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Traditionally, the use of capital punishment, also known as the death penalty, has been one of many polarizing social issues in the United States. Proponents of the death penalty argue that it deters crime and provides victims’ families closure, while opponents say it constitutes “cruel and unusual punishment” and thereby violates the Eighth Amendment. Currently, thirty-two American states still have the death penalty, but public support for the death penalty is falling and the rate of executions is slowing. Oklahoma’s recently “botched” execution of Clayton D. Lockett by lethal injection has the potential to reignite the American death penalty debate and extempers should be prepared to discuss the constitutionality and future of the American death penalty at upcoming tournaments.
This topic brief will provide some important background information on the death penalty in the United States, highlight the arguments used by supporters and opponents of capital punishment, and summarize the current debate over the constitutionality of lethal injection, the preferred method of execution by all states that have the death penalty.
Readers are also encouraged to use the links below and in the related R&D to bolster their files about this topic.
Background on Capital Punishment in the United States
Extempers interested in the legal and social history of capital punishment in the United States are encouraged to read Stuart Banner’s 2002 work The Death Penalty: An American History.
From the time that civilizations first emerged in the river valleys of Mesopotamia, Egypt, India, and China, capital punishment has been used to maintain order. The Atlantic on May 6th postulates that the used of the death penalty might be tied to human evolution. Since human know they need to work together to ensure long-term survival they seek to punish those who try to undermine this cooperation and try to “cheat” the system to get a short-term survival advantage over others. Executions in the early periods of human civilization were often brutal and public, which allowed governments to demonstrate their power. This public display of executions carried into medieval and early modern Europe, where painful punishments like breaking on the wheel and hanging, drawing, and quartering someone (a punishment depicted in the Mel Gibson film Braveheart) took place.
When America was colonized, the death penalty was imported with the new inhabitants, but Northern and Southern colonies differed in what crimes were deemed “capital offenses” (which meant that they carried the death penalty). Northern colonies, due to their Puritan leanings, tended to make crimes like blasphemy, witchcraft, and adultery capital offenses, whereas Southern colonies, which were largely aristocratic in nature, assigned property crimes capital status. It is important to note that in the colonial period, one could be executed for a larger range of offenses than today, where forty-one crimes carry the death penalty (largely tied to murder and treason). This was partly due to the fact that penitentiary systems were not yet in existence and the goal of imprisoning someone was not to reform them. These changes would have to await the Second Great Awakening in the early nineteenth century.
Like Europe, American executions took place in public. Executions were public spectacles where thousands of people would gather to see the condemned receive their assigned punishment and hear their last words. These executions often served as moral instruction for young members of the audience, who attended executions with their parents. The condemned would often speak for more than twenty minutes about where they went wrong and urging young people and other community members not to follow their ways. However, by the nineteenth century there was a gradual shift away from making executions public spectacles. Reformers noted that young children should not be present at executions and they chastised budding entrepreneurs who set up booths to serve lemonade, poems about the condemned, food, and other trinkets to execution watchers. Some audience members at executions also got into fights with others or became drunk, which undermined moral purpose of holding a public execution. In 1824, Pennsylvania became the first state to hold private executions, but public executions did not officially stop until the twentieth century. In 1936, Owensboro, Kentucky was the site of the last public execution in American history when it hung Rainey Bethea, an African-American man convicted of rape and murder. An estimated crowd of 20,000 attended Bethea’s execution and after Bethea was dropped from the gallows, the mob proceeded to rush his body and tear off his clothing and the hangman’s hood to get a souvenir of the occasion. The behavior of the crowd before and after the execution ratified reformers arguments about why public executions were a bad idea and another one was never held in the United States again (this excludes extralegal lynchings that took place in the U.S. until the 1960s).
Federalism allowed American states to experiment with various methods of capital punishment. Since the nineteenth century, states looked for an execution method that would kill the condemned prisoner, while reducing their suffering. This ties into an Enlightenment principle that existed in Europe prior to America’s founding whereby torture and cruel punishments were criticized. The goal to reduce suffering was also an effort to comply with the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Hanging was the method of execution in America’s colonies and states until 1890, when the first electric chair execution was carried out at New York’s Auburn Prison. The first gas chamber execution took place in Nevada in 1924 and lethal injection, whereby an inmate was injected with three drugs to put them to sleep, stop their breathing, and stop their heart, debuted in Texas in 1982. Other states, like Utah and Oklahoma, allow for firing squad. Lethal injection has now become the primary method of execution for the thirty-two states that currently have the death penalty after concerns were raised about the pain inflicted by the electric chair and gas chamber (both methods also had their share of messy executions). The use of gas chambers by Nazi Germany in the Holocaust also hastened the end of the gas chamber as a preferred method of execution by some U.S. states.
