From Applied Ethics: A Sourcebook


James Fieser






1. Classic Philosophers on the Death Penalty—Beccaria, Mill, Kant

2. Supreme Court Cases on the Death Penalty — Furman v. Georgia; Gregg v. Georgia; Coker v. Georgia; McCleskey v. Kemp; Payne v. Tennessee; Atkins v. Virginia; Roper v. Simmons

3. Executing the Innocent: Pro and Contra — George Ryan and Strom Thurmond

4. Against the Death Penalty—Stephen B. Bright

5. Racial Bias and Executing the Innocent: No Real Problem—John McAdams





Beccaria, Mill, Kant


Born in Milan, Italy, Cesare Beccaria (1738–1794) is best remembered for his influential work On Crimes and Punishment (1764), which critiqued the ineffective and often brutal criminal justice system of his time. He offers one of the first sustained critiques of the death penalty. His principal argument is that capital punishment does not deter criminals, and, instead, long term imprisonment makes a more lasting impression on the minds of spectators. Further, the death penalty has harmful effects on society by reducing people’s sensitivity to human suffering. Beccaria recognizes that capital punishment is in fact practiced everywhere and it may be hard to break that custom; nevertheless, he hopes that the collective voice of critics of the death penalty scattered around the world will influence political rulers. Born in London, England, John Stuart Mill (1806–1873) was a member of Britain’s Parliament and among that country’s most influential philosophers of the 19th century. In the second selection below, from a speech given before Parliament on April 21, 1868, he defends the death penalty in opposition to a proposed bill to ban capital punishment. The death penalty, he argues, is more humane than imprisonment and that it improves society because of its deterrence value. Death penalty critics argue that it is not effective in cases such as theft since criminals expected judges and jury members to show mercy. Mill concedes that if this starts to happen in cases such as theft, then the death penalty should be revoked. Critics also charge that innocent people may be accidentally executed. Mill responds that such cases are so tragic that it should encourage judicial systems to take the appropriate measures to ensure that it never actually occurs.




We Don’t Give Up our Right to Life

The useless profusion of punishments, which has never made people better, induces me to inquire whether punishment by death is really just or useful in a well-governed state. What right, I ask, do people have to cut the throats of their fellow-creatures? Certainly not the right on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will which is the aggregate of that of each individual. Did anyone ever give to others the right of taking away his life? Each person gives only the smallest portion of his liberty over to the good of the public. Is it possible that this small portion contains the greatest good of all, namely, that person’s life? If this were so, how can it be reconciled to the principle which tells us that a person has no right to kill himself? Certainly he must have this if he could give it away to another.


Only One Justification of Capital Punishment

But the punishment of death is not authorized by any right, for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity.

            The death of a citizen cannot be necessary except in one case. This is when he is deprived of his liberty and yet still has enough power and connections to endanger the security of the nation, that is, when his existence may produce a dangerous revolution in the established form of government. But even in this case, it is only necessary when a nation is on the verge of recovering or losing its liberty, or, in times of absolute anarchy, when the disorders themselves hold the place of laws. But this is not so in a reign of peace, or in a form of government approved by the united wishes of the nation, or in a state well fortified from enemies without, and supported by strength within (and, even more effectively, by popular opinion), or where all power is lodged in the hands of the true sovereign, or where riches can purchase pleasures and not authority. In these there can be no necessity for taking away the life of a subject.


Capital Punishment Does Not Deter

Consider whether the experience of all ages is not sufficient to prove that the punishment of death has never prevented determined people from injuring society. If the example of the Romans; if twenty years reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more memorable than many conquests bought with blood. If, I say, all this is not sufficient to persuade people, who always suspect the voice of reason and who chose rather to be led by authority, then let us consult human nature in proof of my assertion.

            It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance. For our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent, but momentary, impulse. The power of habit is universal over every sentient being. It is by habit that we learn to speak, to walk, and to satisfy our necessities. So too the ideas of morality are stamped on our minds by repeated impressions. The death of a criminal is a terrible but momentary spectacle, and therefore a less effective method of deterring others, than the continued example of a person deprived of his liberty and condemned (as a beast of burden) to repair by his labor the injury he has done to society. “If I commit such a crime,” says the spectator to himself, “I shall be reduced to that miserable condition for the rest of my life.” This is a much more powerful preventive than the fear of death, which people always see in distant obscurity.

            The terrors of death make so slight an impression that it does not have enough force to withstand our natural human forgetfulness, even in the most essential things and when assisted by the passions. Violent impressions surprise us, but their effect is momentary. They are fit to produce those revolutions which instantly transform a common person into a Lacedemonian or a Persian. But in a free and quiet government, such impressions should be frequent rather than strong.

            To the masses, the execution of a criminal is entertainment, and in some it excites compassion mixed with indignation. Both of these sentiments fill the mind with a greater terror than the needed terror which the laws try to inspire. But in the contemplation of continued suffering, terror is the only (or at least the predominant) sensation. The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.


Advantages of Perpetual Slavery

For a punishment to be just, it should have only that degree of severity that is sufficient to deter others. Now there is no person, with the least reflection, who would jeopardize the total and continual loss of his liberty for the sake of the greatest advantages he could possibly obtain resulting from a crime. Consequently, perpetual slavery contains all that is necessary to deter the most hardened and determined, as much as the punishment of death. In fact, I say it has more. There are many who can look upon death with courage and steadfastness. Some approach it through fanaticism, and others through vanity that attends us even to the grave. Others approach it from a desperate resolution either to get rid of their misery, or cease to live. But fanaticism and vanity abandon the criminal in slavery, in chains and fetters, in an iron cage. And despair seems rather the beginning than the end of their misery. By collecting itself and uniting all its force, the mind can momentarily repel the attack of grief. But its strongest efforts are insufficient to resist perpetual wretchedness.

            In all nations where death is used as a punishment, every example supposes a new crime committed. However, in perpetual slavery, every criminal affords a frequent and lasting example. And if it is necessary for people to frequently be witnesses of the power of the laws, then criminals should frequently be put to death. But this supposes a frequency of crimes, and for that reason this punishment will cease to have its effect, and thus it becomes useful and useless at the same time.

            Suppose you say that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer that if all the miserable moments in the life of a slave were collected into one point, it would be a more cruel punishment than any other. But these are scattered through his whole life, whereas the pain of death exerts all its force in a moment. There is also another advantage in the punishment of slavery, which is that it is more terrible to the spectator than to the sufferer himself. For the spectator considers the sum of all his wretched moments, whereas the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations, of which the spectators are ignorant (judge by their own sensibility of what passes in a mind, by habit grown callous to misfortune).


Perpetual Slavery combats Religious Repentance

Let us, for a moment, note the reasoning of a thief or assassin, who is deterred from violating the laws [because of execution] by the gibbet or the wheel. (I am aware that developing the feelings of one’s own heart is an art which education only can teach; nevertheless, although a villain may not be able to give a clear account of his principles, they still influence his conduct.) He reasons as follows: “What are these laws that I am obligated to respect which make so great a difference between me and a rich man? He refuses me the pocket change I ask of him, and excuses himself by instructing me to have recourse to labor, with which he is unacquainted. Who made these laws? The rich and the great, who never stooped to visit the miserable huts of the poor, who have never seen a poor person dividing a piece of moldy bread, surrounded by the cries of his starving children and the tears of his wife. Let us break those ties that are fatal to the greatest part of humankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I will live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short. And for an hour of grief I will enjoy years of pleasure and liberty. As king of a small number of people who are as determined as myself, I will correct the mistakes of fortune, and I will see those tyrants grow pale and tremble at the sight of him, whom with insulting pride, they would not even rank with their dogs and horses.”

            Religion then presents itself to the mind of this lawless villain by promising him almost a certainty of eternal happiness upon the easy terms of repentance. This contributes much to lessen the horror of the last scene of the tragedy.

            Consider now the villain who foresees that he will pass many years, even his whole life, in pain and slavery. He will be a slave to those laws by which he was protected, in sight of his fellow citizens with whom he lives in freedom and society. He thus makes a useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he shall enjoy the fruits of his crime. The example of those wretches continually before his eyes makes a much greater impression on him than a punishment, which instead of correcting, makes him more hardened.


Harmful Effects of the Death Penalty

The punishment of death is harmful to society from the example of cruelty it presents. If the passions, or the necessity of war, have taught people to shed the blood of their fellow-creatures, the laws, which are intended to moderate the savagery of humankind, should not increase it by examples of cruelty, which is even more horrible since punishment is usually attended with formal ceremony. Is it not absurd that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural feelings of every person concerning the punishment of death? We may read them in the contempt and indignation with which everyone looks on the executioner, who is nevertheless an innocent executor of the public will. In this light, the executioner is a good citizen, who contributes to the advantage of society and is the instrument of the general security within, just as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of humankind permanent, even though contrary to reason? It is that in a secret corner of the mind in which the original impressions of nature are still preserved, people discover a sentiment which tells them that their lives are not lawfully in the power of anyone, except only that necessity which with its iron scepter rules the universe.

            What must people [i.e., potential criminals] think when they see wise magistrates and grave ministers of justice, with indifference and tranquility, dragging a criminal to death? Or consider, while a wretch trembles with agony expecting the fatal stroke, the judge who has condemned him leaves his tribunal to enjoy the comforts and pleasures of life, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority? They will say, “Ah! Those cruel formalities of justice are a cloak to tyranny. They are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us as a horrible crime, we see practiced by them without repugnance, or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him, who not expecting it, escapes almost all the pain.” Such is the fatal, though absurd reasoning of people who are disposed to commit crimes, on whom the abuse of religion has more influence than religion itself.


Overcoming the Tradition of the Death Penalty

If it is objected that almost all nations in all ages have punished certain crimes with death, I answer that the force of these examples disappears when opposed to truth, against which it is vain to offer further recommendation. The history of humanity is an immense sea of errors in which a few obscure truths may here and there be found.

            Consider that human sacrifices have also been common in almost all nations. That some societies only, either few in number, or for a very short time, abstained from the punishment of death, is in fact favorable to my argument. For such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived when truth will be the portion of the majority (as falsehood was previously).

            I am aware that the voice of one philosopher is too weak to be heard when surrounded by the uproar of a multitude, blindly influenced by custom. But there are a small number of sages, scattered around the earth, who will echo my views from the bottom of their hearts. And if these truths should happily force their way to the thrones of princes, let it be known to them that they come attended with the secret wishes of all humankind. And tell the sovereign who patronizes them with a gracious reception that his name will outshine the glory of conquerors, and that equal fame will elevate his peaceful trophies above those of a Titus, an Antoninus or a Trajan.

            How happy humankind would be if laws were now first formed, especially since we see benevolent monarchs on the thrones of Europe. They are friends to the virtues of peace and to the arts and sciences; they are fathers of their people and, though crowned, remain citizens. The increase of their authority augments the happiness of their subjects by destroying that transitional despotism which intercepts the prayers of the people to the throne. If these humane princes have allowed the old laws to continue, it is undoubtedly because they are deterred by the numberless obstacles, which oppose the subversion of errors established by the sanction of many ages. Accordingly, every wise citizen will wish for the increase of their authority.




The Humaneness and Deterrent Value of the Death Penalty

. . . I defend this penalty [of death], when confined to atrocious cases, on the very ground on which it is commonly attacked -- on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime. If, in our horror of inflicting death, we endeavor to devise some punishment for the living criminal which shall act on the human mind with a deterrent force at all comparable to that of death, we are driven to inflictions less severe indeed in appearance, and therefore less efficacious, but far more cruel in reality. Few, I think, would venture to propose, as a punishment for aggravated murder, less than imprisonment with hard labor for life; that is the fate to which a murderer would be consigned by the mercy which shrinks from putting him to death. But has it been sufficiently considered what sort of a mercy this is, and what kind of life it leaves to him? If, indeed, the punishment is not really inflicted -- if it becomes the sham which a few years ago such punishments were rapidly becoming -- then, indeed, its adoption would be almost tantamount to giving up the attempt to repress murder altogether.

            But if it really is what it professes to be, and if it is realized in all its rigor by the popular imagination, as it very probably would not be, but as it must be if it is to be efficacious, it will be so shocking that when the memory of the crime is no longer fresh, there will be almost insuperable difficulty in executing it. What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations or rewards -- debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement of diet? Yet even such a lot as this, because there is no one moment at which the suffering is of terrifying intensity, and, above all, because it does not contain the element, so imposing to the imagination, of the unknown, is universally reputed a milder punishment than death -- stands in all codes as a mitigation of the capital penalty, and is thankfully accepted as such.

            For it is characteristic of all punishments which depend on duration for their efficacy -- all, therefore, which are not corporal or pecuniary -- that they are more rigorous than they seem; while it is, on the contrary, one of the strongest recommendations a punishment can have, that it should seem more rigorous than it is; for its practical power depends far less on what it is than on what it seems. There is not, I should think, any human infliction which makes an impression on the imagination so entirely out of proportion to its real severity as the punishment of death. The punishment must be mild indeed which does not add more to the sum of human misery than is necessarily or directly added by the execution of a criminal. As my hon. Friend the Member for Northampton [Mr.Gilpin, the bill’s sponsor] has himself remarked, the most that human laws can do to anyone in the matter of death is to hasten it; the man would have died at any rate; not so very much later, and on the average, I fear, with a considerably greater amount of bodily suffering. Society is asked, then, to denude itself of an instrument of punishment which, in the grave cases to which alone it is suitable, effects its purposes at a less cost of human suffering than any other; which, while it inspires more terror, is less cruel in actual fact than any punishment that we should think of substituting for it.


Replies to Arguments against Capital Punishment

My hon. Friend says that it does not inspire terror, and that experience proves it to be a failure. But the influence of a punishment is not to be estimated by its effect on hardened criminals. Those whose habitual way of life keeps them, so to speak, at all times within sight of the gallows, do grow to care less about it; as, to compare good things with bad, an old soldier is not much affected by the chance of dying in battle. I can afford to admit all that is often said about the indifference of professional criminals to the gallows. Though of that indifference one-third is probably bravado and another third confidence that they shall have the luck to escape, it is quite probable that the remaining third is real. But the efficacy of a punishment which acts principally through the imagination, is chiefly to be measured by the impression it makes on those who are still innocent; by the horror with which it surrounds the first promptings of guilt; the restraining influence it exercises over the beginning of the thought which, if indulged, would become a temptation; the check which it exerts over the graded declension towards the state--never suddenly attained--in which crime no longer revolts, and punishment no longer terrifies. As for what is called the failure of death punishment, who is able to judge of that?

