by Dr. Andrew D. Moran
London Metropolitan University
American Politics Group Annual Conference
St. Anne’s College, University of Oxford
E-mail: a.moran@londonmet.ac.uk


Introduction

Since the Supreme Court ruling of Gregg v. Georgia, 428 U.S. 153, in 1976, which reinstated the use of the death penalty, 1,136 Americans have been executed in the United States. 1 The beginning of the 21st Century, however, has seen a notable decline in the number of people sentenced to death and the number of inmates who are actually executed. The end of 2007 witnessed a de facto moratorium on executions that would last until 16 April 2008. This was in response to the Supreme Court examining whether the protocol surrounding the use of lethal injection in Kentucky was unconstitutional. A further Supreme Court case in 2008 would place limitations on capital punishment, restricting its use to murder or crimes committed against the state.

State action also challenged the death penalty. At the beginning of 2007, there were 38 states with the death penalty. By the end of the year, New Jersey had abolished capital punishment, and New York’s death penalty statutes had been allowed to lapse, reducing the number of states to 36. In February 2008, the Supreme Court of Nebraska would rule the use of electrocution as the preferred method of execution as unconstitutional. To date it has not approved a replacement. Then in December 2008, spurred on by the success in New Jersey, a commission in Maryland recommended that the death penalty be abolished in the state.

According to Richard Dieter, Executive Director of the abolitionist pressure group the Death Penalty Information Centre (DPIC), there is a ‘broad consensus for change’ in the USA. 2 It is the purpose of this paper to examine developments in 2008 and to consider whether Dieter’s optimism, and that of others in the abolitionist movement, is justified.


Death Penalty Statistics

In 2008, 37 executions took place – five less than in 2007 and the lowest number since 1994 when there were 31 executions. This fall continued a downward trend that began after the peak of 98 executions in 1999. 3


Source: ‘Facts About the Death Penalty’, Death Penalty Information Centre,
8 December 2008.


Last year, the number of states carrying out the death penalty also fell slightly to nine, of which only Ohio was from outside the south. This was one less state than in 2007, and five less than in 2001. In 2007, the South accounted for 86% of executions, with 62% in Texas, a regional bias that continued in 2008 when the South accounted for 95%, with almost half in Texas.

According to the Bureau of Justice Statistics in 2007 there were 115 death sentences, representing a drop of over 60% in death sentencing in the last ten years. 4 DPIC research estimates the figure for 2008 fell to 111, the lowest number of inmates received under sentence of death since the death penalty was reinstated in 1976, and continuing a downward trend since 2001.

As the number of death sentences falls, so the number of those exonerated increases. Since 1973, 130 innocent people have been released from death row, and the trend appears to be for more to be released in the future as new technologies, notably advances in DNA evidence, increasingly undermine initial sentences. From 1973-99, there were 3.1 exonerations per year. Since 2000, that figure has risen to an average of 5 per year. 5 Last year was no exception, with four people being exonerated. All four were members of a racial minority, with an average of fourteen years separating conviction and exoneration. 6

Though there has been a been a significant decline across the country in the number of death sentences passed, this has not been the case with the federal death penalty, where the average number of death sentences has actually grown. 7 This, in part, is the result of the number of death penalty offences being increased significantly by Congress in 1994 from one to over 50 combined with a more aggressive enforcement policy being pursued by the Bush Administration. 8 In June 2001 the first federal executions since 1963 took place when Timothy McVeigh and Juan Garza were put to death, and a third federal prisoner, Louis Jones Jr, was executed in March 2003. All were found guilty of murder. 9 There are currently 55 prisoners on federal death row.

2008 would also witness the first scheduled military execution for 47 years. 10 The prisoner was Private Ronald Gray who was convicted of two murders and five rapes in 1988 and had been on the military’s death row at Fort Leavensworth, Kansas since then. Though Gray had had an appeal turned down by the Supreme Court in 2001, and President Bush had approved the death sentence in July 2008, the U.S. District Judge Richard Rogers of Kansas granted a stay of execution on 26 November, to allow Gray to pursue a federal appeal. Under federal law, Gray has a year from the moment his death penalty was made final to file an appeal. It is the first time the US military has actively pursued an execution of a military prisoner since President Kennedy commuted a death sentence in 1962. 11 The last military execution was in 1961, when Private John Bennett was hanged for raping and attempting to kill an 11-year-old Austrian girl. There are nine men currently on military death row. 12