Extempers should be aware that capital punishment was once prohibited in the United States due to a Supreme Court ruling in 1972. That case, Furman v. Georgia, saw the U.S. Supreme Court decide 5-4 that the use of capital punishment by the states was “arbitrary and inconsistent” and was therefore in violation of the Eighth Amendment. The issue in Furman concerned the inconsistent application of the death penalty as states differed in assigning certain crimes capital status. The Supreme Court was also concerned in Furman with Georgia’s “unitary trial” procedure where a jury not only decided whether a defendant was innocent or guilty, but also their sentence, which could be life or death (this was in contrast to today’s legal procedures where guilt or innocence is determined before moving to a penalty stage). However, although the Supreme Court found that the application of capital punishment in Furman violated the Eighth Amendment, it stopped short of declaring the practice unconstitutional. As a result, America had a moratorium (a time when an activity is not allowed) on capital punishment for four years. The Furman decision also reduced all death sentences to life sentences, which is why Charles Manson and Sirhan Sirhan (the killer of Robert Kennedy) were never executed. In 1976, the Supreme Court lifted its moratorium on the death penalty in Gregg v. Georgia when it found that Georgia’s move to a bifurcated trial system that separated guilt-innocence and sentencing phases was constitutional. Between 1972 and 1976 states had also enacted statutory reforms that made mandate death sentences for certain crimes, which made the application of the death penalty less arbitrary. The decision in Gregg was 6-3.
Although the U.S. Supreme Court removed its moratorium on the death penalty, it has continued to tinker with its application by the states since that time by finding that certain crimes cannot carry a death sentence. In 1977, the Court ruled in Coker v. Georgia that rape was not a capital offense. In Atkins v. Virginia in 2002, the Court ruled that mentally deficient individuals with an IQ below seventy could not be executed. Between 1984 and 2002, forty-four mentally deficient inmates were executed in the U.S. including Rickey Ray Rector in Arkansas in 1992. The Rector case was notable because it occurred when Bill Clinton was governor of Arkansas and in the midst of his presidential campaign. Not wanting to be perceived a soft on crime, which was something that brought down Massachusetts Governor Michael Dukakis in 1988, Clinton refused to grant clemency and angered several liberal groups in the process. The Court’s last limitation on the death penalty took place in 2005, when it ruled in Roper v. Simmons that juveniles (those under the age of eighteen) could not be sentenced to death.
Currently, thirty-two American states have the death penalty, but some of these states, like New Hampshire, have not executed anyone in decades (New Hampshire last executed someone in 1939) and The Economist of April 26th adds that six states – New Jersey (2007), New York (2007), New Mexico (2009), Illinois (2011), Maryland (2013), and Connecticut (2013) – have abolished the death penalty since 2007. Polls show that a majority of Americans still favor the death penalty. The Huffington Post on May 5th reports that its HuffPost/YouGov poll found that 65% of Americans support the death penalty for convicted murders, with 82% of Republicans, 66% of independents, and 53% of Democrats supporting the practice. Other polls change some of the Huffington figures, but arrive at the same conclusion. The Week on March 5th reports that an October 2013 Gallup poll placed support for capital punishment at 60%, which is the lowest level of support the practice has received in forty years. A Pew Research Center poll taken in March found that 55% of Americans support the death penalty. The demographic data in these polls reveal that whites support the death penalty by wider margins that African Americans and Latinos, with 63% of whites in the Pew poll supporting capital punishments versus 40% of Latinos and 36% of African Americans. Conservatives are also more likely to support the death penalty than liberals.
Finally, Texas executed more inmates than any other state. The Economist on April 26th explains that since 1976, Texas has carried out 37% of America’s executions. In fact, four states – Texas, Virginia, Oklahoma, and Florida – are responsible for 60% of the executions held since 1976. In addition, fifteen counties are responsible for 30% of the executions since the Supreme Court ended its moratorium on the death penalty. Therefore, although thirty-two states have the death penalty, very few use it and only a handful of states are driving America’s execution totals.