            We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred, or how many human beings it has saved who would have lived to be murderers if that awful association had not been thrown round the idea of murder from their earliest infancy? Let us not forget that the most imposing fact loses its power over the imagination if it is made too cheap. When a punishment fit only for the most atrocious crimes is lavished on small offences until human feeling recoils from it, then, indeed, it ceases to intimidate, because it ceases to be believed in. The failure of capital punishment in cases of theft is easily accounted for; the thief did not believe that it would be inflicted. He had learnt by experience that jurors would perjure themselves rather than find him guilty; that Judges would seize any excuse for not sentencing him to death, or for recommending him to mercy; and that if neither jurors nor Judges were merciful, there were still hopes from an authority above both. When things had come to this pass it was high time to give up the vain attempt. When it is impossible to inflict a punishment, or when its infliction becomes a public scandal, the idle threat cannot too soon disappear from the statute book. And in the case of the host of offences which were formerly capital, I heartily rejoice that it did become impracticable to execute the law.

            If the same state of public feeling comes to exist in the case of murder; if the time comes when jurors refuse to find a murderer guilty; when Judges will not sentence him to death, or will recommend him to mercy; or when, if juries and Judges do not flinch from their duty, Home Secretaries, under pressure of deputations and memorials, shrink from theirs, and the threat becomes, as it became in the other cases, a mere brutum fulmen; then, indeed, it may become necessary to do in this case what has been done in those--to abrogate the penalty. That time may come--my hon. Friend thinks that it has nearly come. . . .

             Much has been said of the sanctity of human life, and the absurdity of supposing that we can teach respect for life by ourselves destroying it. But I am surprised at the employment of this argument, for it is one which might be brought against any punishment whatever. It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing. And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this I should answer--all of us would answer--that to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice. Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall.


Regarding Accidental Executions

There is one argument against capital punishment, even in extreme cases, which I cannot deny to have weight -- on which my hon. Friend justly laid great stress, and which never can be entirely got rid of. It is this -- that if by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible. This would be indeed a serious objection if these miserable mistakes -- among the most tragical occurrences in the whole round of human affairs -- could not be made extremely rare. The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted. And this probably is the reason why the objection to an irreparable punishment began (as I believe it did) earlier, and is more intense and more widely diffused, in some parts of the Continent of Europe than it is here. There are on the Continent great and enlightened countries, in which the criminal procedure is not so favorable to innocence, does not afford the same security against erroneous conviction, as it does among us; countries where the Courts of Justice seem to think they fail in their duty unless they find somebody guilty; and in their really laudable desire to hunt guilt from its hiding places, expose themselves to a serious danger of condemning the innocent.

            If our own procedure and Courts of Justice afforded ground for similar apprehension, I should be the first to join in withdrawing the power of inflicting irreparable punishment from such tribunals. But we all know that the defects of our procedure are the very opposite. Our rules of evidence are even too favorable to the prisoner; and juries and Judges carry out the maxim, “It is better that ten guilty should escape than that one innocent person should suffer,” not only to the letter, but beyond the letter. Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner’s innocence. No human judgment is infallible; such sad cases as my hon. Friend cited will sometimes occur; but in so grave a case as that of murder, the accused, in our system, has always the benefit of the merest shadow of a doubt. And this suggests another consideration very germane to the question.

            The very fact that death punishment is more shocking than any other to the imagination, necessarily renders the Courts of Justice more scrupulous in requiring the fullest evidence of guilt. Even that which is the greatest objection to capital punishment, the impossibility of correcting an error once committed, must make, and does make, juries and Judges more careful in forming their opinion, and more jealous in their scrutiny of the evidence. If the substitution of penal servitude for death in cases of murder should cause any declaration in this conscientious scrupulosity, there would be a great evil to set against the real, but I hope rare, advantage of being able to make reparation to a condemned person who was afterwards discovered to be innocent. In order that the possibility of correction may be kept open wherever the chance of this sad contingency is more than infinitesimal, it is quite right that the Judge should recommend to the Crown a commutation of the sentence, not solely when the proof of guilt is open to the smallest suspicion, but whenever there remains anything unexplained and mysterious in the case, raising a desire for more light, or making it likely that further information may at some future time be obtained. I would also suggest that whenever the sentence is commuted the grounds of the commutation should, in some authentic form, be made known to the public. Thus much I willingly concede to my hon. Friend . . .



Judicial or Juridical punishment is to be distinguished from natural punishment, in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator. Juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens. The penal law is a Categorical Imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: It is better that one man should die than that the whole people should perish. For if justice and righteousness perish, human life would no longer have any value in the world. What, then, is to be said of such a proposal as to keep a criminal alive who has been condemned to death, on his being given to understand that if he agreed to certain dangerous experiments being performed upon him, he would be allowed to survive if he came happily through them? It is argued that Physicians might thus obtain new information that would be of value to the commonweal. But a court of justice would repudiate with scorn any proposal of this kind if made to it by the medical faculty; for justice would cease to be justice, if it were bartered away for any consideration whatever. 

            But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other. It may be rendered by saying that the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said: If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself. This is the right of retaliation (jus talionis); and properly understood, it is the only principle which in regulating a public court, as distinguished from mere private judgment, can definitely assign both the quality and the quantity of a just penalty. All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict justice. It may appear, however, that difference of social status would not admit the application of the principle of retaliation, which is that of like with like. But although the application may not in all cases be possible according to the letter, yet as regards the effect it may always be attained in practice, by due regard being given to the disposition and sentiment of the parties in the higher social sphere. Thus a pecuniary penalty on account of a verbal injury, may have no direct proportion to the injustice of slander; for one who is wealthy may be able to indulge himself in this offence for his own gratification. Yet the attack com mitted on the honor of the party aggrieved may have its equivalent in the pain inflicted upon the pride of the aggressor, especially if he is condemned by the judgment of the court, not only to retract and apologize, but to submit to some meaner ordeal, as kissing the hand of the injured person. In like manner, if a man of the highest rank has violently assaulted an innocent citizen of the lower orders, he may be condemned not only to apologize but to undergo a solitary and painful imprisonment, whereby, in addition to the discomfort endured, the vanity of the offender would be painfully affected, and the very shame of his position would constitute an adequate retaliation after the principle of like with like. But how then would we render the statement: If you steal from another, you steal from yourself? In this way, that whoever steals anything makes the property of all insecure; he therefore robs himself of all security in property, according to the right of retaliation. Such a one has nothing, and can acquire nothing, but he has the Will to live; and this is only possible by others supporting him. But as the state should not do this gratuitously, he must for this purpose yield his powers to the state to be used in penal labor; and thus he falls for a time, or it may be for life, into a condition of slavery. But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice. There is no likeness or proportion between Life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal. His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable. Even if a civil society resolved to dissolve itself with the consent of all its members as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world the last murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that bloodguiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.

            The equalization of punishment with crime, is therefore only possible by the cognition of the judge extending even to the penalty of death, according to the plight of retaliation. This is manifest from the fact that it is only thus that a sentence can be pronounced over all criminals proportionate to their internal wickedness; as may be seen by considering the case when the punishment of death has to be inflicted, not on account of a murder, but on account of a political crime that can only be punished capitally. A hypothetical case, founded on history, will illustrate this. In the last Scottish Rebellion there were various participators in it such as Balmerino and others who believed that in taking part in the rebellion they were only discharging their duty to the House of Stuart; but there were also others who were animated only by private motives and interests. Now, suppose that the judgment of the Supreme Court regarding them had been this: that everyone should have liberty to choose between the punishment of death or penal servitude for life. In view of such an alternative, I say that the man of honor would choose death, and the knave would choose servitude. This would be the effect of their human nature as it is; for the honorable man values his honor more highly than even Life itself, whereas a knave regards a Life, although covered with shame, as better in his eyes than not to be. The former is, without gainsaying, less guilty than the other; and they can only be proportionately punished by death being inflicted equally upon them both; yet to the one it is a mild punishment when his nobler temperament is taken into account, whereas it is a hard punishment to the other in view of his baser temperament. But, on the other hand, were they all equally condemned to penal servitude for life, the honorable man would be too severely punished, while the other, on account of his baseness of nature, would be too mildly punished. In the judgment to be pronounced over a number of criminals united in such a conspiracy, the best equalizer of punishment and crime in the form of public justice is death. And besides all this, it has never been heard of, that a criminal condemned to death on account of a murder has complained that the sentence inflicted on him more than was right and just; and any one would treat him with scorn if he expressed himself to this effect against it. Otherwise it would be necessary to admit that although wrong and injustice are not done to the criminal by the law, yet the legislative power is not entitled to administer this mode of punishment; and if it did so, it would be in contradiction with itself.

            However many they may be who have committed a murder, or have even commanded it, or acted as art and part in it, they ought all to suffer death; for so justice wills it, in accordance with the idea of the juridical power as founded on the universal laws of reason. But the number of the accomplices in such a deed might happen to be so great that the state, in resolving to be without such criminals, would be in danger of soon also being deprived of subjects. But it will not thus dissolve itself, neither must it return to the much worse condition of nature, in which there would be no external justice. Nor, above all, should it deaden the sensibilities of the people by the spectacle of justice being exhibited in the mere carnage of a slaughtering bench. In such circumstances the Sovereign must always be allowed to have it in his power to take the part of the judge upon himself as a case of necessity, and to deliver a judgment which, instead of the penalty of death, shall assign some other punishment to the criminals, and thereby preserve a multitude of the people. The penalty of deportation is relevant in this connection. Such a form of judgment cannot be carried out according to a public law, but only by an authoritative act of the royal prerogative, and it may only be applied as an act of grace in individual cases.

            Against these doctrines, the Marquis Beccaria has given forth a different view. Moved by the compassionate sentimentality of a humane feeling, he has asserted that all capital punishment is wrong in itself and unjust. He has put forward this view on the ground that the penalty of death could not be contained in the original civil contract; for, in that case, every one of the people would have had to consent to lose his life if he murdered any of his fellow-citizens. But, it is argued, such a consent is impossible, because no one can thus dispose of his own life. All this is mere sophistry and perversion of right. No one undergoes punishment because he has willed to be punished, but because he has willed a punishable Action; for it is in fact no punishment when any one experiences what he wills, and it is impossible for anyone to will to be punished. To say, I will to be punished, if I murder any one, can mean nothing more than, I submit myself along with all the other citizens to the laws; and if there are any criminals among the people, these laws will include penal laws. The individual who, as a co-legislator, enacts penal law, cannot possibly be the same person who, as a subject, is punished according to the law; for, qua criminal, he cannot possibly be regarded as having a voice in the legislation, the legislator being rationally viewed as just and holy. If anyone, then, enact a penal law against himself as a criminal, it must he the pure juridically law-giving reason, which subjects him as one capable of crime, and consequently as another person, along with all the others in the civil union, to this penal law. In other words, it is not the people taken distributively, but the tribunal of public justice, as distinct from the criminal, that prescribes capital punishment; and it is not to be viewed as if the social contract contained the promise of all the individuals to allow themselves to be punished, thus disposing of themselves and their lives. For if the right to punish must be grounded upon a promise of the wrongdoer, whereby he is to be regarded as being willing to be punished, it ought also to be left to him to find himself deserving of the punishment; and the criminal would thus be his own judge. The chief error of this sophistry consists in regarding the judgment of the criminal himself, necessarily determined by his reason, that he is under obligation to undergo the loss of his life, as a judgment that must be grounded on a resolution of his Will to take it away himself; and thus the execution of the right in question is represented as united in one and the same person with the adjudication of the right.

            There are, however, two crimes worthy of death, in respect of which it still remains doubtful whether the legislature have the right to deal with them capitally. It is the sentiment of honor that induces their perpetration. The one originates in a regard for womanly honor, the other in a regard for military honor; and in both cases there is a genuine feeling of honor incumbent on the individuals as a duty. The former is the crime of maternal infanticide; the latter is the crime of killing a fellow soldier in a duel. Now legislation cannot take away the shame of an illegitimate birth, nor wipe off the stain attaching from a suspicion of cowardice, to an officer who does not resist an act that would bring him into contempt, by an effort of his own that is superior to the fear of death. Hence it appears that in such circumstances, the individuals concerned are remitted to the state of nature; and their acts in both cases must be called homicide, and not murder, which involves evil intent. In all instances the acts are undoubtedly punishable; but they cannot be punished by the supreme power with death. An illegitimate child comes into the world outside of the law which properly regulates marriage, and it is thus born beyond the pale or constitutional protection of the law. Such a child is introduced, as it were, like prohibited goods, into the commonwealth, and as it has no legal right to existence in this way, its destruction might also be ignored; nor can the shame of the mother when her unmarried confinement is known, be removed by any legal ordinance. A subordinate officer, again, on whom an insult is inflicted, sees himself compelled by the public opinion of his associates to obtain satisfaction; and, as in the state of nature, the punishment of the offender can only be effected by a duel, in which his own life is exposed to danger, and not by means of the law in a court of justice. The duel is therefore adopted as the means of demonstrating his courage as that characteristic upon winch the honor of his profession essentially rests; and this is done even if it should issue in the killing of his adversary. But as such a result takes place publicly and under consent of both parties, although it may be done unwillingly, it cannot properly be called murder. What then is the right in both cases as relating to criminal justice? Penal justice is here in fact brought into great straits, having apparently either to declare the notion of honor, which is certainly no mere fancy here, to be nothing in the eye of the law, or to exempt the crime from its clue punishment; and thus it would become either remiss or cruel. The knot thus tied is to be resolved in the following way. The Categorical Imperative of penal justice, that the killing of any person contrary to the law must be punished with death, remains in force; but the legislation itself and the civil constitution generally, so long as they are still barbarous and incomplete, are at fault. And this is the reason why the subjective motive-principles of honor among the people, do not coincide with the standards which are objectively conformable to another purpose; so that the public justice issuing from the state becomes Injustice relatively to that which is upheld among the people themselves.


Source: Cesare Beccaria On Crimes and Punishments (1764), tr. Edward D. Ingraham, Ch. 28. John Stuart Mill, speech before Parliament, April 21, 1868. Immanuel Kant, The Fundamental Principles of Jurisprudence (1796), tr. W. Hastie.


Questions for Review

1. In the section “we don’t give up our right to life,” Beccaria gives a social contract argument against capital punishment. What is it?

2. What are all the advantages of perpetual slavery, and how does it combat religious repentance?

3. In the section on the “harmful effects of the death penalty,” what are all the harmful effects that Beccaria mentions?

