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Towards Abolition of the Death Penalty

by Michael L. Radelet, Ph.D. Saturday, Dec. 14, 2002 at 5:12 PM

Professor Michael Radelet from the University of Colorado-Boulder presented the keynote address at the IADP event. Professor Radelet is co author of In Spite of Innocence and has been a consultant to the Illinois Governor's Commission on Death Penalty Moratorium, among many other contributions to the movement to abolish the death penalty.

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.



INTRODUCTION

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.



DETERRENCE

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).

Politeness

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.



INCAPACITATION

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

prison terms.

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

business.

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).



COST

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: .2 million for every

electrocution versus 0,000 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

premeditated murders.

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

murdered?"

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

retributive argument.

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

1982:3-4).

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

optimistic.

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

practice.

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

Protocol.

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 5,000 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.



CONCLUSION

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.



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