Arguments For and Against Capital Punishment
Advocates for the death penalty largely make a social contract-type argument, which is refuted by opponents of the practice. This is explained in The Washington Post on May 1st. Death penalty supporters assert that when an individual commits a violent crime against another individual in society they have given up their right to live. As a result, the state is completely justified in executing that individual. Death penalty opponents disagree and argue that an individual in a social contract cannot give up their right to life to the state. If one believes the words of John Locke, which were incorporated into the Declaration of Independence, the right to life in “inalienable,” meaning that it cannot be taken away by another individual or the state. Thus, the state executing an individual is nothing more than “state-sanctioned homicide” in the eyes of death penalty opponents and the state is going beyond its responsible role when it decides to execute criminals. As an addendum to the opposition argument here, it should be noted that when an inmate is executed their death certificate says that “homicide” is the cause of their death.
The ability of the death penalty to deter crime is another front where proponents and opponents of the punishment clash. Those that favor the death penalty argue that criminals will not commit heinous crimes because of the possibility of being sentenced to death and that the death penalty saves lives. Opponents insist that criminals are not completely rational individuals and are not deterred at all by the presence of the death penalty. They also point out that there is one execution held for every 345 murders committed, so if there is a deterrent effect it is very low. Just like the debate over gun control, there are statistical studies that support both sides of the argument and the methodologies of those studies have come under criticism from both sides of the political aisle. The Economist article previously cited from April 26th notes that countries in the European Union (EU) do not have the death penalty and their homicide rate is lower than the U.S. average. Also, states that have the death penalty actually have higher homicide rates than states that do not. While this might seem like clear-cut evidence of the lack of the death penalty’s deterrent effect, supporters of the death penalty argue that there are different demographics (race, religion, culture) at play in each state and country, which can account for some of the difference in homicide rates.
An argument made by death penalty opponents is that the use of the death penalty is more expensive than deciding to incarcerate an individual for life. Statistical evidence makes this very clear and The Economist article cited from April 26th explains that executing an individual costs three times as much as housing an inmate for life. What accounts for the expense of a death row inmate is that they usually have their own cells, are watched by more guards, and they get more expensive and better skilled defense attorneys (paid for by the state) to facilitate their appeals. The large number of appeal opportunities given to death penalty inmates is why the average wait time for a death row inmate is more than a decade. This also creates a great deal of “court clog” as inmate appeals get tied in with other criminal cases and stacks the dockets of state and federal circuit courts. Death penalty supporters counter this argument by insisting that murders should not be allowed to receive housing, food, and entertainment at taxpayer’s expense until they die of old age. The Week on May 1st adds that a large number of death row inmates are sick individuals that cannot be rehabilitated and released back into society. Locking people up for life without parole also means that these individuals have no reason not to harm corrections officers and other inmates and putting someone in solitary confinement for a lengthy period of time can produce psychological problems, which border on “cruel and unusual punishment.”
The death penalty has also been attacked for its racial bias. The Guardian on May 1st points out that although African Americans are 13% of the U.S. population, they constitute 42% of death row inmates. Opponents of the death penalty argue that prosecutors and juries are more likely to condemn an African American to death than a white defendant. Additionally, African American defendants tend to be poorer and have to rely on public defenders, who are overworked and ill-equipped to mount an effective defense on their behalf. Supporters of the death penalty refute this argument and note that African Americans are a larger share of the American prison population and commit more violent crimes as a percentage of their demographic than other racial groups, which is why they constitute a larger share of the death row population. Concerns about racial bias and the death penalty is one of the reasons that minorities express lower levels of support for the death penalty than their white counterparts.
Finally, there is a question about whether there are innocent people on death row. Although there is no clear evidence to suggest that an innocent person has been executed since 1976, there are questions about some death sentences and inmates have been exonerated while awaiting execution. The Economist in a separate article on April 26th explains that Cameron Todd Williams, who was executed in 2004 for setting his house on fire and killing his three daughters, may have been innocent of the crime. There are questions about whether arson investigators bungled the case and if faulty wiring may have been to blame for the time. Additionally, an inmate that testified that Williams confessed to him behind bars later recanted his testify (although he then recanted this and backed up his original statement in court). The Pew Research Center on April 30th notes that the fear of executing an innocent person has become a larger public concern over the last two decades, as 27% of death penalty opponents now use it as a reason to stop the practice versus 11% of death penalty opponents that thought it was a convincing reason in the 1990s. Furthermore, the National Registry of Exonerations has reported that 106 people have been released from death row because they were not responsible for the crimes they have committed and The Economist from April 26th argues that the number is 144 since 1973. The Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, has campaigned since 1992 to release wrongfully convicted inmates through DNA testing. The Project has raised public awareness about gaps in the criminal justice system. The Los Angeles Times of May 7th writes that a recent study by the Proceedings of the National Academy of Sciences concluded that at least 4% of death row inmates are likely innocent. However, supporters of the death penalty argue that the criminal justice system is working as it was intended to, which is why wrongfully accused death row inmates have been released before execution. They insist that until it is proven than an innocent person has been executed in the modern era then the death penalty should continue.