4. What is Beccaria’s description of the ruler who he hopes will adopt his views?

5. Mill believes that life imprisonment is less effective, yet more cruel than the death penalty. Why does he think it is crueler?

6. What is Mill’s reply to those who say that the death penalty is wrong since it is contrary to the notion of the sanctity of life?

7. What does Mill say about countries that have judicial systems that cannot guard against erroneous executions?


Questions for Analysis

1. In the section “only one justification of capital punishment,” explain that justification and say whether you agree.

2. Explain Beccaria’s argument in “perpetual slavery combats religious repentance,” and say whether you agree.

3. In the concluding section, Beccaria considers an argument for the death penalty from common consent: it is justified since nearly all countries practice it. Explain his criticism of this argument and say whether you agree.










Furman v. Georgia; Gregg v. Georgia; Coker v. Georgia; McCleskey v. Kemp; Payne v. Tennessee; Atkins v. Virginia; Roper v. Simmons


In the U.S., each State determines for itself whether to have the death penalty, and currently around 15 have abolished the practice. The death penalty statues that States adopt, though, are subject to U.S. Supreme Court decisions regarding whether they comply with the Constitution. Selections from seven of these are presented below. The most important of these in modern times is Furman v. Georgia (1972), which considered whether the death penalty violated the Constitution’s prohibition against cruel and unusual punishment. The Justices were deeply divided over the issue and could not arrive at a substantive majority opinion, but the centrist opinion of Justice Potter Stewart is considered the Court’s definitive position in the case. Stewart argues that, in principle, the death penalty justified on the grounds of retribution—or just desert. However, the penalty is handed down so arbitrarily that it does violate the Constitution’s ban on cruel and unusual punishment. A consequence of this decision was that the death penalty was suspended throughout the U.S., and only reinstated four years later in the court case Gregg v. Georgia (1976). So long as States have fair procedures that seek to minimize arbitrariness, then death penalty sentences would be Constitutionally valid. To that end, they recommended that such cases have trials that are split between a guilt phase and a sentencing phase. During the sentencing phase jurors would receive strict sentencing guidelines for determining whether the death penalty should be handed down. The next year in Coker v. Georgia (1977), the Court determined that, while the death penalty was appropriate for murder, it constituted cruel and unusual punishment for rape.

            The issue of racial bias in death penalty decisions was addressed in McCleskey v. Kemp (1987). Key to the case was statistical evidence indicating that persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers. The court rejected the contention that racial discrimination was a factor in the specific judgment against the defendant, Warren McClesky. McCleskey needed to show that his State acted with a discriminatory purpose in his conviction and trial, and there was no such evidence of that. Further, they held that, at most, the statistical evidence indicated a discrepancy that appeared to correlate with race. However, they concluded that apparent disparities in sentencing are an inevitable part of our criminal justice system, and the Constitution does not require that a State eliminate all potentially irrelevant factors. In Payne v. Tennessee (1991), the Court addressed the issue of victim impact statements, that is, testimonies presented during a trial’s sentencing phase where family members describe how they have been affected by the murder of their loved one. A previous Court decision prohibited impact statements as irrelevant to the facts of the crime. In Payne v. Tennessee, though, the Court overturned the previous decision and ruled that such statements give a face to the victim. In Atkins v. Virginia (2002), the Court banned the execution of the mentally retarded on the grounds that their decreased mental capacity reduces both their judgment and their responsibility. On similar grounds, the Court ruled in Roper v. Simmons (2005) that juveniles under age 18 could not be executed.





These three cases present the question whether the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.

            In No. 69-5003, Furman was convicted of murder for shooting the father of five children when he discovered that Furman had broken into his home early one morning. Nos. 69-5030 and 69-5031 involve state convictions for forcible rape. Jackson was found guilty of rape during the course of a robbery in the victim's home. The rape was accomplished as he held the pointed ends of scissors at the victim's throat. Branch also was convicted of a rape committed in the victim's home. No weapon was utilized, but physical force and threats of physical force were employed.


Concurring Opinion: Death Penalty Arbitrarily Imposed (Justice Stewart)

The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

            For these and other reasons, at least two of my Brothers [on the Supreme Court] have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. . . . I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.

            The constitutionality of capital punishment in the abstract is not, however, before us in these cases. For the Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape. And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder. In a word, neither State has made a legislative determination that forcible rape and murder can be deterred only by imposing the penalty of death upon all who perpetrate those offenses. As Mr. Justice White so tellingly puts it, the “legislative will is not frustrated if the penalty is never imposed.”

            Instead, the death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. In the first place, it is clear that these sentences are “cruel” in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. In the second place, it is equally clear that these sentences are “unusual” in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. But I do not rest my conclusion upon these two propositions alone.

            These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.  My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.


Dissenting Opinion: Capital Punishment as a Legislative Issue (Justice Burger)

If we were possessed of legislative power, I would either join with Mr. Justice Brennan and Mr. Justice Marshall [who oppose the death penalty] or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment. There is no novelty in being called upon to interpret a constitutional provision that is less than self-defining, but, of all our fundamental guarantees, the ban on “cruel and unusual punishments” is one of the most difficult to translate into judicially manageable terms. The widely divergent views of the Amendment expressed in today's opinions reveal the haze that surrounds this constitutional command. Yet it is essential to our role as a court that we not seize upon the enigmatic character of the guarantee as an invitation to enact our personal predilections into law. . . .

            There are no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned. It is not a punishment, such as burning at the stake, that everyone would ineffably find to be repugnant to all civilized standards. Nor is it a punishment so roundly condemned that only a few aberrant legislatures have retained it on the statute books. Capital punishment is authorized by statute in 40 States, the District of Columbia, and in the federal courts for the commission of certain crimes. On four occasions in the last 11 years, Congress has added to the list of federal crimes punishable by death. In looking for reliable indicia of contemporary attitude, none more trustworthy has been advanced. . . .

            The world-wide trend toward limiting the use of capital punishment, a phenomenon to which we have been urged to give great weight, hardly points the way to a judicial solution in this country under a written Constitution. Rather, the change has generally come about through legislative action, often on a trial basis and with the retention of the penalty for certain limited classes of crimes. Virtually nowhere has change been wrought by so crude a tool as the Eighth Amendment. The complete and unconditional abolition of capital punishment in this country by judicial fiat would have undermined the careful progress of the legislative trend and foreclosed further inquiry on many as yet unanswered questions in this area.

            Quite apart from the limitations of the Eighth Amendment itself, the preference for legislative action is justified by the inability of the courts to participate in the debate at the level where the controversy is focused. The case against capital punishment is not the product of legal dialectic, but rests primarily on factual claims, the truth of which cannot be tested by conventional judicial processes. The five opinions in support of the judgments differ in many respects, but they share a willingness to make sweeping factual assertions, unsupported by empirical data, concerning the manner of imposition and effectiveness of capital punishment in this country. Legislatures will have the opportunity to make a more penetrating study of these claims with the familiar and effective tools available to them as they are not to us.





Petitioner was charged with committing armed robbery and murder on the basis of evidence that he had killed and robbed two men. At the trial stage of Georgia's bifurcated procedure, the jury found petitioner guilty of two counts of armed robbery and two counts of murder. At the penalty stage, the judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count; that it was free to consider mitigating or aggravating circumstances, if any, as presented by the parties; and that it would not be authorized to consider imposing the death sentence unless it first found beyond a reasonable doubt (1) that the murder was committed while the offender was engaged in the commission of other capital felonies, viz., the armed robberies of the victims; (2) that he committed the murder for the purpose of receiving the victims' money and automobile; or (3) that the murder was “outrageously and wantonly vile, horrible and inhuman” in that it “involved the depravity of [the] mind of the defendant.”


Majority Opinion: sentencing Guidelines in the Trial’s Penalty Phase (Justices Stewart, Powell, and Stevens)

It is clear from the foregoing precedents [regarding cruel and unusual punishment] that the Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.

            But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” This means, at least, that the punishment not be “excessive.” When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder), rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime), is under consideration, the inquiry into “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime. . . .

            Furman mandates that, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. . . .

            While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. . . . Furman mandates that, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. . . .

            [T]he provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. To the extent that this problem is inherent in jury sentencing, it may not be totally correctable. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.

            The idea that a jury should be given guidance in its decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.

            While some have suggested that standards to guide a capital jury's sentencing deliberations are impossible to formulate, the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are presented in a concrete case.

            While such standards are, by necessity somewhat general, they do provide guidance to the sentencing authority, and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.

            In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition, these concerns are best met by a system that provides for a bifurcated proceeding [split between a guilt phase and a sentencing phase] at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

            We do not intend to suggest that only the above-described procedures would be permissible under Furman, or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital sentencing systems capable of meeting Furman's constitutional concerns.


Dissenting Opinion: Evolving Standards of Decency (Justice Brennan)

The Cruel and Unusual Punishments Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” The opinions of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens today hold that “evolving standards of decency” require focus not on the essence of the death penalty itself, but primarily upon the procedures employed by the State to single out persons to suffer the penalty of death. Those opinions hold further that, so viewed, the Clause invalidates the mandatory infliction of the death penalty, but not its infliction under sentencing procedures that Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens conclude adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.

            In Furman v. Georgia, I read “evolving standards of decency” as requiring focus upon the essence of the death penalty itself, and not primarily or solely upon the procedures under which the determination to inflict the penalty upon a particular person was made. . . . That continues to be my view. For the Clause forbidding cruel and unusual punishments under our constitutional system of government embodies in unique degree moral principles restraining the punishments that our civilized society may impose on those persons who transgress its laws.





While serving various sentences for murder, rape, kidnapping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence.


Majority Opinion: Excessiveness of Death Penalty for Rape (Justice White)

Furman v. Georgia, and the Court's decisions last Term in Gregg v. Georgia . . . make unnecessary the recanvassing of certain critical aspects of the controversy about the constitutionality of capital punishment. It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment . . . In sustaining the imposition of the death penalty in Gregg, however, the Court firmly embraced the holdings and dicta from prior cases, to the effect that the Eighth Amendment bars not only those punishments that are “barbaric,” but also those that are “excessive” in relation to the crime committed. . . . In Gregg, after giving due regard to such sources, the Court's judgment was that the death penalty for deliberate murder was neither the purposeless imposition of severe punishment nor a punishment grossly disproportionate to the crime. But the Court reserved the question of the constitutionality of the death penalty when imposed for other crimes.

            That question, with respect to rape of an adult woman, is now before us. We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment. . . .

            Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape, by definition, does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over, and normally is not beyond repair. We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” is an excessive penalty for the rapist who, as such, does not take human life.


Dissenting Opinion: Rape not a Minor Crime (Justice Burger)

In a case such as this, confusion often arises as to the Court's proper role in reaching a decision. Our task is not to give effect to our individual views on capital punishment; rather, we must determine what the Constitution permits a State to do under its reserved powers. In striking down the death penalty imposed upon the petitioner in this case, the Court has overstepped the bounds of proper constitutional adjudication by substituting its policy judgment for that of the state legislature. I accept that the Eighth Amendment's concept of disproportionality bars the death penalty for minor crimes. But rape is not a minor crime; hence the Cruel and Unusual Punishments Clause does not give the Members of this Court license to engraft their conceptions of proper public policy onto the considered legislative judgments of the States. Since I cannot agree that Georgia lacked the constitutional power to impose the penalty of death for rape, I dissent from the Court's judgment.






In 1978, petitioner, a black man, was convicted in a Georgia trial court of armed robbery and murder, arising from the killing of a white police officer during the robbery of a store. Pursuant to Georgia statutes, the jury at the penalty hearing considered the mitigating and aggravating circumstances of petitioner's conduct, and recommended the death penalty on the murder charge. The trial court followed the recommendation, and the Georgia Supreme Court affirmed. After unsuccessfully seeking postconviction relief in state courts, petitioner sought habeas corpus relief in Federal District Court. His petition included a claim that the Georgia capital sentencing process was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. In support of the claim, petitioner proffered a statistical study (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the murder victim's race and, to a lesser extent, the defendant's race. The study is based on over 2,000 murder cases that occurred in Georgia during the 1970's, and involves data relating to the victim's race, the defendant's race, and the various combinations of such persons' races. The study indicates that black defendants who killed white victims have the greatest likelihood of receiving the death penalty.


Majority Opinion: Inevitability of Some Sentencing Disparities (Justice Powell)

McCleskey's first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment. He argues that race has infected the administration of Georgia's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers. As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge, that this claim must fail. . . .

            The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire [i.e., jury pool] in a particular district. . . . But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. . . .

            McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. . . . For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. In Gregg v. Georgia, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose. . . .

            At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is “a far cry from the major systemic defects identified in Furman”. As this Court has recognized, any mode for determining guilt or punishment “has its weaknesses and the potential for misuse.” Specifically, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.'“ Despite these imperfections, our consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process. . . .

            McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence  rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could -- at least in theory -- be based upon any arbitrary variable, such as the defendant's facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not “plac[e] totally unrealistic conditions on its use.”


Dissenting Opinion: Reducing Racial Bias in Sentencing (Justice Stevens)

The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder “for whites only”) and no death penalty at all, the choice mandated by the Constitution would be plain. But the Court's fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated. As Justice Brennan has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a price to pay.





Petitioner Payne was convicted by a Tennessee jury of the first-degree murders of Charisse Christopher and her 2-year-old daughter, and of first-degree assault upon, with intent to murder, Charisse's 3-year-old son Nicholas. The brutal crimes were committed in the victims' apartment after Charisse resisted Payne's sexual advances. During the sentencing phase of the trial, Payne called his parents, his girlfriend, and a clinical psychologist, each of whom testified as to various mitigating aspects of his background and character. The State called Nicholas' grandmother, who testified that the child missed his mother and baby sister. In arguing for the death penalty, the prosecutor commented on the continuing effects on Nicholas of his experience and on the effects of the crimes upon the victims' family. The jury sentenced Payne to death on each of the murder counts. The State Supreme Court affirmed, rejecting his contention that the admission of the grandmother's testimony and the State's closing argument violated his Eighth Amendment rights under Booth v. Maryland and South Carolina v. Gathers, which held that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are per se inadmissible at a capital sentencing hearing.


Majority Opinion: Balancing Effect of Impact Statements (Justice Rehnquist)

We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” By turning the victim into a “faceless stranger at the penalty phase of a capital trial,” Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.