Public Opinion

Public support for the death penalty has remained relatively consistent since 2001. This is in stark contrast to the period from 1972 to 2001, during which public support for the death penalty for those convicted of murder rose from a low of 57% in 1972 to a peak 80% in 1994, after which it began to decline before stabilizing in 2001. 13

A Gallup Poll conducted in February 2001 found that when Americans were asked ‘Are you in favor of the death penalty for a person convicted of murder?’ 67% of respondents replied ‘yes’, with 25% ‘no’ and 8% having ‘no opinion’. In October 2007, 69% of Americans responded ‘yes’. 14 In October 2008, the same question saw a slight fall in favour of the death penalty to 64%, with 30% opposing. 15 This was lower than the highs of the 1980s and 1990s, when support averaged 75%, and is close to the figures polled when the death penalty was reintroduced in 1976.


Source: ‘Americans Hold Firm to Support for Death Penalty’, Lydia Saad,
Gallup News Service, 17 November 2008.

Perhaps the most important trend identified by opinion polls in recent years, and one that has given impetus to the abolitionist movement, concerns the issue of life imprisonment without parole. Since 2001 the numbers favouring the death penalty have fallen and the numbers favouring life imprisonment have risen. When Gallup asked in February 2001, ‘If you could choose between the following two approaches, which do you think is the better penalty for murder – the death penalty or life imprisonment, with absolutely no possibility of parole’, 54% favoured the death penalty and 42% life imprisonment. By May 2006 (the most recent time Gallup asked this question) the numbers favouring the death penalty fell to 47% and the number favouring life imprisonment increased to 48%. 16 For the first time more Americans favoured imprisonment to execution. This suggests that if the public are given a workable alternative to the death penalty, they will consider it.


State challenges to the death penalty

Many abolitionists believe that the movement in American public opinion towards favouring life without parole may be the most productive route to ending the death penalty in the USA. Recent events suggested additional alternatives. For a long time it was assumed that executing a prisoner was more cost-efficient that imprisoning a murderer for life. Now, that appears not to be the case. According to The Economist, the fear of putting the wrong person to death has caused death penalty appeals to grow longer and costlier. 17 It is this growing cost in an age of economic downturn when state budgets are tightened, and how this impacts on taxpayers, which might give the abolitionists a new line of attack.

In 2003, The Times Union estimated that the cost of the death penalty in New York since 1995 (when it was reinstated) was $160 million, or $23 million for each person sentenced. No one was executed during this period. 18 In December 2003, the Kansas Performance Audit Report found that capital cases were 70% more expensive than comparable non-capital cases, including the costs of incarceration. It found that the investigation costs for death sentence cases were 3 times greater than non-death cases, the trial costs 16 times greater, and the appeal costs 21 times greater. 19 In 2005 the Los Angeles Times estimated that the death penalty cost California $114 million per year more than the cost of keeping similar inmates in prison for life. The Times concluded that Los Angeles taxpayers were paying more than $250 million for each of the state’s executions.20

Evidence suggests that as a result of these spiralling costs, some states are executing fewer inmates, particularly where they have tight state budgets. For example, in 2007 Georgia delayed the trial of Brian Nichols, who, during his trail for rape, shot the judge and two others in court in front of a large number of witnesses. Though the evidence against Nichols was strong, the state could not afford to pay his defence lawyers. 21 Furthermore, when Nichols finally went to court in 2008, he was sentenced to life without parole when the jury could not unanimously decide on the imposition of the death penalty. 22

On 23 April, 2008, after eight years and millions of dollars spent, the New Mexico chief prosecutor dropped capital charges against Reis Lopez and Robert Young, both accused of murdering a prison guard, Ralph Garcia, during a prison riot in 1999. The court issued its directive after the state legislature had failed to allocate more money to the court-appointed lawyers office. The court had asked the state legislature to allocate a further $200,000 dollars to the office after lawyers defending Lopes and Young complained about a lack of money to meet their fees. The state legislature refused. Said Gail Chasey, a New Mexico lawmaker, ‘We have declining revenues and have to balance the budget.’ 23 As a result, the State Supreme Court unanimously ruled that death penalty prosecutions would have to be abandoned. The unprecedented decision to drop capital charges on costs grounds suggests that New Mexico prosecutors may not press for the death penalty in future.

