Limiting the Death Penalty

Creation of International Human Rights Doctrines

In the after­math of World War II, the United Nations General Assembly adopt­ed the Universal Declaration of Human Rights. This 1948 doc­trine pro­claimed a ​“right to life” in an absolute fash­ion, any lim­i­ta­tions being only implic­it. Knowing that inter­na­tion­al abo­li­tion of the death penal­ty was not yet a real­is­tic goal in the years fol­low­ing the Universal Declaration, the United Nations shift­ed its focus to lim­it­ing the scope of the death penal­ty to pro­tect juve­niles, preg­nant women, and the elderly.

During the 1950s and 1960s sub­se­quent inter­na­tion­al human rights treaties were draft­ed, includ­ing the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights. These doc­u­ments also pro­vid­ed for the right to life, but includ­ed the death penal­ty as an excep­tion that must be accom­pa­nied by strict pro­ce­dur­al safe­guards. Despite this excep­tion, many nations through­out Western Europe stopped using cap­i­tal pun­ish­ment, even if they did not, tech­ni­cal­ly, abol­ish it. As a result, this de fac­to abo­li­tion became the norm in Western Europe by the 1980s. (Schabas, 1997)

Limitations within the United States

Despite grow­ing European abo­li­tion, the U.S. retained the death penal­ty, but estab­lished lim­i­ta­tions on capital punishment.

In 1977, the United States Supreme Court held in Coker v. Georgia (433 U.S. 584) that the death penal­ty is an uncon­sti­tu­tion­al pun­ish­ment for the rape of an adult woman when the vic­tim was not killed. Other lim­its to the death penal­ty fol­lowed in the next decade.

Mental Illness and Intellectual Disability

In 1986, the Supreme Court banned the exe­cu­tion of insane per­sons and required an adver­sar­i­al process for deter­min­ing men­tal com­pe­ten­cy in Ford v. Wainwright (477 U.S. 399). In Penry v. Lynaugh (492 U.S. 584 (1989)), the Court held that exe­cut­ing per­sons with ​“men­tal retar­da­tion” was not a vio­la­tion of the Eighth Amendment. However, in 2002 in Atkins v. Virginia, (536 U.S. 304), the Court held that a nation­al con­sen­sus had evolved against the exe­cu­tion of the ​“men­tal­ly retard­ed” and con­clud­ed that such a pun­ish­ment vio­lates the Eighth Amendment’s ban on cru­el and unusual punishment.

Juveniles

In the late 1980s, the Supreme Court decid­ed three cas­es regard­ing the con­sti­tu­tion­al­i­ty of exe­cut­ing juve­nile offend­ers. In 1988, in Thompson v. Oklahoma (487 U.S. 815), four Justices held that the exe­cu­tion of offend­ers aged fif­teen and younger at the time of their crimes was uncon­sti­tu­tion­al. The fifth vote was Justice O’Connor’s con­cur­rence, which restrict­ed Thompson only to states with­out a spe­cif­ic min­i­mum age lim­it in their death penal­ty statute. The com­bined effect of the opin­ions by the four Justices and Justice O’Connor in Thompson is that no state with­out a min­i­mum age in its death penal­ty statute can exe­cute some­one who was under six­teen at the time of the crime.

The fol­low­ing year, the Supreme Court held that the Eighth Amendment does not pro­hib­it the death penal­ty for crimes com­mit­ted at age six­teen or sev­en­teen. (Stanford v. Kentucky, and Wilkins v. Missouri (col­lec­tive­ly, 492 U.S. 361)). At present, 19 states with the death penal­ty bar the exe­cu­tion of any­one under 18 at the time of his or her crime.

In 1992, the United States rat­i­fied the International Covenant on Civil and Political Rights. Article 6(5) of this inter­na­tion­al human rights doc­trine requires that the death penal­ty not be used on those who com­mit­ted their crimes when they were below the age of 18. However, in doing so the U.S. reserved the right to exe­cute juvenile offenders.

In March 2005, Roper v. Simmons, the United States Supreme Court declared the prac­tice of exe­cut­ing defen­dants whose crimes were com­mit­ted as juveniles unconstitutional.

Additional Death Penalty Issues

Race

Race became the focus of the crim­i­nal jus­tice debate when the Supreme Court held in Batson v. Kentucky (476 U.S. 79 (1986)) that a pros­e­cu­tor who strikes a dis­pro­por­tion­ate num­ber of cit­i­zens of the same race in select­ing a jury is required to rebut the infer­ence of dis­crim­i­na­tion by show­ing neu­tral rea­sons for the strikes.

Race was again in the fore­front when the Supreme Court decid­ed the 1987 case, McCleskey v. Kemp (481 U.S. 279). McCleskey argued that there was racial dis­crim­i­na­tion in the appli­ca­tion of Georgia’s death penal­ty, by pre­sent­ing a sta­tis­ti­cal analy­sis show­ing a pat­tern of racial dis­par­i­ties in death sen­tences, based on the race of the vic­tim. The Supreme Court held, how­ev­er, that racial dis­par­i­ties would not be rec­og­nized as a con­sti­tu­tion­al vio­la­tion of ​“equal pro­tec­tion of the law” unless inten­tion­al racial dis­crim­i­na­tion against the defen­dant could be shown.