            The present case is an example of the potential for such unfairness. The capital sentencing jury heard testimony from Payne's girlfriend that they met at church, that he was affectionate, caring, kind to her children, that he was not an abuser of drugs or alcohol, and that it was inconsistent with his character to have committed the murders. Payne's parents testified that he was a good son, and a clinical psychologist testified that Payne was an extremely polite prisoner and suffered from a low IQ. None of this testimony was related to the circumstances of Payne's brutal crimes. In contrast, the only evidence of the impact of Payne's offenses during the sentencing phase was Nicholas' grandmother's description — in response to a single question — that the child misses his mother and baby sister. Payne argues that the Eighth Amendment commands that the jury's death sentence must be set aside because the jury heard this testimony. But the testimony illustrated quite poignantly some of the harm that Payne's killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by the defendant. . . .

            We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.


Dissenting Opinion: Irrelevant Evidence (Justice Stevens)

The novel rule that the Court announces today represents a dramatic departure from the principles that have governed our capital sentencing jurisprudence for decades. Justice Marshall is properly concerned about the majority's trivialization of the doctrine of stare decisis [i.e., respect for precedent]. But even if Booth and Gathers had not been decided, today's decision would represent a sharp break with past decisions. Our cases provide no support whatsoever for the majority's conclusion that the prosecutor may introduce evidence that sheds no light on the defendant's guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.

            Until today our capital punishment jurisprudence has required that any decision to impose the death penalty be based solely on evidence that tends to inform the jury about the character of the offense and the character of the defendant. Evidence that serves no purpose other than to appeal to the sympathies or emotions of the jurors has never been considered admissible. Thus, if a defendant, who had murdered a convenience store clerk in cold blood in the course of an armed robbery, offered evidence unknown to him at the time of the crime about the immoral character of his victim, all would recognize immediately that the evidence was irrelevant and inadmissible. Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty.





Petitioner Atkins was convicted of capital murder and related crimes by a Virginia jury and sentenced to death. Affirming, the Virginia Supreme Court relied on Penry v. Lynaugh, 492 U.S. 302, in rejecting Atkins’ contention that he could not be sentenced to death because he is mentally retarded.


Majority Opinion: Not Justified by Retribution or Deterrence (Justice Stevens)

[O]ur death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.”

            With respect to retribution–the interest in seeing that the offender gets his “just deserts”–the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

            With respect to deterrence–the interest in preventing capital crimes by prospective offenders–”it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation.’” . . . Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable–for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses–that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. . . .

            The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. . . .  Mentally retarded defendants in the aggregate face a special risk of wrongful execution.


Dissenting Opinion: (Justice Scalia)

[T]he Court gives two reasons why the death penalty is an excessive punishment for all mentally retarded offenders. First, the “diminished capacities” of the mentally retarded raise a “serious question” whether their execution contributes to the “social purposes” of the death penalty, viz., retribution and deterrence. . . . Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty. Who says so? Is there an established correlation between mental acuity and the ability to conform one’s conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality.

            Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is “no more culpable” than the “average” murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime–which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today imposes upon all trials, but rather by the sentencer’s weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. . . .

            As for the other social purpose of the death penalty that the Court discusses, deterrence: That is not advanced, the Court tells us, because the mentally retarded are “less likely” than their non-retarded counterparts to “process the information of the possibility of execution as a penalty and . . . control their conduct based upon that information.” . . . [E]ven the Court does not say that all mentally retarded individuals cannot “process the information of the possibility of execution as a penalty and . . . control their conduct based upon that information”; it merely asserts that they are “less likely” to be able to do so. But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class.





At age 17, respondent Simmons planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. This Court then held, in Atkins v. Virginia, that the Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the execution of a mentally retarded person. Simmons filed a new petition for state postconviction relief, arguing that Atkins’ reasoning established that the Constitution prohibits the execution of a juvenile who was under 18 when he committed his crime.


Majority Opinion: Immaturaty and Irresponsibility of Juveniles (Justice Kennedy)

Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” . . . Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” . . . In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

            The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment.

            The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.

            These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. . . .

            Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”


Dissenting Opinion: Age an Inadequate Dividing Line (Justice O’Connor)

It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences bear on juveniles’ comparative moral culpability. But even accepting this premise, the Court’s proportionality argument fails to support its categorical rule.

            First, the Court adduces no evidence whatsoever in support of its sweeping conclusion that it is only in “rare” cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the Court’s argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty.

            The Court’s proportionality argument suffers from a second and closely related defect: It fails to establish that the differences in maturity between 17-year-olds and young “adults” are both universal enough and significant enough to justify a bright-line prophylactic rule against capital punishment of the former. . . . In short, the class of offenders exempted from capital punishment by today’s decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary–it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not. . . .

            I turn, finally, to the Court’s discussion of foreign and international law. Without question, there has been a global trend in recent years towards abolishing capital punishment for under-18 offenders. . . . Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court’s moral proportionality argument justifies a categorical, age-based constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court. In short, the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases.


Source: Justices Stewart and Burger, Furman v. Georgia (1972); Justices Stewart, Powell, Stevens, and Brennan, Gregg v. Georgia (1976); Justices White and Burger, Coker v. Georgia (1977); Justices Powell and Stevens, McCleskey v. Kemp (1987); Justices Rehnquist and Stevens, Payne v. Tennessee (1991); Justices Stevens and Scalia, Atkins v. Virginia (2002); Justices Kennedy and O’Connor, Roper v. Simmons (2005).


Questions for Review

1. In Furman v. Georgia, why, according to Justice Stewart, is the death penalty both a cruel and unusual punishment?

2. In Gregg v. Georgia, what are the two ways in which a punishment cannot be excessive?

3. In Coker v. Georgia, why, according to the Court, is the death penalty for rape disproportionate and excessive?

4. In McCleskey v. Kemp, describe the slippery slope that, according to the Court, McClesky’s claim would lead down when taken to its logical conclusion.

5. In his dissenting opinion in Payne v. Tennessee, what reason does Justice Stevens give for opposing victim impact statements?

6. In Atkins v. Virginia, the Court states that the grounds for the death penalty are retribution and deterrence. Why, according to the Court, do these grounds not apply to the mentally retarded?

7. In Roper v. Simmons, what are the three differences between juveniles and adults?


Questions for Analysis

1. In Furman v. Georgia, Justice Stewart defends capital punishment on retributive grounds. The instinct for retribution, he argues, is part of human nature and incorporating it into law promotes stability of a society governed by law by eliminating vigilantism. However, Italian philosopher Cesare Beccaria argued that, instead of being influenced by passion, our laws and judicial system “should be the cool moderator of the passions of individuals” (On Crimes and Punishment). From Beccaria’s perspective, Stewart is just capitulating to an angry and vengeful mob. How might Stewart respond to this?

2. Justice Harry Blackmun was one of seven justices who voted in favor of reinstating the death penalty in Gregg v. Georgia (1976). Years later, though, he stated the following: “From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed” (Callins v. Collins, 1994). Is Blackmun right that we should abandon the death penalty if we cannot develop substantive rules that would make it fair? Explain.

3. In his dissenting opinion in Coker v. Georgia, Justice Burger argued that states should be able to make rape a capital crime if they so choose. Examine his reasoning and discuss whether you agree.

4. In McCleskey v. Kemp, statistical evidence was presented that indicated racial bias in death penalty cases, which the court essentially rejected. Examine their grounds for doing so and say whether their decision was correct.

5. Should victim impact statements be allowable in death penalty cases? Discuss the majority and dissenting opinions on this issue in Payne v. Tennessee, and defend one side over the other.

6. In his dissenting opinion in Atkins v. Virginia, Justice Scalia argued that mentally retarded murderers should not be exempt from the death penalty. Examine his reasoning and discuss whether you agree.

7. Countries around the world have banned or severely curtailed the death penalty, while the U.S. has retained it. Several Supreme Court justices discuss whether international practices should impact Supreme Court decisions on the death penalty. Examine the statements on this issue by Justice Burger in Furman v. Georgia, and Justices Kennedy and O’Connor in Roper v. Simmons. Whose view is right?


* * * *





Russell D. Feingold, George Ryan and Strom Thurmond


In 2000, Governor George Ryan called a moratorium on all executions in his state of Illinois. His decision was the result of disturbing evidence that many inmates on death row were in fact innocent of the crime, they were convicted of, or at least accused based on faulty evidence. His decision sparked a national debate about the justness of executions that are conducted both by state governments and the federal government. In 2002, a Senate hearing was conducted on the issue of executing the innocent, and George Ryan was among the speakers present. The selection below begins with an introductory statement by Senator Russell D. Feingold, chairman of the committee, in which he argues that the problem of executing the innocent extends beyond Illinois to the nation as a whole. In his statement, Ryan argued that the criminal justice system is so flawed that it innocent people are regularly given the death penalty. While many steps can be taken to improve the system, given human frailty, he maintains, we can never guarantee that only the guilty will be executed. In opposition to Ryan’s position, Senator Strom Thurmond defended the use of the death penalty in both state and federal cases. He agrees that we should implement appropriate safeguards in death penalty cases, but nevertheless maintains that the system works well and the death penalty is too important of a tool to be abandoned.



Recently Exonerated Death Row Inmates

... This hearing will explore the bold, unique, yet entirely reasonable response by Governor George Ryan and the people of Illinois to flaws in the current administration of the death penalty, most notably, the risk of executing innocent people.

            Earlier this year, our nation hit a very troubling milestone: the 100th innocent person in the modern death penalty era was exonerated and released from death row. A few weeks later, we hit 101. During this same period, there have been close to 800 executions at the state and federal levels. This means that the system is so fraught with error that, for every eight executions, there has been one person on death row later found innocent in the modern death penalty era. Of course, for every innocent person wrongfully convicted, a guilty person has likely gone free and may still be able to commit more crimes.

            The 100th death row inmate to be exonerated is Ray Krone. Mr. Krone was wrongfully convicted and served ten years in the Arizona prisons for a murder he did not commit, before he finally walked out a free man. Faulty forensic analysis and circumstantial evidence led to Mr. Krone’s conviction. But a DNA test set him free and points to another man as the killer. Mr. Krone is in the audience today. Mr. Krone, thank you for joining us today.

            Two other men who share the same dubious distinction are with us today, Kirk Bloodsworth and Juan Melendez. Mr. Bloodsworth served 9 years in the Maryland prisons, including some time on death row, for a rape and murder he did not commit. Mr. Bloodsworth was convicted primarily on the basis of faulty eyewitness testimony. Like Mr. Krone, a DNA test was the key to his freedom.

            Mr. Melendez sat on death row in Florida for almost two decades before a court finally overturned his murder conviction. The court cited the prosecution’s failure to provide the defense with critical evidence and the lack of physical evidence linking him to the crime. After the court’s decision, state prosecutors announced they would drop the charges against him. Mr. Melendez was released earlier this year. Mr. Bloodsworth and Mr. Melendez, thank you for joining us.

            These men -- Mr. Krone, Mr. Bloodsworth, Mr. Melendez – and the other 98 innocent former death row inmates are the reason we are having today’s hearing. These are not abstractions, they are real people, innocent men who suffered for years under the very real possibility of being put to death for crimes they did not commit.

            There is no question that those who perpetrate heinous crimes should be punished and punished severely. And there is no question that the family and friends of murder victims bear an awful, painful burden for the rest of their lives. Society owes them our most steadfast effort to bring the perpetrators to justice and sentence them severely. But society also has a responsibility to ensure that only the guilty are convicted and punished.


Illinois’s Moratorium on Executions

This hearing will explore the steps that one state – Illinois – has taken to address this difficult dilemma. In Illinois, after 13 death row inmates were exonerated and released, as compared with the 12 executions carried out after the death penalty was reinstated in 1977, a consensus emerged among both death penalty opponents and proponents that the state’s death penalty system was broken. Two years ago, on January 31, 2000, Governor Ryan took the courageous step of placing a moratorium on executions in Illinois.

            Governor Ryan then created an independent, blue ribbon commission of present and former prosecutors, public defenders, a former federal judge, and distinguished Illinois citizens, including one of our former colleagues, Senator Paul Simon. Governor Ryan instructed this commission to review the state’s death penalty system and to advise him on how to reduce the risk of executing the innocent and ensure fairness in the system. Governor Ryan’s decision to suspend executions and create a commission sparked a national debate on the fairness of the current administration of the death penalty.

            After two years of work, the Illinois Governor’s Commission on Capital Punishment completed its task and released its report in April of this year. The Commission set forth 85 recommendations for reform of the Illinois death penalty system. These recommendations address difficult issues like inadequate defense counsel, executions of the mentally retarded, coerced confessions, and the problem of wrongful convictions based solely on the testimony of a jailhouse snitch or a single eyewitness. The Commission’s work is the first comprehensive review of a death penalty system undertaken by a state or federal government in the modern death penalty era. We will hear more about the Commission’s work and its recommendations in this hearing.

            The risk of executing the innocent and other flaws in the administration of the death penalty are not unique to Illinois. The 101 innocent people who were sent to death row and later exonerated come from 24 different states. In addition to Illinois, exonerations of people sentenced to death have occurred in Alabama, Arizona, California, Florida, Georgia, Idaho, Indiana, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Virginia, and Washington.

            Just last month, Governor Parris Glendening of Maryland placed a moratorium on executions in his state to allow a study on racial disparities he ordered two years ago to be completed. I commend Governor Glendening for his leadership, and I hope that other governors follow the lead of Governor Ryan and Governor Glendening.

            But I also believe Congress has an important responsibility to ensure that innocent people are not executed and that constitutional protections are respected in the administration of capital punishment across the country. ...



You know, throughout my career, I believed that only the guilty could be sent to death row, being from a little town in Illinois called Kankakee, where the death penalty and death row were kind of in the abstract for those who didn’t really have a lot to do with it. So I never really questioned the system. Bad guys went to death row, and they were executed.

            You may have heard me tell this story in the past, Mr. Chairman, but it was some 25 years ago, and I vividly remember voting to put the death penalty back on the Illinois books.

            As a member of the Illinois General Assembly, I was voting yes to put the law back on the books, and during the debate of that bill, an opponent of the death penalty asked if any of us that were voting yes or supporting the bill would be willing to “throw the switch.”

            It was a pretty sobering question, and it gave me a lot of reason for thought. But it wasn’t my responsibility, and for that I was relieved. It was still kind of in the abstract for me, and I still believed that the death penalty was the right answer. Administration of the death penalty was something that was left up to the criminal justice system and certainly that system would never make a mistake.

            So I voted for the death penalty. The fact is now, as Governor, I learned the responsibility is mine, and I do “throw the switch.” It is an awesome responsibility, and it is probably the toughest job that any Governor has, who should live or who should die.

            Since those days as a legislator, a lot has happened to shake my faith in the death penalty system. And the more I have learned, the more troubled I have become.