A similar situation occurred in Utah where the State Supreme Court warned that death penalty sentences could not be pursued unless the legislature provided adequate funding to represent indigent defendants. 24

The California Commission on the Fair Administration of Justice, set up by the state Senate to recommend improvements in the criminal justice system, concluded in July 2008 that the administration of the death penalty in the state was ‘dysfunctional’ and ‘close to collapse’, partly because of inadequate funding. 25 The Commission noted that the lengthy sentencing and appeals process had resulted in the average length of time from death sentence to execution in California being 20 to 25 years, as opposed to the national average of 12 years. Though the Commission did not recommend abolishing the death penalty, it did note that California could save $100 million a year if the state replaced the punishment with life imprisonment without parole. Furthermore, it argued a large amount of money was needed for significant improvements to occur. The Commission concluded that to reduce the backlog of cases alone would require almost doubling spending on investigators and lawyers, trimming the offences that qualify for the death penalty, or sentencing those subject to the death penalty to life imprisonment without the possibility of parole.

It was cost that the Democratic Governor of Maryland, Martin O’Malley, (D), used in his attempt to abolish the death penalty in his state at the beginning of 2007. Appealing to the voters of Maryland, O’Malley noted that since 1978 Maryland had sentenced 56 people to the death penalty, which equalled approximately $22.4 million more than the cost of imprisonment, or $4.5 million dollars for each of the five executions carried out by the state. Said O’Malley, ‘If… we were to replace the death penalty with life without parole, that $22.4 million could pay for 500 additional police officers or provide drug treatment for 10,000 of our addicted neighbours. Unlike the death penalty, these are investments that save lives and prevent violent crimes.’ 26 O’Malley failed in his bid in February 2007 when a state Senate committee tied at five votes each, preventing the bill from advancing to the floor. 27
In the wake of the abolition of the death penalty in New Jersey at the end of 2007, however, opponents of the death penalty in Maryland were reinvigorated. Rather than bringing the issue to a vote in the Senate, they created a commission in 2008 to review the use of the death penalty in the state.

The Maryland Commission on Capital Punishment consisted of 23 members drawn from a broad range of backgrounds, including police officers, correctional officers, family members of murder victims, prosecutors and defence attorneys, and an innocent Maryland man who had been sentenced to death and later exonerated. 28

On 12 November 2008, after hearing over 35 hours of testimony over five months, the Commission voted 13-9 to recommend the abolition of the death penalty in the state. At a press conference, the Chair of the Commission, Benjamin Civiletti, a former US Attorney General under Jimmy Carter, noted that though he did not oppose the death penalty on moral grounds, he supported the Commission’s findings because of the cost of the death penalty, the potential for an innocent person to be mistakenly executed, the geographical and racial disparities in its use, and the lack of persuasive evidence to support the argument that the death penalty acted as a deterrent against murder in Maryland. 29 Supporting the Commission’s recommendations, Governor O’Malley noted that in 2008 the state was on course to significantly reduce homicides, even though it had not executed anyone since December 2006. Concluded O’Malley, “The death penalty had absolutely nothing to do with that lifesaving and life-guarding process.” 30

Supporting the report, The Washington Post urged states lawmakers in Maryland to ‘heed the march of history’ and ‘have the courage and the wisdom to abolish this increasingly obsolete and barbaric penalty.’31 A General Assembly vote on abolition is expected in early 2009.


The Supreme Court And The Death Penalty

Though cost and the events in New Jersey, New York and Maryland highlight the possibilities for change at the state level, for many the route to abolition still remains through the court system and, in particular, the Supreme Court. Here, it is worth noting that the Supreme Court did suspend the death penalty in 1972, in the case of Furman v. Georgia, 408 U.S. 238 (1972). The five to four vote in this case saw the Supreme Court rule that the death penalty constituted a cruel and unusual punishment because states were imposing it in an arbitrary or discriminate manner, with several justices expressing the view that race appeared to be the single factor determining who was selected for capital punishment and who was not. As such, it contravened the Eighth Amendment. 32

Part of the argument made by the Court was that state statutes failed to effectively balance the need to ensure consistency in capital sentencing with the need to ensure fairness in individual cases. In response, states sought to address the imbalance, resulting in the Supreme Court overturning Furman v. Georgia in 1976 with the case of Gregg v. Georgia, 428 U.S. 153 (1976), when it upheld the new death penalty statutes. 33 This was not, however, the end of Supreme Court rulings on the death penalty.

