murder? An Examination of Social Science Research,
in Acker, James R., Bohm, Robert M., and Lanier, Charles S. (eds.), 1998.
America's Experiment With Capital Punishment, Durham, N.C.: Carolina
Academic Press, pp. 157-82.
Radelet, Michael L., and Akers, Ronald L., Deterrence and the Death
Penalty: The Views of the Experts, Journal of Criminal Law & Criminology
(87) 1996, pp. 1-16.
Radelet, Michael L., and Pierce, Glenn L., Choosing Those Who Will Die:
Race and the Death Penalty in Florida, Florida Law Review (43) 1991, pp. 1-34.
Radelet Michael L., and Zsembik, Barbara A., Executive Clemency in
Post-Furman Capital Cases, University of Richmond Law Review (27) 1993, pp.
Radelet, Michael L., Bedau, Hugo Adam, and Putnam, Constance E., 1992. In
Spite of Innocence. Boston: Northeastern University Press.
Radelet, Michael L., Lofquist, William S., and Bedau, Hugo Adam, Prisoners
Released from Death Rows Since 1970 Because of Doubts About Their Guilt,
Cooley Law Review (13) 1996, pp. 907-66.
Schabas, William A., 1997. The Abolition of the Death Penalty in
International Law, Second Edition. Cambridge: Cambridge University Press.
Schwarzschild, Henry, Homicide By Injection. N.Y. Times, Dec. 23, 1982.
Scheck, Barry, Neufield, Peter, and Dwyer, Jim, 2000. Actual Innocence. New
Spangenberg, Robert L., and Walsh, Elizabeth R., Capital Punishment Or Life
Imprisonment: Some Cost Considerations, Loyola of Los Angeles Law Review
(23) 1989, pp. 45-58.
Stanton, James M., Murderers on Parole, Crime & Delinquency (15) 1969, pp.
Tabak, Ronald, How Empirical Studies Can Affect Positively the Politics of
the Death Penalty, Cornell Law Review (83) 1999, pp. 1431-47.
van den Haag, Ernest, The Death Penalty Once More, in Bedau, Hugo Adam
(ed.), 1997. The Death Penalty in America: Current Controversies, New York:
Oxford University Press, pp. 445-56.
von Drehle, David, Capital Punishment in Paralysis, Miami Herald, July 10,
Wolfgang, Marvin E., We Do Not Deserve To Kill, Cooley Law Review (13)
1996, pp. 977-90.
Wolfson, Wendy, The Deterrent Effect of the Death Penalty Upon Prison
Murder, in Bedau, Hugo Adam (ed.), 1982. The Death Penalty in America,
Third Edition, New York: Oxford University Press, pp. 159-80.
Wright, Julian H., Jr., Life-Without-Parole: An Alternative to Death or Not
Much of a Life At All? Vanderbilt Law Review (43) 1990, pp. 529-68.
Zimring, Franklin E., and Hawkins Gordon, 1986. Capital Punishment and the
American Agenda. Cambridge: Cambridge University Press.