            The State executing an innocent man or woman is the ultimate nightmare. The fact is we have come very close to that prospect 13 times in Illinois.


Anthony Porter’s Case

Anthony Porter’s case is a shocking example of just that. Back in the fall of 1998, when I was still campaigning for Governor, Anthony Porter was scheduled to be executed on September 23rd of that year. He had ordered his last meal and he had been fitted for his burial clothes.

            He had been convicted in 1982 of shooting a man and a woman to death in a South Side park of Chicago.

            Two days--two days--before he was to die, his lawyers won a last-minute reprieve, a temporary reprieve that was based on his IQ which they believed to be about 51.

            With that delay, some of the great journalism students from Northwestern University and their professor, David Protess, who is also a very powerful champion for justice, had some time to start their own investigation into the then 16-year-old case. Anthony Porter had been on death row for 16 years.

            With the help of a private detective, the students picked up in one aspect of the case, and they found that they could help Anthony Porter.

            Key witnesses, like one who claimed that he saw Porter at the crime scene, an eyewitness who absolutely saw Porter shoot these people, recanted that testimony and said that Porter was framed.

            The students then followed their leads into your home State, Senator, into Milwaukee, where the private detective obtained a video confession from a man named Alstory Simon.

            Simon told the private detective that he shot the two victims in an argument over some drug money. With that new evidence, charges were dropped and the innocent Mr. Porter was freed in February of 1999. An innocent man spent nearly 17 years on death row, with an IQ of 51, barely able to defend himself or know what the charges were. The charges against him were wrong, and they nearly sent him to death, after spending nearly 17 years on death row.

            I had the opportunity to meet with Mr. Porter just last week, and he told me how he was kept in his dark cell for 23 hours a day. His eyes can’t tolerate the sun today because they are so sensitive. And that is tough punishment for a guilty man, let alone an innocent one. If you can imagine enduring that much pain, all the while knowing that you are innocent.

            I was caught off guard by Mr. Porter’s case because I had just taken office. I didn’t know how bad our system really was. Shortly after Anthony Porter’s case, while I was still trying to recover from what had happened to him, the Andrew Kokoraleis case came to my desk.

            Andrew Kokoraleis was a serial killer, and he had been charged with the brutal murder, rape, and mutilation of a young 21-year-old woman. After the mistakes the system made in the Porter case, I agonized. I had to decide whether Kokoraleis was going to live or whether he was going to die. I reviewed the case. I consulted with staff. I called in veteran prosecutors and defense attorneys. I requested additional information from the Prisoner Pardon Board. I checked and double-checked and triple-checked because I wanted to be absolutely sure that this man who was sentenced to death was going to be guilty. And in the end, I was sure without any doubt that Andrew Kokoraleis was guilty of a monstrous, unspeakable crime. I allowed his execution to proceed.

            But it was an emotional, exhausting experience, and one that I would not wish on anybody. It all came down to me. I am a pharmacist, Senator, from Kankakee, Illinois, who had the good fortune to be elected Governor of the State of Illinois. But now, in fact, I had to throw the switch. Quite frankly, I think that might be too much to ask of one person to decide.

            That experience was really not the end of my journey. Journalists Steve Mills and Ken Armstrong of the Chicago Tribune conducted an in-depth investigation of the death penalty cases in Illinois in 1999 that was absolutely startling. Half--half, if you could imagine--of the nearly 300 capital cases in Illinois had been reversed for a new trial or sentencing hearing. Thirty-three of the death row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from practicing law. Thirty-five African American death row inmates had been convicted or condemned by an all-white jury. In fact, two out of three of our approximately 160 Illinois death row inmates are African American.

            Prosecutors used jailhouse informants to convict or condemn 46 death row inmates. So it was clear that there were major questions about the system--questions that I alone could not answer.


Moratorium and Governor's Commission on Capital Punishment

In January of 2000, the 13th death row inmate was found wrongfully convicted of the murder for which he had been sentenced to die. At that point, I was looking at a very shameful scorecard: since the death penalty had been reinstated in 1977, 12 inmates had been executed and 13 were exonerated. To put it simply, we had a better than a 50-50 chance of executing an innocent person in Illinois.

            The odds of justice being done were as arbitrary as the flip of a coin.

            Up until then, I had resisted calls by some to declare a moratorium on executions. But then I had to ask myself how could I go forward with so many unanswerable questions about the fairness of the administration of the death penalty in Illinois. And how on Earth could we have come so close -- again and again--to putting fatal doses of poison into the bodies of innocent people strapped to a gurney in our State’s death chamber?

            It was clear to me that when it came to the death penalty in Illinois, there was just no justice in the justice system. I declared the moratorium on January 31, 2000, because it was the only thing I could do. I had to put a stop to the possibility of killing an innocent person.

            That was the easy part. The hard part was to find out why our system was so bad and what had gone so terribly wrong with it. The hard part was to try and find out answers to how our system of justice became so fraught with errors, especially when it came to imposing the ultimate, irreversible penalty.

            So I appointed some of the smartest, most dedicated citizens that I could find to a commission to study what had gone so terribly wrong. It was chaired by former Federal Judge Frank McGarr and was co-chaired by a former colleague of yours, Senator Paul Simon, and the former U.S. Attorney from the Northern District of Illinois, a fellow by the name of Thomas Sullivan.

            They led a panel which included former prosecutors, defense lawyers, and non-lawyers. Accomplished attorney Scott Turow, whom you have heard from earlier today, a best-selling author and Commission member, along with Commissioner Don Hubert, whom you just heard from, and Matt Bettenhausen. My Commission put together a tremendous document. They developed 85 recommendations to improve the caliber of the justice system of our State. It does not single out anyone, but it calls for reforms in the way police and prosecutors and defense attorneys and judges and elected officials do their business.

            I have taken the entire report and introduced it to the Illinois General Assembly. It will require legislation, and hopefully the General Assembly will take the bill and have hearings around the State and shape it into a good piece of legislation that will pass.

            My bill proposes barring the execution of the mentally retarded, mandating that natural life is given as a sentencing option to juries, and reducing the death penalty eligibility factors from 20 to 5, and barring the death penalty when a conviction is based solely on a jailhouse snitch.

            This summer, the General Assembly, as I said, will hold hearings, and I hope that they will hear from all of the key parties throughout the State--prosecutors, defense attorneys, victims, and the wrongfully convicted.

            My Commission reviewed at least at some level every capital case that we have ever had in Illinois, but it took a closer look at the 13 inmates that were freed from death row and exonerated.

            Most did not have solid evidence. We had cases where jailhouse snitches were the only key witnesses, another case where a drug-addicted witness sent a man to death row, and DNA freed several inmates. Some were convicted because of overzealous police and prosecutors. Some had inadequate representation at trial.

            The Commission concluded that its recommendations will significantly improve the fairness and accuracy of the Illinois death penalty system. But it also concluded, and I also quote, “No system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no... innocent person is ever again sentenced to death.” I think that is a pretty powerful statement, and it is one that I will ponder.

            In the meantime, we do know this: I said 2 years ago, and I can say now, until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with a moral certainty that no innocent person is facing a lethal injection, nobody will meet that fate as long as I’m Governor.

            We all want to punish the guilty. There isn’t any question about it. But in doing so, we must never punish the innocent. And we almost did that in many cases here. And with our mistake-prone system in Illinois, that is just what we were about to do. ...



            ... Opponents of the death penalty have pointed to the state of Illinois as a sign of a criminal justice system gone bad. However, a close look at the facts reveals that while there were indeed problems in some Illinois capital cases, the system is far from broken. Despite reports to the contrary, many of the exonerated individuals have not been shown to be actually innocent and several of them were released due to procedural missteps.

            Nevertheless, the prospect of the execution of an innocent person is unacceptable, and I am committed to preventing it. I want to assure my colleagues that I support due process and fundamental fairness for those facing capital charges. The finality of the death sentence requires extraordinary diligence, so that mistakes do not occur.

            In addition to a discussion of the situation in Illinois, our hearing today provides the opportunity for a debate on the overarching question of whether the death penalty continues to be an appropriate punishment in the American system of justice. I believe that it is. Some crimes are so depraved and heinous that the imposition of a death sentence is warranted and necessary. Not only do I and other members of this committee support capital punishment, but most Americans do as well. According to a May 9, 2002, Gallup Poll, 72% of Americans favor the death penalty for persons convicted of murder.


The Accuracy and Fairness of the Federal System

During the 107th Congress, Chairman Feingold has introduced S. 233, the National Death Penalty Moratorium Act of 2001, that would place a moratorium on executions by the Federal government and urge states to do the same, while a National Committee reviews the administration of the death penalty. I do not support these efforts to place a moratorium on the death penalty, and I do not believe that the circumstances in Illinois have any relevance on a Federal moratorium. There is absolutely no evidence to indicate that there is one innocent person awaiting execution for a Federal offense. The few cases in Illinois state courts, while troubling, do not bear on the Federal system.

            The fact remains that the administration of the death penalty at both the Federal and state levels is more accurate than ever. There is not one documented case of the execution of an innocent person since the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), resulted in the reform of state death penalty statutes. In addition, DNA testing is now widely available to ensure the highest degree of accuracy. I have supported legislation in the past that would provide for post-conviction DNA testing in cases where a DNA test has the potential to exonerate the defendant. Furthermore, funding for appointed defense counsel has increased in recent years, and reports by both Attorneys General Reno and Ashcroft found that there is no racial bias in Federal death penalty cases.

            Both the Reno and Ashcroft reports detail the close scrutiny that capital cases receive at the Federal level. It is a system designed to ensure that those who receive the ultimate punishment are truly deserving. In 1995, the Department of Justice developed the death penalty protocol. This protocol requires United States Attorneys to submit for review all cases in which a defendant is charged with a capital offense, even if the U.S. Attorney does not recommend seeking the death penalty. These submissions are then reviewed by the Capital Case Unit in the Criminal Division, followed by another review by the Attorney General’s capital case review committee. Recommendations are then made to the Attorney General, and he makes the final determination.

            To prevent any bias, the review is performed without revealing the race or ethnicity of the defendant to anyone reviewing the case in Washington, including the Attorney General. By all accounts, this process is working and minorities are not being targeted unfairly. At each stage of the review process, the death penalty is recommended for a higher percentage of whites than for blacks or Hispanics.

            Death penalty critics often argue that despite this thorough process, there is an inherent racial bias because the percentage of minorities being charged for capital offenses is higher than that of the general population. However, as former Attorney General Reno noted, this argument holds for the entire criminal justice system. Unless we are willing to accuse both the Federal and state criminal justice systems of racial bias, it simply does not follow that the capital punishment system is discriminatory. In this context, it is important to note that the Reno report found that 70% of the victims of defendants charged with Federal capital crimes were minorities.

            A Columbia University report known as the Leibman study is often cited as proof that capital punishment in this country is deeply flawed. This study, published in 2000, alleged that from 1973 to 1995, 70% of death penalty convictions were reversed on appeal. The implication is that 70% of the time, innocent people were sentenced to death. This study should be viewed carefully because during the time period addressed by this study, the Supreme Court issued a series of retroactive rules that nullified a number of verdicts. These reversals were not based on the actual innocence of defendants, but rather were based on procedural rules.

            I would also like to stress the difference between the terms “exoneration” and “actual innocence.” Media reports often confuse the two. If a defendant is exonerated based on a procedural misstep, that person has not been proven innocent. Even if one were to accept the assertion that some of the exonerated individuals were actually innocent, this does not prove that innocent people have been executed. On the contrary, it would only prove that the system is working and that in cases where the evidence of guilt is insufficient, executions do not take place.


The Illinois Recommendations

I would now like to address the report of the Illinois Commission on Capital Punishment. The Commission did not advocate abolishing the death penalty in Illinois but did make 85 recommendations concerning the imposition of the death penalty. Many of these recommendations are acceptable, and I would welcome their implementation at both the state and Federal levels. For example, the report calls for increased training and support for trial judges that hear capital cases. Another recommendation would provide for the dissemination of case law updates to trial judges. The Commission also calls for further training of both prosecutors and defense lawyers and supports minimum qualification standards for defense counsel. Many states require defense attorneys to meet a certain level of qualification, and this is a positive development.

            Unfortunately, many recommendations made by the Commission are problematic, and I would not support them at the Federal level or encourage their adoption at the state level. In fact, some of the recommendations severely restrict the use of the death penalty. Due to the fact that a majority of the Commission’s members favor abolishing capital punishment, I cannot help but wonder if these recommendations are back-door ways to discourage the use of the death penalty.

            For example, the Commission recommends the videotaping of all interrogations of potential capital defendants at police facilities. The underlying rationale is that the entire interview will be on record, and this will discourage police officers from engaging in inappropriate activities to secure confessions. This recommendation would be very costly, would be impractical, and would not necessarily guard against abuse. Unless funding were provided, this requirement would be a high-priced mandate. Furthermore, it is often difficult for officers to know, at the early stages of an investigation, who might be a capital suspect. If investigators are still in the act of piecing the story together, they would have to videotape everyone they interview as a precaution. Additionally, the use of a videotape is open to abuse as well. If an officer were inclined to coerce a confession, there is nothing to prevent that officer from forcing the suspect to confess when the tape starts rolling.

            The Commission also recommends that a statement of a homicide suspect that was not recorded should be repeated back to him on tape, so that his comments can be recorded. This recommendation is unwise. If a suspect unintentionally blurts out an incriminating statement on the way to the station, it is entirely possible that he will deny having made the statement when it is repeated back to him. At trial, a good defense attorney will no doubt use the one existing recording that disputes, rather than confirms, what the officer heard.

            Another recommendation that I cannot support would significantly reduce the offenses for which the death penalty is available. The Commission would limit capital eligibility to the murder of two or more persons, the murder of a police officer or firefighter, the murder of an officer or inmate of a correctional institution, murder involving the use of torture, and murder committed to obstruct the justice system. While I agree that the death penalty should apply in all of these cases, the Commission has excluded other crimes that deserve capital status. For example, the Commission has failed to include felony murder as a capital-eligible offense. Therefore, the death penalty would not be available even if the defendant murdered someone in the course of another felony, such as rape. Also, in many circumstances, the death penalty would not be available for the murder of one person. This recommendation inexplicably and unwisely restricts the use of death penalty, and it should be rejected.