Since 1976, the Court has gradually narrowed the circumstances in which capital punishment can be used. In particular, in 2002, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that it was unconstitutional to execute defendants with mental retardation. The 6-3 ruling acknowledged a growing national consensus that had already seen a number of states introduce legislation to prevent such executions. 34 Then, in 2005, in Roper v. Simmons, 543 U.S. 551 (2005), the Court struck down the death penalty for juveniles (those who were under 18 when they committed their crimes). Since 1976, 22 inmates had been executed for crimes committed as juveniles. This decision affected 71 inmates, and brought US law into compliance with international treaties and laws barring this practice. 35

In January 2008, however, the Court began to hear oral arguments in the case of Ralph Baze and Thomas Bowling, Petitioners v John D. Rees, Commissioner, Kentucky Department of Corrections, et al., 533 U.S. _ (2008), which many hoped would fundamentally change the way in which executions are carried out in the United States.

Since 1976, five methods of execution have been used in America. The most common is by lethal injection, which has been used in 965 executions, with 155 by electrocution, 11 in the Gas Chamber, 3 by hanging, and 2 by firing squad. 36 Today, all but one of the death penalty states uses lethal injection as their primary method of execution.

Until February, 2008, Nebraska was the only state that relied solely on electrocution. Then, on 8 February, 2008, the Nebraska Supreme Court ruled that electrocution was a cruel and unusual punishment as the evidence showed that electrocution inflected ‘intense and agonizing suffering.’ Judge William Connolly wrote in the 6-1 opinion ‘Condemned prisoners must not be tortured to death, regardless of their crimes.’ 37 However, though the Court argued electrocution offended rights under the state constitution, it did not remove the death penalty, stating that the state legislature could vote to have a death penalty, but not one that involved electrocution. Legislators did so on 25 March, 2008, voting in favour of retaining the death penalty by 28-20, but the state remains without a legal method of execution. When it decides, its most likely choice will be lethal injection. 38

Under the procedure followed by most states, lethal injection involves the condemned prisoner being strapped to a bed, sedated with sodium thiopental, injected with pancuronium bromide to collapse the lungs and diaphragm to stop breathing, and then given potassium chloride to stop the heart. 39 This three-drug method of execution was developed by an Oklahoma medical examiner, Dr Jay Chapman, in 1977 who had little expertise in pharmacology or anaesthesia (and who now opposes the use of the three drug protocol). It was quickly adopted by Texas, which became the first state to execute an inmate by lethal injection in 1982. Texas’s sequence was then copied by almost all the other states that allow lethal injection. 40

The method is controversial. According to Sarah Tofte, of Human Rights Watch, there exists recorded evidence of at least 40 botched executions, where prisoners appear to have been poorly anesthetised, experiencing pain until the end but being unable to express it due to being paralysed. 41 Often executioner’s hands shake, and veins can be hard to find on inmates who were addicted to drugs. In one documented incident, medical technicians and a physician took over an hour to find a suitable vein for intravenous access. 42 In Ohio one prisoner raised his head on the gurney to announce, ‘It’s not working’, whilst in Florida a prisoner sustained severe chemical burns on his arm whilst he struggled in pain for almost half an hour. 43

Since the introduction of lethal injection as a method of execution, lawyers for condemned prisoners, medical and even veterinary anaesthesiologists have suggested modifying the protocol to use a single lethal injection of the barbiturate pentobarbital. 44 They note that Oregon, which has legalised physician-assisted suicides for humans, prescribes a single dose of pentobarbital or a similar barbiturate. Veterinary surgeons also use a single, massive dose of barbiturate to euthanize an animal. 45

Before 2007, over 40 cases had been submitted to state and federal courts challenging the constitutionality of lethal injections. The Supreme Court finally agreed to consider the matter in the case of Baze v Rees.

The case originated in Kentucky, centred on two inmates, Ralph Baze and Thomas C. Bowling. Baze had been convicted of shooting a sheriff and a deputy sheriff execution style when they tried to serve felony warrants on him in 1992. Thomas C. Bowling fatally shot a couple and wounded their 2 year old son as they sat in their car in a parking lot after Bowling had crashed his vehicle into them. 46 Lawyers on their behalf argued the cocktail of three drugs to numb, immobilise and kill did not constitute a painless death, thereby violating the Eighth Amendment’s ban on cruel and unusual punishment. Remarkably, the Kentucky inmates were not asking to be spared execution or injection, but rather they wanted Kentucky to be forced to switch to the single, massive dose of barbiturates favoured by the veterinary profession. 47