Some supporters and opponents of the death penalty have tried to work together in recent years and one of these groups is the Constitution Project. The Project is bipartisan and some of its notable leaders are Mark White, a former Democratic governor of Texas, and Mark Earley, a Republican and former attorney general of Virginia. The Constitution Project recently released a 208-page report that calls for thirty-nine reforms that would improve the application of the death penalty. Politico on May 7th writes that some of these include ensuring better legal representation for defendants that are facing a possibly death sentence for their crimes and eliminating legal obstacles to overturning a death sentence when evidence of innocence emerges. The Los Angeles Times on May 6th writes that the report also calls for new federal standards for forensic labs and examiners and that these labs should operate independently from law enforcement. It is unclear if all of the reforms sought by the Constitution Project will come to fruition, but I encourage all extempers to print the Project’s report for use in future rounds on the death penalty because it gives a great blueprint for improving the application of the death penalty.
Lethal Injection: The Final Battle?
As stated earlier in this brief, lethal injection is the primary method of execution in all of the thirty-two states that use the death penalty. The justification for lethal injection was that it would be a quick and painless way to kill an inmate in contrast to hanging (where sometimes the drop from the gallows was not sufficient to break the neck of an inmate instantly and they were strangled by the rope), electric chair (which sometimes required multiple shocks of electric current when a first wave of electricity failed to kill its victims and/or caused some executed prisoners to catch on fire), and gas chamber (where there were ugly scenes of inmates convulsing and foaming at the mouth). The Global Post on May 7th notes that the United States was the first country to adopt lethal injection as a form of capital punishment and
The lethal injection process historically involved a three-drug cocktail: sodium thiopental, which caused the inmate to become unconscious; pancuronium bromide, which would stop the inmate’s breathing; and potassium chloride, which would stop the inmate’s heart. These drugs were usually imported from the European countries, but in 2011 the European Commission forbade EU countries from exporting these drugs and other potentially lethal barbiturates to the United States on the grounds that they could be used as a form of capital punishment. The Atlantic on May 1st points out that the EU’s foreign policy chief Catherine Ashton has publicly stated that one of the goals of the export ban was to hasten the end of capital punishment around the world. That same year, the sole U.S. manufacturer of sodium thiopental quit making the drug because they feared the damage it might do to their business in Europe.
Without the necessary drugs to conduct lethal injections, U.S. states turned to compounding pharmacies, which are smaller drug firms that try to create drugs from existing ingredients. These drugs are supposed to mirror the effects of the banned drugs required for lethal injection, but their use has been controversial to say the least. In January, Ohio executed convicted murderer Dennis McGuire with experimental drugs, but it took him twenty-five minutes to die. That same month, Oklahoma executed Michael Wilson with experimental drugs and Wilson’s last words were that he felt his entire body was burning. The Los Angeles Times on May 7th writes that Oklahoma, Missouri, and Texas have passed laws barring the disclosure of the drugs used in lethal injections, which does not enable defense attorneys to argue that these drugs cause excessive pain and violate the Eighth Amendment. These states have justified their laws by saying that if the drugs were disclosed they might face domestic and/or international pressure to stop making them or selling them, which would inhibit the ability of executions to be carried out. According to The Washington Post on May 8th, the inability to acquire needed drugs has brought executions to a standstill in states like California, North Carolina, Arkansas, and Kentucky, where courts have imposed moratoriums on lethal injections until new procedures and guidelines are crafted.
The incident that recently galvanized death penalty opponents was Oklahoma’s execution of Clayton D. Lockett several weeks ago. After a lengthy legal battle, Oklahoma’s Supreme Court allowed Lockett to be executed with experimental drugs and denied the defense’s petition that the drugs used in the execution be made public. After the drugs were administered to Lockett, he reportedly shook uncontrollably and then gasped and grimaced for thirty minutes. At this time, state officials drew the curtains for those witnessing the execution, and Lockett reportedly died of a heart attack ten minutes later. The Christian Science Monitor on April 30th reports that the injection of the drugs into Lockett may have been the problem because during the execution, officials struggled to find a usable vein. Evidence suggests that a collapsed vein caused a problem during the execution because it did not allow the drugs to flow smoothly through Lockett’s body. The Associated Press on May 2nd writes that Lockett may not have received sufficient doses of the drugs to kill him in a timely fashion as a doctor allegedly checked Lockett’s IV line and reported that not enough drugs were being administered. Following the messy Lockett execution (it is not necessarily correct to argue that the execution was “botched” because Lockett did die), Oklahoma Governor Mary Fallin ordered an investigation and the execution of Charles Warner, who was set to be executed on the same day as Lockett, which would have been Oklahoma’s first double execution since 1937, has now been delayed for six months. President Obama also called for the Justice Department to examine how executions are being carried out and said that the execution was “deeply troubling” to him. The Lockett execution is likely to provide ammunition to defense lawyers who argue that executing an inmate with experimental drugs could produce unwarranted pain and suffering and violate the Eighth Amendment. It will also strengthen their arguments for why states should be forced to disclose what drugs they are using for the executions. Either of these challenges, if successful, could halt lethal injection executions in the United States and bring down the American death penalty.
