Recent Developments in Capital Punishment

The Federal Death Penalty

In addition to the death penalty laws in many states, the federal government has also employed capital punishment for certain federal offenses, such as murder of a government official, kidnapping resulting in death, running a large-scale drug enterprise, and treason. When the Supreme Court struck down state death penalty statutes in Furman, the federal death penalty statutes suffered from the same constitutional infirmities that the state statutes did. As a result, death sentences under the old federal death penalty statutes have not been upheld.

In 1988, a new federal death penalty statute was enacted for murder in the course of a drug-kingpin conspiracy. The statute was modeled on the post-Gregg statutes that the Supreme Court has approved. Since its enactment, 6 people have been sentenced to death for violating this law, though none has been executed.

In 1994, President Clinton signed the Violent Crime Control and Law Enforcement Act that expanded the federal death penalty to some 60 crimes, 3 of which do not involve murder. The exceptions are espionage, treason, and drug trafficking in large amounts.

Two years later, in response to the Oklahoma City Bombing, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996. The Act, which affects both state and federal prisoners, restricts review in federal courts by establishing tighter filing deadlines, limiting the opportunity for evidentiary hearings, and ordinarily allowing only a single habeas corpus filing in federal court. Proponents of the death penalty argue that this streamlining will speed up the death penalty process and significantly reduce its cost, although others fear that quicker, more limited federal review may increase the risk of executing innocent defendants. (Bohm, 1999 and Schabas, 1997)

International Abolition

In the 1980s the international abolition movement gained momentum and treaties proclaiming abolition were drafted and ratified. Protocol No. 6 to the European Convention on Human Rights and its successors, the Inter-American Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, and the United Nation’s Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, were created with the goal of making abolition of the death penalty an international norm.

Today, the Council of Europe requires new members to undertake and ratify Protocol No. 6. This has, in effect, led to the abolition of the death penalty in Eastern Europe, where only Belarus retains the death penalty. For example, the Ukraine, formerly one of the world’s leaders in executions, has now halted the death penalty and has been admitted to the Council. South Africa’s parliament voted to formally abolish the death penalty, which had earlier been declared unconstitutional by the Constitutional Court. In addition, Russian President Boris Yeltsin signed a decree commuting the death sentences of all of the convicts on Russia’s death row in June 1999. (Amnesty International and Schabas, 1997). Between 2000 and 2004, seven additional countries abolished the death penalty for all crimes, and four more abolished the death penalty for ordinary crimes.

In April 1999, the United Nations Human Rights Commission passed the Resolution Supporting Worldwide Moratorium On Executions. The resolution calls on countries which have not abolished the death penalty to restrict its use of the death penalty, including not imposing it on juvenile offenders and limiting the number of offenses for which it can be imposed. Ten countries, including the United States, China, Pakistan, Rwanda and Sudan voted against the resolution. (New York Times, 4/29/99). Each year since 1997, the United Nations Commission on Human Rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium on executions. In April 2004, the resolution was co-sponsored by 76 UN member states. (Amnesty International, 2004).

Lethal Injection

Lethal injection has been the most common method of execution in the modern era of capital punishment in the United States. Between the resumption of executions in 1977 and August 31, 2018, 1,306 executions (nearly 90%) used lethal injection. When states first turned to using drugs in executions, many did so in the belief that lethal injection would be more humane than the more visibly grue- some methods it replaced: hanging, electrocution, gas, and firing squad. Other states adopted lethal injection to avoid legal challenges to the constitutionality of their prior methods.

Despite states’ purported goal of ensuring more humane executions, scholars have estimated that more than 7% of lethal-injection executions in the U.S. through 2010 were botched. Beginning in 2011, as states have experimented with new execution drugs, reports of problematic executions have noticeably increased. At the same time, states have enacted laws that prevent the public from obtaining information about lethal injection drugs and suppliers. (For more information, see DPIC’s report Behind the Curtain: Secrecy and the Death Penalty in the United States.)