When the Supreme Court announced on 25 September 2007 that it would hear the case at the beginning of January 2008, it made it clear that it would be doing so within a narrow framework, evaluating whether the state’s lethal injection protocol carried an ‘unnecessary’ risk of pain. It would be the first time the Court has ruled on a method of execution since 1879, when it allowed Utah the right to use a firing squad. 48

The impact of the Court’s decision to review the case led to the introduction of a de facto moratorium on the death penalty as confusion surrounding lethal injections saw a number of states suspend executions, notably California, Illinois, Florida, and three counties in Texas, pending the Supreme Court ruling. John Holdridge, Director of the American Civil Liberties Union’s Capital Punishment Project, optimistically hoped that the moratorium ‘presented a rare opportunity to reflect on why we remain the only advanced Western democracy to retain this punishment.’ 49

The last execution to take place before the moratorium was in Texas at 8.22pm on 25 September, 2007, when Michael Richard was executed by lethal injection. His execution was extremely controversial. At 9 a.m. on that morning, the Supreme Court had announced that it would hear the case of Baze v Rees. Richard’s lawyers rushed to file a new motion based on the high court’s ruling, but they experienced computer problems and missed the 5pm deadline. 50 His lawyers appealed to the Presiding Judge of the Texas Court of Criminal Appeals, Sharon Keller, for 20 more minutes to deliver their appeal because the courts did not accept computer filings, but were told ‘We close at 5.’ Without a ruling from the state court, the lawyers could not properly appeal to the U.S. Supreme Court to block the execution. 51 Richard’s was executed later that evening.

October 2007 became the first month for three years during which no executions were carried out in the United States as the moratorium rapidly spread throughout the remaining states in the US. 52 Roughly 40 cases involving the death penalty were placed on hold as a result. 53

Considering events, Professor Semel, of the Death Penalty Clinic at Boalt Hall Law School, the University of California, Berkeley, argued that ‘it would be inaccurate and very presumptuous’ to call the suspension a moratorium, ‘What we’re seeing,’ he concluded, ‘is a combination of different courts, and different executives, deciding to be prudent’ while waiting to see what the Supreme Court will do. 54 The Court did not officially suspend all capital punishment whilst it considered Baze v. Rees – only the most common method of applying it. If anything, though the Court has narrowed the limits of capital punishment in recent years, it has continued to reaffirm its constitutionality. There was little to suggest it would not do the same in Baze v Rees.

To the dismay of anti-capital punishment campaigners, on 16 April, 2008, two months earlier than expected, the Supreme Court upheld the constitutionality of executions by lethal injection in Kentucky. By what the Los Angeles Times regarded as ‘a surprisingly large 7-2 margin’, the court ruled in Baze v Rees that the three-drug combination used by Kentucky did not violate the Eighth Amendment. 55

In the opinion of Chief Justice John G. Roberts, the petitioners had not proved ‘the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment.’ Roberts suggested, ‘Some risk of pain is inherent in any method of execution – no matter how humane – if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.’ He also noted that the petitioners were not challenging lethal injection itself, but rather claiming the existence of ‘significant risk’ that the proper procedures would not be followed resulting in severe pain. This Roberts saw as a weakness in their appeal, arguing, ‘Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objective intolerable risk of harm’ that qualifies as cruel and unusual.’ He added, ‘a condemned prisoner cannot successfully challenge a state’s method of execution merely by showing a slightly or marginally safer alternative.’ Roberts feared that permitting such challenges ‘would threaten to transform courts into boards of inquiry charged with determining ‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology.’ 56

Though seven judges agreed with Roberts, six filed concurring opinions. Those agreeing with Roberts and filing an opinion were Samuel Alito, John Paul Stevens, Antonin Scalia, Stephen G. Breyer and Clarence Thomas. Justice Anthony Kennedy did not file an opinion, choosing to concur with Roberts. The two dissenting Justices were Ruth Bader Ginsberg and David Souter, the latter concurring with the former. In dissenting, Ginsberg was concerned that Kentucky’s lethal injection protocol lacked ‘basic safeguards used by other states to confirm that an inmate is unconscious before injection of the second and third drugs.’ It could not guarantee, she argued, that an inmate would die a painless death. Ginsberg recommended sending the case back to Kentucky with instructions to consider whether the omission of these safeguards ‘poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.’ 57