            Yet another of the Commission’s recommendations would prohibit the use of the death penalty in cases where conviction is based upon the testimony of a single eyewitness, without any corroboration. This suggestion is undoubtedly well-intentioned, but it should not be adopted because it interferes with the traditional role of the jury as the finder of fact. If the jury doubts the veracity of the statement and there is no other evidence to back up the claim, the jury may refuse to believe the testimony of the eyewitness. A similar recommendation would prohibit the use of the death penalty based on the uncorroborated testimony of an in-custody informant. Similarly, this recommendation would also interfere with the jury’s role of determining the facts.

            However, I understand the concern about in-custody informants and other witnesses whose trustworthiness is questionable. It would be perfectly reasonable to require a trial judge to issue a jury instruction that cautions jurors about reliance on the testimony of these witnesses. The instruction should not require witnesses to disregard the testimony. Rather, the instruction should make it clear that the decision to accept or reject the statement is entirely the jury’s, but that this testimony should be viewed very carefully.

            Mr. Chairman, I would like to make one last point about capital punishment. It saves lives. A January, 2002, Emory University study examined murder rates in the United States since 1977, when executions resumed after a period of nine years. The study found that each execution prevents an average of 18 murders. This finding demonstrates that if we are really interested in preventing the death of innocent people, capital punishment should be part of our criminal justice system.

            To be sure, we should implement appropriate safeguards and closely monitor the administration of the death penalty at both the Federal and state levels. We should ensure that innocent people are not convicted and certainly not executed. But we should not overreact at the Federal level to problems that are unique to the state of Illinois. It is important to keep in mind that the very formation of this Commission demonstrates that the people of Illinois are committed to the improvement of their capital punishment system. Furthermore, not one innocent person has been executed.

            The death penalty is simply too important a tool to be abandoned. Capital punishment provides prosecutors with a crucial negotiating tool and also exacts punishment for the most vile and heinous of crimes. ...


Source: Senate Judiciary Committee hearing, Reducing The Risk of Executing the Innocent,  June 12, 2002.


Questions for Review

1. Describe Anthony Porter’s case as Ryan presents it.

2. What, according to Ryan, did the Chicago Tribune journalists conclude in their recent death penalty cases?

3. What were the key recommendations of the Ryan Commission on the Death Penalty?

4. What evidence does Thurmond give to support his view that death penalty convictions in the Federal system are accurate and fair.

5. What is the distinction between “exoneration” and “actual innocence” as described by Thurmond?

6. Which recommendations of the Ryan Commission does Thurmond agree with?

7. Which recommendations of the Ryan Commission does Thurmond oppose?


Questions for Analysis

1. Some have argued that it is OK to occasionally execute an innocent person since this is counterbalanced by the good that the death penalty does for society. Defend or refute this position.

2. Thurmond states that 72% of Americans support he death penalty. Explain why this is or is not a relevant factor in determining the justness of the death penalty.

3. Thurmond disagrees with the Ryan commission’s recommendation that the death penalty be restricted to only five types of cases. Defend that recommendation of the Ryan commission.

4. Thurmond disagrees with the Ryan commission’s recommendation to exclude the death penalty when a case is based on a single eye-witness or jailhouse informant. According to Thurmond, this limits the jury’s role in determining facts. Defend or refute Thurmond’s contention.





Stephen B. Bright


Attorney Stephen B. Bright is a visiting lecturer at Yale Law School, and President of the Southern Center for Human Rights. In the essay below, he argues that the death penalty today is still as arbitrary as it was decades ago, and it should be abolished. Pursuing the death penalty is based on the decision of individual prosecutors, and juries in white communities hand down death penalty verdicts more than those in mixed communities. He argues that wrongful convictions frequently occur and result from poor legal representation, mistaken identifications, the unreliable testimony of informants who swap their testimony for lenient treatment, and police and prosecutorial misconduct.” Further, according to Bright, the death penalty does not deter since murderers are not the kind of people who rationally assess risks, and, even if they were, they don’t have the right information about the death penalty to make a reasoned judgment.


. . . This is a most appropriate time to assess the costs and benefits of the death penalty. Thirty years ago, in 1976, the Supreme Court allowed the resumption of capital punishment after declaring it unconstitutional four years earlier in Furman v. Georgia. Laws passed in response to Furman were supposed to correct the constitutional defects identified in 1972. However, 30 years of experience has demonstrated that those laws have failed to do so.

            The death penalty is still arbitrary. It's still discriminatory. It is still imposed almost exclusively upon poor people represented by court-appointed lawyers. In many cases the capabilities of the lawyer have more to do with whether the death penalty is imposed than the crime. The system is still fallible in deciding both guilt and punishment. In addition, the death penalty is costly and is not accomplishing anything. And it is beneath a society that has a reverence for life and recognizes that no human being is beyond redemption.

            Many supporters of capital punishment, after years of struggling to make the system work, have had sober second thoughts about it. Justice Sandra Day O'Connor, who leaves the Supreme Court after 25 years of distinguished service, has observed that "serious questions are being raised about whether the death penalty is being fairly administered in this country" and that "the system may well be allowing some innocent defendants to be executed." Justices Lewis Powell and Harry Blackmun also voted to uphold death sentences as members of the court, but eventually came to the conclusion, as Justice Blackmun put it, that "the death penalty experiment has failed.'"

            The Birmingham News announced in November that after years of supporting the death penalty it could no longer do so "[b]ecause we have come to believe Alabama's capital punishment system is broken. And because, first and foremost, this newspaper's editorial board is committed to a culture of life." . . .

            The death penalty is not imposed to avenge every murder and—as some contend—to bring "closure" to the family of every victim. There were over 20,000 murders in 14 of the last 30 years and 15,000 to 20,000 in the others. During that time, there have been just over 1000 executions—an average of about 33 a year. Sixteen states carried out 60 executions last year. Twelve states carried out 59 executions in 2004, and 12 states put 65 people to death in 2003.

            Moreover, the death penalty is not evenly distributed around the country. Most executions take place in the South, just as they did before Furman. Between 1935 and 1972, the South carried out 1887 executions; no other region had as many as 500. Since 1976, the Southern states have carried out 822 of 1000 executions; states in the Midwest have carried out 116; states in the west 64 and the Northeastern states have carried out only four. The federal government, which has had the death penalty since 1988, has executed three people. Only one state, Texas, has executed over 100 people since 1976. It has executed over 350.

            Further experimentation with a lethal punishment after centuries of failure has no place in a conservative society that is wary of too much government power and skeptical of government's ability to do things well. We are paying an enormous cost in money and the credibility of the system in order to execute people who committed less than one percent of the murders that occur each year. The death penalty is not imposed for all murders, for most murders, or even for the most heinous murders. It is imposed upon a random handful of people convicted of murder—often because of factors such as the political interests and predilections of prosecutors, the quality of the lawyer appointed to defend the accused, and the race of the victim and the defendant. A fairer system would be to have a lottery of all people convicted of murder; draw 60 names and execute them.

            Further experimentation might be justified if it served some purpose. But capital punishment is not needed to protect society or to punish offenders. We have not only maximum security prisons, but "super maximum" prisons where prisoners are completely isolated from guards and other inmates, as well as society.



Justice Potter Stewart said in 1972 that the death penalty was so arbitrary and capricious that being sentenced to death was like being struck by lightning. It still is. As was the case in 1972, there is no way to distinguish the small number of offenders who get death each year from the thousands who do not. This is because prosecutorial practices vary widely with regard to the death penalty; the lawyers appointed to defend those accused are often not up to the task of providing an adequate defense; differences between regions and communities and the resulting differences in the composition of juries; and other factors.


A. Prosecutorial discretion and plea bargaining

Whether death is sought or imposed is based on the discretion and proclivities of the thousands of people who occupy the offices of prosecutor injudicial districts throughout the nation. (Texas, for example, has 155 elected prosecutors, Virginia 120, Missouri 115, Illinois 102, Georgia 49, and Alabama 40). Each prosecutor is independent of all the others in the state.

            The vast majority of all criminal cases—including capital cases—are decided not by juries, but through plea bargains. The two most important decisions in any capital case are the prosecutor's—first, whether to seek the death penalty and, second, if death is sought, whether to agree to a lesser punishment, usually life imprisonment without any possibility of parole, instead of the death penalty as part of a plea bargain.

            The practices of prosecutors vary widely. They are never required to seek the death penalty. Some never seek it; some seek it from time to time; and some seek it at every opportunity. Some who seek it initially will nevertheless agree to a plea bargain and a life sentence in almost all cases; others will refuse a plea disposition and go to trial. In some communities, particularly predominantly white suburban ones, the prosecutor may get a death sentence from a jury almost any time a case goes to trial. In other communities—usually those with more diverse racial populations—the prosecutors often find it much more difficult, if not impossible, to obtain a death sentence. Those prosecutors may eventually stop seeking the death penalty because they get it so seldom. And regardless of the community and the crime, juries may not agree to a death sentence. Timothy McVeigh's co­defendant, Terry Nichols, was not sentenced to death by either a federal or state jury for his role in the bombing of the federal building in Oklahoma City that caused 168 deaths.

            Without being critical of any person or community and without questioning the motives of any of them, it is clear that there is not going to be consistent application of the death penalty when prosecutors operate completely independent of one another.

            Because of different practices by prosecutors, there are geographical disparities with regard to where death is imposed within states. Prosecutors in Houston and Philadelphia have sought the death penalty in virtually every case where it can be imposed. As a result of aggressive prosecutors and inept court-appointed lawyers, Houston and Philadelphia have each condemned over 100 people to death—more than most states. Harris County, which includes Houston, has had more executions in the last 30 years than any state except Texas and Virginia.

            Whether death is sought may depend upon which side of the county line the crime was committed. A murder was committed in a parking lot on the boundary between Lexington County, South Carolina, which, at the time, had sentenced 12 people to death, and Richland County, which had sent only one person to death row. The murder was determined to have occurred a few feet on the Lexington County side of the line. The defendant was tried in Lexington County and sentenced to death. Had the crime occurred a few feet in the other direction, the death penalty almost certainly would not have been imposed.

            There may be different practices even within the same office. For example, an Illinois prosecutor announced that he had decided not to seek the death penalty for Girvies Davis after Davis' case was reversed by the state supreme court. However, while the case was pending, a new prosecutor took office and decided to seek the death penalty for Davis. He was successful and Davis was executed in 1995.

            As a result of a plea bargain, Ted Kaczynski, the Unabomber, who killed three, injured many others, and terrified even more by mailing bombs to people, avoided the death penalty. Serial killers Gary Leon Ridgway, who pleaded guilty to killing 48 women and girls in the Seattle area, and Charles Cullen, a nurse who pleaded guilty to murdering 29 patients in hospitals in New Jersey and Pennsylvania, also avoided the death penalty through plea bargains, as did Eric Rudolph, who killed security guard in Birmingham and set off a bomb that killed one and injured many more at the 1996 Olympics. Rudolph was allowed to plead and avoid the death penalty in exchange for telling the authorities where he hid some dynamite in North Carolina. Others avoid the death penalty by agreeing to testify for the prosecution against the other(s) involved in the crime.

            Although some serial killers are sentenced to death, most of the men and women on death rows are there for crimes that, while tragic and fully deserving of punishment, are less heinous than the examples mentioned above as well as many other cases in which death was not imposed.


B. Representation for the accused

Once a prosecutor decides to seek death, the quality of legal representation for the defendant can be the difference between life and death. A person facing the death penalty usually cannot afford to hire an attorney and is at the mercy of the system to provide a court-­appointed lawyer. While many receive adequate representation (and often are not sentenced to death as a result), many others are assigned lawyers who lack the knowledge, skill, resources—and sometime even the inclination—to handle a serious criminal case. People who would not be sentenced to death if properly represented are sentenced to death because of the incompetent court-appointed lawyers.

            For example, Detmis Williams was convicted twice of the 1978 murders of a couple from Chicago's south suburbs and sentenced to death. He was represented at his first trial by an attorney who was later disbarred and at his second trial by a different attorney who was later suspended. Williams was later exonerated by DNA evidence. Four other men sentenced to death in Illinois were represented by a convicted felon who was the only lawyer in Illinois history to be disbarred twice.

            A dramatic example of how bad representation can be is provided by this description from the Houston Chronicle of a capital trial:


            Seated beside his client—a convicted capital murderer—defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep.

            His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again.

            Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 199], arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan.

            When state District Judge Doug Shaver finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial.

            "It's boring," the 72-year-old longtime Houston lawyer explained. . .

            Court observers said Benn seems to have slept his way through virtually the entire trial.


            This sleeping did not violate the right to a lawyer guaranteed by the United States Constitution, the trial judge explained, because, "[t]he Constitution doesn't say the lawyer has to be awake." On appeal, the Texas Court of Criminal Appeals rejected McFarland's claim that he was denied his right to counsel over the dissent of two judges who pointed out that "[a] sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense." Last year, the Court reaffirmed its opinion.

            George McFarland was one of at least three people sentenced to death in Houston at trials where their lawyers slept. Two others were represented by Joe Frank Cannon. One of them, Carl Johnson, has been executed. Cannon was appointed by Houston judges for forty years to represent people accused of crimes in part because of his reputation for hurrying through trials like "greased lightening," and despite his tendency to doze off during trial. Ten of Cannon's clients were sentenced to death, one of the largest numbers among Texas attorneys. Another notorious lawyer appointed to defend capital cases in Huston had 14 clients sentenced to death.

            The list of lawyers eligible to handle capital cases in Tennessee in 2001, circulated to trial judges by the state Supreme Court, included a lawyer convicted of bank fraud, a lawyer convicted of perjury, and a lawyer whose failure to order a blood test let an innocent man languish in jail for four years on a rape charge. Courts in other states have upheld death sentences in cases in which lawyers were not aware of the governing law, were not sober, and failed to present any evidence regarding either guilt-innocence or penalty. One federal judge, in reluctantly upholding a death sentence, observed that the Constitution, as interpreted by the U.S. Supreme Court, "does not require that the accused, even in capital cases, be represented by able or effective counsel.'"

            The Supreme Court has said that the death penalty should be imposed "with reasonable consistency, or not at all.” That is simply not happening.



Innocent people have been wrongfully convicted because of poor legal representation, mistaken identifications, the unreliable testimony of people who swap their testimony for lenient treatment, police and prosecutorial misconduct and other reasons. Unfortunately, DNA testing reveals only a few wrongful convictions. In most cases, there is no biological evidence that can be tested. In those cases, we must rely on a properly working adversary system—in which the defense lawyer scrutinizes the prosecution's case, consults with the client, conducts a thorough and independent investigation, consults with experts, and subjects the prosecution case to adversarial testing—to bring out all the facts and help the courts find the truth. But even with a properly working adversary system, there will still be convictions of the innocent. The best we can do is minimize the risk of wrongful convictions. And the most critical way to do that is to provide the accused with competent counsel and the resources needed to mount a defense.