Now, extempers might wonder why states cannot move away from a three-drug cocktail of drugs and opt for an overdose of an illicit drug or go to a single drug method. This is possible and, in fact, the Constitution Project is calling for moving to a single drug system. However, this switch may not completely survive judicial muster. The Supreme Court ruled that lethal injection was constitutional in the 2008 case of Baez v. Rees, but, and this is very important, the Court held that the three drug method of lethal injection was constitutional. As a result, single drug methods could come under legal challenge and the Supreme Court may be forced to evaluate whether a single drug method is constitutional. If the Court ruled that it was not, then that method of lethal injection would not be permissible and that could complicate the implementation of lethal injection. Fighting the litigation to the Supreme Court would also further delay the execution of condemned criminals.
Extempers may also wonder why states that have other execution methods at their disposal do not go to them. The Death Penalty Information Center has a list of the various execution methods still employed by American states. While all of them default to lethal injection, inmates that are sentenced before a certain point in time have the option of being executed by another method. Oklahoma is interesting in that firing squad is the fallback if the Supreme Court ever finds lethal injection and electrocution as unconstitutional. In light of the EU’s drug exportation ban, which critics argue is causing nasty executions like Lockett’s, thereby making the EU a facilitator of the cruel and unusual punishments it is supposedly against, some states like Missouri have entertained the idea of going to firing squad or reverting to gas chamber. The problem with all of this is that it also may face a judicial challenge and a public opinion problem. Most Americans that support the death penalty favor lethal injection and support is less than 50% for other methods (as the HuffPost/YouGov poll previousy cited in this brief explains). A state trying to eliminate lethal injection and shift to electrocution, gas chamber, hanging, or firing squad would likely invite a legal challenge that they were not seeking to execute inmates in the most painless way possible. Although the Supreme Court has never found any of these methods unconstitutional (the Ninth Circuit Court of Appeals did rule several decades ago that California’s use of the gas chamber violated the Eighth Amendment in 1995, but the Supreme Court vacated that decision due to the state switching to lethal injection), that could change, especially due to the fact that nearly all of the inmates executed by lethal injection did not suffer the pain Lockett went through. States could adopt a new execution method requested by researchers: nitrogen asphyxiation, whereby an inmate would have nitrogen pumped into a gas chamber, pass out in a “gleeful high,” and die of oxygen deprivation. However, the method has never been used on a human inmate (although air pilots and airline passengers have experienced hypoxia and died) and building a new gas chamber in all thirty-two states would stretch public funds at a time when there is little money to go around. Additionally, the use of lethal gas would be controversial due to its historical attachment to the Holocaust. The use of nitrogen might also offend some victims’ rights groups, who would not want a condemned inmate to enjoy a few blissful minutes on Earth before dying.
In closing, the death penalty debate remains a very charged and controversial subject. Extempers should be aware that the death penalty arouses the passions of many judges, so if you opt to argue against the death penalty your approach to the round requires that one recognize both the condemned inmate and their victims. One of the problems with the media’s coverage of the Lockett case is that they played up his suffering while discounting that of his victim, who Time points out on May 3rd was burglarized, kidnapped, and shot in 2000. Lockett’s victim was also buried alive by his friends. Arguing against the suffering of a condemned criminal is unlikely to score points, especially if you draw a death penalty supporter as a judge. What can work, though, is pointing out the systematic flaws (racial, socioeconomic, judicial) in the existing death penalty system and explaining why the costs of the process and the questions about its deterrent capability complicate its continued use. If you opt to argue for the death penalty, I highly suggest looking into existing deterrence research on the subject and framing your analysis within the confines of the social contract. Having a good basis in the case law about the death penalty can also prove beneficial, as you can point out that there is no clear-cut evidence that an innocent person has been executed since 1976 and that the Supreme Court has never found any modern method of execution unconstitutional.