Interestingly, though Stevens concurred with the majority, he wrote for the first time that he considered the death penalty to be unconstitutional. Quoting the late Justice Byron R. White, Stevens argued that imposing capital punishment represented ‘the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes.’ As a result, the death penalty was a ‘patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ He concurred with Roberts, however, in order to uphold Supreme Court precedents that had upheld capital punishment and established a framework for evaluating particular execution methods, and because, in his opinion, the Kentucky petitioners had failed to prove their case. 58

Reviewing the decision, Linda Greenhouse of The New York Times believed that, ‘While the 7-to-2 ruling did not shut the door on challenges to the lethal injection protocols in other states, it set a standard that will not be easy to meet.’ 59 Many legal scholars and attorneys, however, disagreed. In the immediate aftermath of the decision, some warned that the fact that the Court had provided six different opinions could generate more challenges to lethal injection as a method of execution. Warned Brent Westerfeld, an Attorney in Indiana who represents death row inmates, ‘Even though there obviously was a plurality decision, there’s no clear majority decision as to the standards. You’re going to end up with a lot of courts trying to interpret what the court was saying.’ 60 Elisabeth A. Semel, Director of the Death Penalty Clinic at the University of California, Berkeley, agreed that the fractured decision, the sparse information available about practices in Kentucky, and the new standard announced by the court would lead to much more litigation, particularly in states were flaws in the administering of the three drug method were exposed. 61

According to the journalist Adam Liptak, lawyers representing death row inmates now faced two challenges: ‘One is to distinguish their state’s procedures from that used in Kentucky. The other is to overcome the high evidentiary bar Chief Justice John G. Roberts set for all challenges to methods of execution.’ Roberts had argued in the plurality opinion that lethal injection protocols ‘substantially similar’ to that used in Kentucky would be immune from challenges under the court’s new standards. But, Liptak noted, like Semel, that little was known about Kentucky’s procedures for administering the chemicals. Death row inmates would now be required to prove both a demonstrated risk of severe pain and that the risk was substantial when compared to available alternatives. However, as Deborah W. Denno, a law professor at Fordham University, commented ‘“Substantially similar?” I’m not sure what this is or what that would constitute.’ 62

Indeed, the Justices themselves expressed their concerns that Robert’s opinion would lead to further litigation. Justice Stevens observed ‘The question of whether a similar three-drug protocol may be used in other states remains open, and may well be answered differently in a future case on the basis of a more complete record.’ Justice Thomas was blunter, warning ‘today’s decision is sure to engender more litigation,’ because, ‘we have left the states with nothing resembling a bright-line rule.’ Whilst Stevens even urged states to consider abandoning one of the three drugs – the paralysing drug that would leave an unsedated inmate conscious but unable to move, breath or cry out. 63 Commenting on this division, Jordan M. Streiker, a law professor at the University of Texas, predicted ‘We will end up largely where we were before Baze. It has set us on a course in which there will be continuing challenges, efforts to document botched executions and efforts to continue to explore alternative protocols.’ 64

Three weeks after the decision, at 7.51pm on 6 May, 2008, Georgia executed William Earl Lynd, aged 53, by lethal injection. It was the first execution since 25 September, 2007. Lynd had shot his girlfriend Ginger Moore, in 1988 while the two were high on Valium, marijuana and alcohol. Both the US Supreme Court and Georgia Supreme Court rejected his appeal for a stay of execution. 65 Somewhat embarrassed, the Governor of Georgia, Sonny Perdue, announced, ‘It was not something we wanted to necessarily be first at. It was just the fact that this had been there.’ 66

If the anti-capital punishment lobby was disappointed with the decision in Baze v. Rees, they were quickly granted some solace in the Supreme Court ruling that was made in the case of Patrick Kennedy, Petitioner v. Louisiana, 554 U.S. _ (2008) on 25 June, 2008.67 This case centred on Patrick Kennedy who was sentenced to death in Louisiana in 1998 for the violent rape of his eight year old stepdaughter, an attack so brutal that the child required extensive surgery. 68

Reflecting growing public concern over sex offenders, Louisiana had introduced a law in 1995 that allowed the death penalty to be granted for anyone who raped a child under the age of 12. By the beginning of 2008, six states in America authorised the death penalty for those convicted of raping a child. 69 In a close 5-4 decision, the Supreme Court ruled in Kennedy v. Louisiana that it was unconstitutional to execute someone who rapes a child. Had the decision not favoured Kennedy, he would have become the first convicted rapist in the U.S. to be executed in a case in which the victim was not killed since 1964. 70