            The innocence of some of those condemned to die has been discovered by sheer happenstance and good luck. For example, Ray Krone was convicted and sentenced to death in Arizona based on the testimony of an expert witness that his teeth matched bite marks on the victim. During the ten years that Krone spent on death row, scientists developed the ability to compare biological evidence recovered at crime scenes with the DNA of suspects. DNA testing established that Krone was innocent.

            The governor of Virginia commuted the death sentence of Earl Washington to life imprisonment without parole in 1994 because of questions regarding his guilt. Were it not for that, Washington would not have been alive six years later, when DNA evidence—not available at the time of Washington 's trial or the commutation -established that Washington was innocent and he was released.

            Poor legal representation led to a death sentence for Gary Drinkard, who spent five years on Alabama's death row for a crime he did not commit. At his trial, he was represented by one lawyer who did collections and commercial work and another who represented creditors in foreclosures and bankruptcy cases. The case was reversed on appeal for reasons having nothing to do with the quality of his representation. Our office joined with an experienced criminal defense lawyer from Birmingham and represented him at his retrial. After all the evidence was presented, including the testimony of the doctor, the jury acquitted Drinkard in less than two hours.

            Evidence of innocence has surfaced at the last minute and only because of volunteers who found it. Anthony Porter, sentenced to death in Illinois, went through all of the appeals and review that are available for one sentenced to death. Every court upheld his conviction and sentence. As Illinois prepared to put him to death, a question arose as to whether Porter, who was brain damaged and mentally retarded, understood what was happening to him. Just two days before he was to be executed, a court stayed his execution for a mental examination. After the stay was granted, a journalism class at Northwestern University and a private investigator examined the case and proved that Porter was innocent. They obtained a confession from the person who committed the crime. Porter was released, becoming the third person released from llIinois's death row after being proven innocent by a journalism class at Northwestern."

            There has been some argument over how many innocent people have been sentenced to death and whether any have been executed. We do not know and we cannot know. If DNA evidence had not been available to prove Ray Krone's innocence, if Earl Washington had been executed instead of commuted to life, if Gary Drinkard had not received a new trial, and if Anthony Porter was not mentally impaired and the journalism class had not come to his rescue, all would have been executed and we would never know to this day of their innocence. Those who proclaim that no innocent person has ever been executed would continue to do so, secure in their ignorance.

            With regard to the quibbling over how many people released from death rows have actually been innocent, even one innocent person being convicted of a crime and sentenced to death or a prison term is one too many. "Close enough for government work" is simply not acceptable when life and liberty are at stake. Regardless of how one counts and what one counts, we know that an unacceptable number of innocent people have been convicted in both capital and non-capital cases.

            There is nothing wrong with looking at the system as it really is and with a little humility about what it is capable of. There are cases—many of them—in which the criminal courts have correctly determined that a person is guilty. There are others where it is clear the system was wrong because the innocence of those convicted has been conclusively established through DNA evidence or other compelling proof. There are also cases in which it is virtually impossible to tell for sure whether a person is guilty or innocent. There is no DNA evidence or other conclusive proof. The case depends upon which witness the jury believes. Or new facts come to light after the trial. It is impossible to know what the jury's verdict would have been if it had considered those facts.

            We want to believe that our judges and juries are capable of doing the impossible—determining the truth in every instance. And in most instances, they can determine the truth. But cases that depend upon eyewitness identification, forensic evidence from a crime laboratory with shoddy practices like those that have come to light in Houston and Oklahoma City, the testimony of a co-defendant, who claims the defendant was the primary person, or the cellmate who claims the defendant admitted committing the crime to him, or there is inadequate defense for the accused, there is a serious possibility of an error. Just last week, a judge who presided over a capital case in California in which death was imposed wrote to the governor urging clemency for the defendant because the judge believes the sentence was based on false testimony from a jailhouse informant.

            Often overlooked is the jury's verdict with regard to sentence—whether to condemn the person to die or sentence him to a long prison sentence—which is as important as its verdict on guilt. The decision of the legal system to bring about the deliberate, institutionalized taking of a person's life is surely a determination that the person is so beyond redemption that he or she should be eliminated from the human community. But that determination is quite often erroneous.

            I have seen many people who were once condemned to die but are now useful and productive members of society. One of them, Shareef Cousin, works in our office. He was sentenced to death when he was 16 years old. However, it turned out that he was not guilty of the murder for which he was sentenced to death. We are tremendously impressed with him. He is a hard worker; someone we have found we can count on. He is applying to colleges. He is very serious about getting in to college and will be a very serious student.

            But it is not just the innocent. William Neal Moore spent 16 1/2, years on Georgia's death row for a murder he committed in the course of a robbery. He had eight execution dates and came within seven hours of execution on one occasion. His death sentence was commuted to life imprisonment in 1990 and a year later he was paroled. He comes to the law schools and speaks to my classes every year. He was very religious while in prison, and he is has remained every bit as religious in the 15 years he has been out. He met and married someone with two daughters and has been a good father. Both girls are in college. He has judgment and maturity now that he did not have when he committed the crime.

            I can give you many more examples like these of people who were condemned to die but who have clearly demonstrated that they were more than the worst thing they ever did.



The scholars will address whether a punishment that is imposed in less than one percent of murder cases serves as a deterrent to murder. I offer no statistics, only a few observations from over 30 years of dealing with the people who are supposedly being deterred.

            In my experience, these are not people who assess risks, plan ahead and make good judgments. They would not have committed their crimes if they thought they were going to be caught, regardless of the punishment. But they don't expect to get caught so they don't even get to the question of what punishment will be inflicted. Why would anyone commit a crime—for example, murder and robbery to get money to buy drugs—if they thought that instead of enjoying the drugs in the free world they would be spending the rest of their life in prison or even years in prison?

            Even if they get to the issue of punishment—I cannot imagine how they process the information. A large portion of the people who end up on death rows are people with very poor reading skills. They don't read the newspaper or watch the news or listen to public radio. When they are assessing the risk of getting executed, are they supposed to consider that nationally they have a one percent chance of getting the death penalty if they are caught and convicted? Or are they to consider whether they are in one of the 12 to 16 states that has carried out a death sentence in the last three years? How much of a deterrent can it be in the states that have two or three people on their death rows and have carried out one or two executions over 30 years? Are they deterred if they are in New Hampshire, which has a death penalty law but has never imposed it? How do they learn that New Hampshire has a death penalty law? Do states that have not carried out any executions or have carried out just a few need to carry out more in order to deter, or can they benefit from executions in other states?

            The more routine executions become, the less media coverage they get. How are people supposed to find out about executions and be deterred if they are not getting any media coverage?

            Beyond that, is the potential murderer going to take into account the likelihood of being assigned a bad court-appointed lawyer, of being tried before an all-white jury instead of a racially diverse jury, and other factors which will increase his chances of getting the death penalty?

            The people I have encountered who committed murder do not have the information and many are not capable of going through a reasonable consideration of it if they had it. Many people who commit murder suffer from schizophrenia, bi-polar disorder, major brain damage or other severe mental impairments. They may have a very distorted sense of reality or may not even be in touch with reality.

            Finally, if death were a deterrent, it would surely deter gang members and drug dealers. They see death up close. Killings over turf and in retaliation for other killings make death very real. It is summary and there are no appeals. They see brothers and friends killed; go to funerals. They have much greater likelihood of getting death on the streets than in the courts. But, it does not change their behavior.



There is a growing recognition that it is just not worth it. A Florida prosecutor let a defendant plead guilty to killing five people because a sentence of life imprisonment without parole would bring finality. The Palm Beach Post observed "The State saves not only the cost of a trial; the victims' relatives—who supported the deal- do not have to relive the horror. The state will save more by avoiding years of appeals; . . . Most important, [the defendant] never again will threaten the public.""

            New York spent more than $170 million on its death penalty over a ten year period, from 1995 to 2005, before its Court of Appeals declared its death penalty law unconstitutional. During that time, the state did not carry out a single execution. Only seven persons were been sentenced to death—an average of less than one a year—and the first four of those sentences were struck down by the New York Court of Appeals on various grounds. The speaker of the state's assembly remarked, "I have some doubt whether we need a death penalty. . . . We are spending tens of millions of dollars [that] may be better spent on educating children.” He also pointed out that the state now has a statute providing for life imprisonment without parole that ensures those convicted of murder cannot go free.

            Similarly, Kansas did not carry out any executions between 1994, when it reinstated the death penalty, and 2004 when the state supreme court ruled it unconstitutional. Kansas had eight people under sentence of death, six from one county.

            New Jersey, which just declared a moratorium on executions, has spent $253 million on its death penalty since 1983. It has yet to carry out an execution and has only ten people on its death row. In other words, the state has spent a quarter of a billion dollars over 23 years and has not carried out a single execution. Michael Murphy, a former prosecutor for Morris County, remarked, "if you were to ask me how $11 million a year could best protect the people of New Jersey, I would tell you by giving the law enforcement community more resources. I'm not interested in hypotheticals or abstractions, 1 want the tools for law enforcement to do their job, and $11 million can buy a lot of tools."

            These are states which made every effort to do it right. It is also possible to have death on the cheap. A number of states have done this. Capital cases may last as little as a day and a half. Georgia recently executed a man who was assigned a lawyer- a busy public defender—just 37 days before his trial and denied any funds for investigation or expert witnesses. But this completely undermines confidence in the courts and devalues life.



Supreme Court Justice Arthur Goldberg said that the deliberate institutionalized taking of human life by the state is the greatest degradation of the human personality imaginable. It is not just degrading to the individual who is tied down and put down. It is degrading to the society that carries it out. It coarsens the society, takes risks with the lives of the poor, and diminishes its respect for life and its belief in the possible redemption of every person. It is a relic of another era. Careful examination will show that the death penalty is not serving any purpose in our society and is not worth the cost.


Source: U.S. Senate Judiciary subcommittee hearing on An Examination of the Death Penalty in the United States (2006). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).


Questions for Review

1. According to Bright, what are some of the decisions that prosecutors make which result in the death penalty being arbitrarily imposed?

2. Describe the legal representation that some death penalty defendants have.

3. From Bright’s experience with death row convicts, why are murderers typically not deterred by the death penalty?

4. Describe the costliness of the appeals process as Bright describes it.


Questions for Analysis

1. According to Bright, one reason that the death penalty is so arbitrary is that individual prosecutors decide for themselves whether to pursue the death penalty in specific murder cases. Is this a good or bad argument against the death penalty? Explain.

2. Bright argues that a good appeals process is so costly that many states are considering abolishing the death penalty. Is this a good or bad argument against the death penalty? Explain.






John McAdams


John McAdams is a professor of Political Science at Marquette University in Milwaukee. In the essay below, he defends the effectiveness of the death penalty against two common criticisms, namely, that many innocent people are executed and that the death penalty is imposed with racial bias against black killers. Regarding executing the innocent, he argues that there are far fewer innocent people on death row than is commonly believed, and at most the total number of people actually executed is a handful, and none within the past few decades. Most social policies, he argues, have some negative consequences, and often these involve the death of innocent people, such as when the government wages a just war or when the FDA approves new drugs. By comparison with these social policies, the deaths of innocent people from capital punishment are minimal. Regarding racial bias, he argues that the real racial bias within the criminal justice system is not against black killers, but instead against black victims: killers of blacks receive lighter sentences than do killers of whites. Since most black killers have black victims, this means that black killers are actually under-punished. This bias, he explains, applies throughout the criminal justice system, and not just with death penalty cases.


There are a huge number of issues that relate to the merits of the death penalty as a punishment, including deterrence, the moral justice of the punishment, the cost of the imposition of the sanction, and even (implausibly) what policies European nations have.

            But I'm going to concentrate, given the limited time I have, on two issues that I think are key: the issue of "innocents" convicted and sent to death row, and the issue of racial disparity in the application of the punishment.



One of the most compelling arguments against the death penalty, at least if one accepts the claims of the death penalty opponents at face value, is the claim that a great many innocent people have been convicted of murder and put on death row. Liberal Supreme Court Justice John Paul Stevens, just to pick one case out of hundreds, told the American Bar Association's Thurgood Marshall Award dinner that "That evidence is profoundly significant, not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice.”

            The most widely publicized list of "innocents" is that of the Death Penalty Information Center (DPIC). As of January, 2003, it listed 122 people. That sounds like an appallingly large number, but even a casual examination of the list shows that many of the people on it got off for reasons entirely unrelated to being innocent. Back in 2001, I analyzed the list when it had ninety-five people on it. By the admission of the Death Penalty Information Center, thirty-five inmates on their list got off on procedural grounds. Another fourteen got off because a higher court believed the evidence against them was insufficient. If the higher court was right, this would be an excellent reason to release them, but it's far from proof of innocence.

            Interestingly, prosecutors retried thirty-two of the inmates designated as "innocent." Apparently prosecutors believed these thirty-two were guilty. But many whom prosecutors felt to be guilty were not tried again for a variety of reasons, including the fact that key evidence had been suppressed, witnesses had died, a plea bargain was thought to be a better use of scarce resources, or the person in question had been convicted and imprisoned under another charge.

            More detailed assessments of the "Innocents List" have shown that it radically overstates the number of innocent people who have been on death row. For example, the state of Florida had put on death row 24 inmates claimed, as of August 5, 2002, to be innocent by the DPIC. The resulting publicity led to a thorough examination of the twenty-four cases by the Florida Commission on Capital Crimes, which concluded that in only four of the twenty-four cases was the factual guilt of these inmates in doubt.

            Examinations of the entire list have been no more favorable. For example, a liberal federal district judge in New York ruled, in United States v. Quinones, that the federal death penalty is unconstitutional. In this case, the court admitted that the DPIC list "may be over-inclusive" and, following its own analysis, asserted that for thirty-two of the people on the list there was evidence of "factual innocence.” This hardly represents a ringing endorsement of the work of the Death Penalty Information Center. In academia, being right about a third of the time will seldom result in a passing grade.

            Other assessments have been equally negative. Ward A. Campbell, Supervising Deputy Attorney General of the State of California reviewed the list in detail, and concluded that:


 . . . it is arguable that at least 68 of the 102 defendants on the List should not be on the list at all—leaving only 34 released defendants with claims of actual innocence—less than 1/2 of 1% of the 6,930 defendants sentenced to death between 1973 and 2000.