Innocence

The Supreme Court addressed the con­sti­tu­tion­al­i­ty of exe­cut­ing some­one who claimed actu­al inno­cence in Herrera v. Collins (506 U.S. 390 (1993)). Although the Court left open the pos­si­bil­i­ty that the Constitution bars the exe­cu­tion of some­one who con­clu­sive­ly demon­strates that he or she is actu­al­ly inno­cent, the Court not­ed that such cas­es would be very rare. The Court held that, in the absence of oth­er con­sti­tu­tion­al vio­la­tions, new evi­dence of inno­cence is no rea­son for fed­er­al courts to order a new tri­al. The Court also held that an inno­cent per­son could seek to pre­vent his exe­cu­tion through the clemen­cy process, which, his­tor­i­cal­ly, has been ​“the ​‘fail safe’ in our jus­tice sys­tem.” Herrera was not grant­ed clemen­cy, and was exe­cut­ed in 1993.

Since Herrera, con­cern regard­ing the pos­si­bil­i­ty of exe­cut­ing the inno­cent has grown. Currently, 200 peo­ple have been released from death row because of inno­cence since 1973. In November, 1998 Northwestern University held the first-ever National Conference on Wrongful Convictions and the Death Penalty, in Chicago, Illinois. The Conference, which drew nation­wide atten­tion, brought togeth­er 30 of these wrong­ful­ly con­vict­ed peo­ple who were exon­er­at­ed and released from death row. Many of these cas­es were dis­cov­ered not as the result of the jus­tice sys­tem, but instead as the result of new sci­en­tif­ic tech­niques, inves­ti­ga­tions by jour­nal­ism stu­dents, and the work of vol­un­teer attor­neys. These resources are not avail­able to the typ­i­cal death row inmate.

In January 2000, after Illinois had released 13 inno­cent peo­ple from death row in the same time that it had exe­cut­ed 12 peo­ple, Illinois Governor George Ryan declared a mora­to­ri­um on exe­cu­tions and appoint­ed a blue-rib­bon Commission on Capital Punishment to study the issue.

Public Support

Support for the death penal­ty has fluc­tu­at­ed over the past cen­tu­ry. According to Gallup sur­veys, in 1936 61% of Americans favored the death penal­ty for per­sons con­vict­ed of mur­der. Support reached an all-time low of 42% in 1966. Throughout the 70s and 80s, the per­cent­age of Americans in favor of the death penal­ty increased steadi­ly, cul­mi­nat­ing in an 80% approval rat­ing in 1994. By 2018, this num­ber had dropped dra­mat­i­cal­ly with Gallup mea­sur­ing over­all sup­port for cap­i­tal pun­ish­ment at 56%. The same year, 49% of Americans said they believed the death penal­ty was ​“applied fair­ly”, the low­est Gallup has ever record­ed since it first includ­ed the ques­tion in its crime poll in 2000. The per­cent­age of U.S. adults who said they believe the death penal­ty is unfair­ly applied rose to 45%, the high­est since Gallup began ask­ing the ques­tion, and the four-per­cent­age-point dif­fer­ence between the two respons­es was the small­est in the his­to­ry of Gallup’s polling. The poll also found that
the per­cent­age of Americans say­ing that the death penal­ty is imposed too often con­tin­ued to rise and the per­cent­age say­ing it is not imposed enough con­tin­ued to decline. 57% of U.S. adults said the death penal­ty was imposed either ​“too often” (29%) or ​“about the right amount” (28%). By con­trast, in 2010, 18% said the death penal­ty was imposed too often. 37% said the death penal­ty was not imposed enough, down 16 per­cent­age points from the 53% lev­el who in 2005 said it was not imposed enough. (See also, DPIC’s report, Sentencing for Life: American’s Embrace Alternatives to the Death Penalty)

Religion

In the 1970s, the National Association of Evangelicals (NAE), rep­re­sent­ing more then 10 mil­lion con­ser­v­a­tive Christians and 47 denom­i­na­tions, and the Moral Majority, were among the Christian groups sup­port­ing the death penal­ty. NAE’s suc­ces­sor, the Christian Coalition, also sup­ports the death penal­ty. Today, Fundamentalist and Pentecostal church­es sup­port the death penal­ty, typ­i­cal­ly on bib­li­cal grounds, specif­i­cal­ly cit­ing the Old Testament. (Bedau, 1997). The Church of Jesus Christ of Latter-day Saints regards the ques­tion as a mat­ter to be decid­ed sole­ly by the process of civ­il law, and thus nei­ther pro­motes nor oppos­es capital punishment.

Although tra­di­tion­al­ly also a sup­port­er of cap­i­tal pun­ish­ment, the Roman Catholic Church now oppose the death penal­ty. In addi­tion, most Protestant denom­i­na­tions, includ­ing Baptists, Episcopalians, Lutherans, Methodists, Presbyterians, and the United Church of Christ, oppose the death penal­ty. During the 1960s, reli­gious activists worked to abol­ish the death penal­ty, and con­tin­ue to do so today.

In recent years, reli­gious orga­ni­za­tions around the nation have issued state­ments oppos­ing the death penal­ty. Complete texts of many of these state­ments can be found at www​.death​penal​tyre​li​gious​.org.

Women

Women have, his­tor­i­cal­ly, not been sub­ject to the death penal­ty at the same rates as men. From the first woman exe­cut­ed in the U.S., Jane Champion, who was hanged in James City, Virginia in 1632, to the present, women have con­sti­tut­ed only about 3% of U.S. exe­cu­tions. In fact, only 18 women have been exe­cut­ed in the post-Gregg era. (Shea, 2004, with updates by DPIC).