Justice Anthony Kennedy wrote in the majority decision ‘there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other.’ Though the latter might be ‘devastating in their harm’, Kennedy wrote, ‘they cannot be compared to murder in their severity and irrevocability.’ Kennedy then made a more surprising point that both strengthened the abolitionist cause and also suggested a possible shift in the Court’s view of the death penalty. When determining what punishment the Eighth Amendment prohibits, he argued, ‘evolving standards of decency that mark the progress of a maturing society’ must be taken into account. It is this, he noted, that had led to the Court ruling that the mentally retarded and those who had committed crimes as juveniles could not be executed. As a result, this decision was part of a process that was placing increasing restrictions on who could and could not be executed. This, he believed, reflected public opinion. Kennedy, supported by Justices Stevens, Souter, Ginsburg, and Breyer, wrote, ‘we conclude there is a national consensus against capital punishment for the crime of child rape.’ In short, the justices wrote, such standards forbid the use of capital punishment for any crime against an individual other than murder or those who commit crimes against the state. 71

The conservative wing of the Court strongly condemned the majority decision. 72 Responding to Kennedy’s comments, Justice Alito Jr. wrote, ‘I have little doubt that, in the eyes of ordinary Americans, the very worst child rapist – predators who seek out and inflict serious physical and emotional injury on defenceless young children - are the epitome of moral depravity.’ 73

Many child advocate groups, however, supported the outcome. Texas Association Against Sexual Assault, a non-profit victim advocacy group representing 80 rape crisis centres, noted, ‘Most child sexual abuse victims are abused by a family member of close family friend. The reality is that child victims and their families don’t want to be responsible for sending a grandparent, cousin or long time family friend to death row.’ 74 Furthermore, victims would most likely have had to testify repeatedly during the extended appeals process that surrounds many capital cases, prolonging the trauma.

In addition, as Kennedy pointed out, in 2005 there were over 5,700 incidents of rape of children under the age of 12, more than twice the number of intentional murder victims of all ages. 75 It would be impossible for the legal system to cope with such numbers even if the death penalty was called for in only a fraction of cases.

Politicians, however, quickly made the issue a political football. The Republican Governor of Louisiana, Bobby Jindal, called the ruling ‘incredibly absurd’, adding that his officials would ‘evaluate ways to amend our statute to maintain death as a penalty for this horrific crime.’ Alabama Attorney General Troy King announced, ‘Anybody in the country who cares about children should be outraged’, dramatically claiming that the Supreme Court was ‘creating a situation where the country is a less safe place to grow up.’ 76

Both presidential candidates also quickly denounced the court’s action. Said John McCain, the presumptive Republican nominee, ‘That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.’ The ruling was, in his view, ‘an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime.’ 77 Barack Obama, the presumptive Democratic candidate, said, ‘I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution.’ 78 McCain’s response was predictable. Obama surprised many as he had once been a critic of the death penalty, arguing in his memoirs that it was not a deterrent to crime. He had even cited the near-abolishment of the death penalty in Illinois as one of his legislative accomplishments. But even Obama had conceded in his memoirs that there were crimes so heinous, such as “mass murder” and “the rape and murder of a child … that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.” 79 Given that 2008 was also an election year, his announcement may have also reflected a move towards the centre as he attempted to appeal to more traditional voters on life-and-death issues.

It was assumed by most commentators that the pro-death lobby would seek to overturn the decision by adopting one of two strategies – waiting for a change in the makeup of the Supreme Court, or persuading legislatures to redraw death penalty laws. Obama’s victory may make the former less likely as he may choose to appoint judges who take a more liberal view of capital punishment (though this, in itself, is not certain).

In actuality, the Kennedy decision was challenged very quickly on 21 July, 2008, when Louisiana prosecutors, backed by a letter signed by 85 members of Congress, asked the Supreme Court to revisit the Kennedy decision. According to The Chicago Tribune, their request was based on the ‘failure’ of anyone in the case, including lawyers on both sides and the justices themselves, ‘to take into account a change in federal law in 2006 that authorizes the death penalty for members of the military convicted of rape’ of a minor. 80 President Bush signed an Executive Order in September in 2007 to implement the change made by Congress.