There is, of course, a degree of subjectivity in all such assessments. The presence of "reasonable doubt" does not make a person factually innocent (although it's an excellent reason to acquit them), and circumstances might conspire to make a factually innocent person appear to even an objective observer to be guilty "beyond a reasonable doubt." The key thing to remember is that the numbers produced by DPIC are "outliers"—grossly inflated. Indeed, staffers of this very committee have pretty much dismantled the DPIC list.

            Taking at face value the claims of the activists is about as bad as taking at face value the claims of the National Rifle Association about the number of Americans who save themselves from bodily harm because they own and carry guns, or the claims of NARAL about how many "back alley abortions" would result from overturning Roe v. Wade.



Worse than putting an innocent person on death row (only to have him later exonerated) would be to actually execute an innocent person. But death penalty opponents can't point to a single innocent person known to have been executed for the last 35 years. They do make claims, however.

            In the 1980s, two academics who strongly opposed the death penalty (Hugo Adam Bedau and Michael Radelet) claimed that of 7,000 people executed in the United States in the 20th century, 23 were innocent. This doesn't seem like a large number, especially when we remember that most of the eases they claimed were from an era when defendants had many fewer due process rights than they do today, when police forces and prosecutors were much less well-trained and professional than they are today, and when the media was less inclined to take an "advocacy" role in claimed cases of injustice.

            Indeed, Bedau and Redelet produced only one case since the early 1960s where they claimed an innocent man had been executed -- that of one James Adams. But even this one case was quite weak. Steven J. Markman and Paul G. Cassell, in a Stanford Law Review article, took Bedau and Radelet to task for "disregard of the evidence," and for putting a spin on the evidence that supported their thesis of Adams' innocence. Markman and Cassell concluded that there is, "no persuasive evidence that any innocent person has been put to death in more than twenty-five years.” In response, Bedau and Radelet admitted to the Chronicle of Higher Education that (in the words of the Chronicle's reporter) "some cases require subjective analysis simply because the evidence is incomplete or tainted." They admitted this was true of all 23 cases that they reported.

            The most sober death penalty opponents have apparently given up claiming solid evidence of any innocent person executed in the modern era. Indeed Barry Scheck, cofounder of the Innocence Project, was featured speaker at the Wrongfully Convicted on Death Row Conference in Chicago (November 13-15, 1998), and was interviewed by the "Today Show." Schenk was asked by Matt Lauer, "Since 1976, 486 people have been executed in this country. Any doubt in your mind that we've put to death .innocent people?" Scheck responded "Well, you know, I—I think that we must have put to death innocent people, but if you're saying to me to prove it right now, I can't.”

            Nothing stops death penalty opponents from making all sort of claims about innocent people being executed. But in the rare cases when their claims can actually be tested, they turn out to be false. Consider, for example, the case of Roger Keith Coleman, who was tried for a rape/murder, and finally executed by the State of Virginia in 1992. An essay still on the site of the Death Penalty Information Center discusses the case at considerable length, and clearly leaves the impression that Coleman must be innocent. After attacking all the evidence against Coleman, the essay claims that "official misconduct that has left the case against Roger Coleman in shreds" and goes on to claim:


. . . there is dramatic evidence that another person, Donney Ramey, committed the murder. For one thing, a growing number of women in the neighborhood have reported being sexually assaulted by Ramey in ways strikingly similar to the attack on Wanda McCoy. For another, one of these rape victims, Teresa Horn, has courageously signed an affidavit stating that Ramey told her he had killed Mrs. McCoy. He threatened to do the same to Ms. Horn.


            Someone reading the Death Penalty Information Center website, and lacking due skepticism toward the assertions there, would doubtless conclude that Coleman was innocent. Unfortunately, the State of Virginia allowed DNA testing of key evidence in 2005, using technology unavailable in 1992, and proved decisively that Coleman was in fact guilty as charged. The credibility of anti-death penalty activists when making claims of innocence ­— whether for those on death row or those who have been executed—is tenuous at best.



At this point, death penalty opponents will argue that it doesn't matter if their numbers are inflated. Even if only 20 or 30 innocent people have been put on death row, they will say, that is "too many" and calls for the abolition of the death penalty. If even one innocent person is executed, they claim, that would make the death penalty morally unacceptable.

            This kind of rhetoric allows the speaker to feel very self-righteous, but it's not the sort of thinking that underlies sound policy analysis. Most policies have some negative consequences, and indeed often these involve the death of innocent people—something that can't be shown to have happened with the death penalty in the modern era. Just wars kill a certain number of innocent noncombatants. When the FDA approves a new drug, some people will quite likely be killed by arcane and infrequent reactions. Indeed, the FDA kills people with its laggard drug approval process. The magnitude of these consequences matters.

            Death penalty opponents usually implicitly assume (but don't say so, since it would be patently absurd) that we have a choice between a flawed death penalty and a perfect system of punishment where other sanctions are concerned.

            Death penalty opponents might be asked why it's acceptable to imprison people, when innocent people most certainly have been imprisoned. They will often respond that wrongfully imprisoned people can be released, but wrongfully executed people cannot be brought back to life. Unfortunately, wrongfully imprisoned people cannot be given back the years of their life that were taken from them, even though they may walk out of prison.

            Perhaps more importantly, it's cold comfort to say that wrongfully imprisoned people can be released, when there isn't much likelihood that that will happen. Wrongful imprisonment receives vastly less attention than wrongful death sentences, but Barry Scheck's book Actual Innocence lists 10 supposedly innocent defendants, of whom only 3 were sent to death row. Currently, the Innocence Project website lists 174 persons who have been exonerated on the basis of hard DNA evidence." But the vast majority were not sentenced to death. In fact, only 15 death row inmates have been exonerated due to DNA evidence.

            There is every reason to believe that the rate of error is much lower for the death penalty than for imprisonment. There is much more extensive review by higher courts, much more intensive media scrutiny, cadres of activists trying to prove innocence, and better quality counsel at the appeals level (and increasingly at the trial level) if a case might result in execution. Consider the following quote from an article about how prosecutors in Indiana are tending more and more to ask for life imprisonment and not the death penalty because of the cost of getting an execution:


Criminal rules require a capital defendant to have two death penalty certified attorneys, which, if the defendant is indigent, are paid for on the public dime. Other costs that might be passed onto taxpayers are requirements that the accused have access to all the tools needed to mount a fair defense, including mitigation experts, investigators, and DNA experts. Because the stakes are so high in a death penalty case, the courts believe a defendant is entitled to a super due process.


The cost of getting a death penalty is too high in some ways (seemingly endless appeals). But in other ways lesser penalties are too cheap (lacking good lawyers, DNA testing, etc.). The system, in fact, is quite unbalanced, with it being relatively cheap and easy to sentence someone to life imprisonment but excessively expensive to have them executed. But until some balance is restored, the death penalty will remain the fairest penalty we have. Balance will be achieved by ending "dead weight loss" in administering the death penalty (further limiting the number of appeals), while working for more substantive justice where lesser sanctions are at issue.



Death penalty opponents tend to inhabit sectors of society where claiming "racial disparity" is an effective tactic for getting what you want. In academia, the media, the ranks of activist organizations, etc. claiming "racial disparity" is an excellent strategy for getting anybody who has qualms about what you are proposing to shut up, cave in, and get out of the way. Unfortunately, this has created a hot-house culture where arguments thrive that carry little weight elsewhere in society, and carry little weight for good reasons.

            Consider the notion that, because there is racial disparity in the administration of the death penalty, it must be abolished. Applying this principle in a consistent way would be unthinkable. Suppose we find that black robbers are treated more harshly than white robbers. Does it follow that we want to stop punishing robbers? Or does it follow that we want to properly punish white robbers also? Nobody would argue that racial inequity in punishing robbers means we have to stop punishing robbers. Nobody would claim that, if we find that white neighborhoods have better police protection than black neighborhoods that we address the inequity by withdrawing police protection from all neighborhoods. Or that racial disparity in mortgage lending requires that mortgage lending be ended. Yet people make arguments exactly like this where capital punishment is concerned.

            A further problem with the "racial disparity" argument—and one underlining the fundamental incoherence of the abolitionist's thinking—is the fact that there are two versions of it, both widely bandied around, and they are flatly contradictory. I have elsewhere described these as the "mass market" and the "specialist" versions of the racial disparity thesis.

            The mass market version is the easiest to understand, since it relies on the notion that racist cops, racist prosecutors, racist judges, and racist juries will be particularly tough on black defendants. Jessie Jackson, never one to pass up an opportunity to nurse a racial grievance, has expressed this view as follows:


Numerous researchers have shown conclusively that African American defendants are far more likely to received the death penalty than are white defendants charged with the same crime. For instance, African Americans make up 25 percent of Alabama's population, yet of Alabama's 117 death row inmates, 43 percent are black. Indeed, 71 percent of the people executed there since the resumption of capital punishment have been black.


In a more scholarly vein, Leigh B. Bienen has claimed:


There is a whole other dimension with regard to arguments that the death penalty is "racist." The death penalty and the criminal justice system is an institutional system controlled by and dominated by whites, although the recipients of punishment, including the recipients of the death penalty, are disproportionately black. The death penalty is a symbol of state control and it is a symbol of white control over blacks, in fact and in its popular and sensationalist presentations. Black males who present a threatening personae and a defiant personae are the favorites of those administering the punishment, including the overwhelmingly middle-aged white male prosecutors who are running for election or retention or re-election and find nothing gets them more votes than demonizing young black men. By portraying themselves as punishers and avengers of whites who are the "victims" of blacks, prosecutors get a lot of political support.


Thus Bienen adds another element to the mix: a racist public whose bias is translated by those paragons of political incorrectness, middle-aged white males, into harsh punishments for blacks.

            The problems of this view a numerous, but I'll discuss only the most important one: it's empirically just flat wrong. A whole raft of relatively sophisticated studies of the death penalty have been done, and findings of bias against black defendants are rare. Indeed, they are so few that they seem to illustrate the point that if you run a huge number of statistical "coefficients," a few will turn up as "significant" when in fact nothing is there.

            What the studies do show is a huge bias against black victims. Offenders who murder black people get off much more lightly than those who murder whites. Since the vast majority of murders are intraracial and not interracial, this translates into a system that lets black murders off far more easily than white murderers.

            This is clearly unjust, but it leaves open the question of whether the injustice should be remedied by executing nobody at all, or rather executing more offenders who have murdered black people.

            Even more relevant is the question: would doing away with the death penalty improve the situation? Here, as elsewhere, death penalty opponents assume that the choices are a flawed death penalty and a pristine system of criminal justice for every other punishment. But the data don't support that.

            Scholars who study the death penalty often study several decisions in the process that might theoretically lead to execution. What they almost invariably find is large-scale bias in these earlier decisions, including decisions that would continue to be made if the death penalty were abolished. One particularly interesting study (although pre-Furman) was done by Zimring, Eigen, and O'Malley, and dealt with 245 persons arrested for homicide in Philadelphia in 1970. Of these, 170 were eventually convicted of some charge. Sixty-five percent of defendants who killed a white got either life imprisonment or a death sentence, while only 25 percent of those who killed a black did. Since these murders produced only three death sentences (all imposed on blacks who killed whites), most of the apparent racial unfairness involved life imprisonment, not execution. Blumstein, in a study of the racial disproportionality of prison populations, found that in 1991 blacks were underrepresented among prisoners convicted of murder. There were many limitations to Blumstein's study, including failure to control for aggravating circumstances, and a research design what leaves possible racial discrimination in arrests entirely out of account. But his results strongly imply that the system does for imprisonment what it does with regard to executions: underpunish those who kill blacks.

            William J. Bowers, as we have already discussed, found that defendants who killed whites were more likely to be indicted for first degree murder—rather than a lesser charge—and more likely to be convicted for first degree murder than defendants who killed blacks. Along similar lines Radelet, in a study of indictments for murder in Florida, found that 85 percent of the killers of white victims were indicted for first-degree murder, while only 53.6 percent of the killers of black victims were.

            Leigh Bienen and her colleagues, in their study of New Jersey homicides examined the issue of whether a particular case is plea bargained, or whether it goes to trial. Cases involving white victims were found to go to trial more often than cases involving either black or Hispanic victims.

            One particularly interesting study involved prosecutors' decisions to "upgrade" or "downgrade" a homicide. An "upgrade" involved a prosecutor making a charge of a felony connected with the homicide when no such felony was mentioned in the police report. On the other hand, cases were said to be "downgraded" when the police report indicated the commission of a felony, but the prosecutor's charge did not mention it. A statistical model which controlled for the circumstances of the crime and of the offender showed that white victim murders were more likely to be upgraded than black victim murders.

            In sum, the system is relatively lenient toward those who kill blacks, and that leniency extends to decisions that would continue to advantage those defendants who have killed blacks even in the absence of the death penalty. All of this makes perfect sense. If the system is biased toward punishing those who murder whites, it is implausible indeed that decisions leading up to sentencing are made with strict racial fairness, and only the imposition of a death sentence is racially biased. If people want to punish those who murder whites more harshly than those who murder blacks, this is likely to be reflected in prosecutors' decisions to move ahead with a case, in decisions about whether to plea-bargain, in the allocation of staff to a particular case, in the decision to indict on more or less serious charges, and in jury verdicts. Even in sentencing, abolition of the death penalty only narrows the range of possible punishments, rather than eliminating it. While not all decision points have been studied equally well, theoretically the pervasive undervaluing of the lives of black victims ought to be reflected everywhere there is discretion.



It cannot be stressed too strongly that we do not face the choice of a defective system on capital punishment and a pristine system of imprisonment. Rather, nothing about the criminal justice system works perfectly. Death penalty opponents give the impression that the death penalty is uniquely flawed by the simple expedient of dwelling on the defects of capital punishment (real and imagined) and largely ignoring the defects in the way lesser punishments are meted out.

            The death penalty meets the expectations we can reasonably place on any public policy. But it can't meet the absurdly inflated standards imposed by those who are culturally hostile to it. But then, no other policy can either. 


Source: U.S. Senate, Judiciary subcommittee hearing on An Examination of the Death Penalty in the United States (2006). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).


Questions for Review

1. According to McAdams, what is wrong with the innocence list devised by the Death Penalty Information Center?

2. What is McAdams’s assessment of the actual number of innocent people who have been executed?

3. What is McAdams’s position on racial bias in death penalty sentences?


Questions for Analysis

1. McAdams argues that racial bias is no reason to abolish the death penalty any more than racial bias with robbers is a reason to stop punishing robbers. Critically evaluate this argument.

2. According to McAdams, studies show that there is actually a racial bias against white killers, and blacks are punished less severely. What implication if any might this have on whether we should retain the death penalty?