The Supreme Court refused to rehear the case in October in Patrick Kennedy, Petitioner v Louisiana, on Petition of Rehearing, 554 U.S. _ (2008). Writing the majority opinion, Justice Kennedy argued ‘authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context.’ Furthermore, he concluded ‘That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional.’ 81

Scathingly, Justice Scalia, attacked Kennedy, arguing there was no national consensus that opposed the death penalty for child rape. He noted that the bill providing for the death penalty for child rape passed in the Senate 95-0 and in the House 374-41. ‘It is difficult to imagine’, he concluded, ‘how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.’ 82 However, the Court’s decision ensures the distinction remains.

The Supreme Court was involved in another controversial case in 2008, which centred on the plight of Jose Medellin, a Mexican who had lived in the USA since childhood. In 1993 Medellin was found guilty of the brutal gang rape and murder of two girls in Texas. He challenged his conviction, however, because Texas law officials had failed to inform him of his right under the 1963 Vienna Convention to request Consular Affairs to speak with the Mexican consulate on his behalf. The state admitted its error, leading to an international dispute involving the International Court of Justice - the United Nation’s highest court - which ruled that Medellin and 4 other Mexican nationals on death row in the United States were entitled to ‘review and reconsideration (of their sentences)’ and that the US should ‘take all measures to ensure (they) are not executed pending judgement’.83 President Bush ordered Texas to comply by executive order in 2005, but the state refused, citing the supremacy of state laws. The Supreme Court upheld Texas’s position in the case of Jose Ernesto Medellin v. Texas, 552 U.S. _ (2008), in a 6-3 vote, arguing that the ICJ ruling was not binding domestically unless Congress had enacted statutes implementing the law, or the treaty was self-executing, and that the President did not have the constitutional power to enforce international treaties or decisions of the International Court of Justice. 84 The Court’s ruling effectively allowed the execution to go ahead.


Conclusion

The de facto moratorium on lethal injections whilst Baze v. Rees was being considered contributed to 2008 witnessing the lowest number of executions in United States for 14 years. But, it is also the case that since 2001 the trend has been for the number of executions, and the numbers of those condemned to death, to decline.

It is, however, unlikely that the death penalty will be abolished in the USA in the near future. Public support for its use is still in the majority. Furthermore, though the number of executions has declined in recent years, 23 executions are scheduled for the first five months of 2009, suggesting a possible increase in the number of death sentences carried out this year. Following recent patterns, almost all of the 23 are in the south, with half in Texas. 85

For now abolitionists may have to accept that any changes that occur will be gradual. Though the Supreme Court continues to support the view that the death penalty is not a ‘cruel or unusual punishment’, in 2008 it limited considerably the offences for which it can now be applied, namely murder or offences against the State. With an apparent liberal president taking office this year, it is likely that any appointments he makes to the Court may continue this restricted interpretation of capital punishment.

Jurors and prosecutors continue to appear to be more apprehensive about sentencing prisoners to death, fearing condemning the innocent, and there are a growing number of states that have introduced the option of life imprisonment without parole.86 Indeed, an increasing number of states are beginning to express their unease at the problems surrounding the death penalty, not least the ever-growing list of exonerations, the questions that still remain regarding the use of lethal injection, the racial disparities, and the cost. This last point may be a significant tool for the abolitionists as the country’s economic crisis deepens. If this is attached to the idea that convicted prisoners will be given life without the possibility of parole, it may persuade more to question the future legitimacy of capital punishment, as the former appears far more cost effective than the latter.

Ultimately, America remains unusual in the western world in its use of the death penalty. Given the accusations of human rights abuses that the USA has suffered since 2003, international public opinion may be an additional factor that may be considered by policymakers, judges, and jurors, particularly as the United States of America finds itself amongst an ever-diminishing number of countries that practise capital punishment.

On 18 December, 2007, the United Nations General Assembly voted 104-54 in favour of a non-binding resolution for a global moratorium on executions. There were 29 abstentions. The resolution, co-sponsored by the EU and 60 other countries, called on countries to: progressively restrict the use of the death penalty, reduce the number of offences for which it can be imposed, and establish a moratorium on executions with a view to abolishing the death penalty. The United States opposed the resolution, voting against its European allies and Israel, and siding with Iran, China and Syria. 87

As Anne Quindlen concluded in Newsweek, ‘Hardly any other civilized place does this anymore…. The question isn’t whether executions can be made painless: it’s whether they’re wrong. Everything else is just quibbling.’ 88