In the US, the death penalty is a state issue. 32 out of 50 US states retain the death penalty, and although complete abolition isn’t likely within a decade, there have been some positive steps. For instance Maryland abolished the death penalty in May 2013, Connecticut in April 2012, and Illinois in March 2011. Oregon established a moratorium in November 2012. Legislation to abolish the death penalty has also been introduced in a number of other state legislatures. Debates have focused on the costs of execution and the risk of executing innocent people. In 2013, 39 executions were known to have been carried out, but overall the number of death sentences issued in the US has declined year on year for the past nine years. It is reported that there are approximately 3,200 people on death row in the US.
What are the issues?
The cost of the death penalty
In the US, the cost argument is very compelling. The death penalty is very expensive. Capital trials run into the millions and costs can average out to be an additional $1 million compared to non-capital trials. It is also very costly to keep a prisoner on death row, given the need for separate cells and regular observation. Where there is a backlog of death row inmates, many will be waiting on death row for several years at high cost. For example, in Texas a death penalty case costs on average $2.3 million, which is around three times as much as the cost to imprison someone for 40 years.
The cost of hiring a good lawyer is often out of reach of many people facing the death penalty in the US, which puts them at a disadvantage from the start.
Race plays a significant role in death penalty cases. There are proportionally more black people on death row than in the wider US population. Since 1976, 35% of those executed were black, compared to approximately 12% of the population who are black. If the defendant is black, and the victim is white, the defendant is more likely to be sentenced to death than if it were a white person who had committed a crime against another white person. Amnesty International have found that while the number of black and white people who have been murder victims is fairly equal, 80% of those executed were for murders of white victims. In addition, they have found that more than 20% of black defendants who have been executed were convicted by all-white juries.
It is often argued that the death penalty is carried out in an arbitrary manner in the US. In addition to race, executions also vary by gender, geography and differing opinions in different states as to whether crimes are considered to be the “worst of the worst”. Because of the lack of uniformity in the crimes which attract the death penalty some of the most heinous crimes do not attract the death penalty in some instances, while in others individuals can be sentenced for less heinous crimes. The quality of legal representation also plays a role here, as inadequate representation can lead to mistakes in sentencing in capital cases.
Lack of drugs available
Since 2010, there has been a national shortage in the preferred drug for carrying out lethal injections, and the US has, therefore, sought to source this drug from elsewhere. The UK was one of a few countries approached to source stocks of sodium thiopental. As a result, we imposed export controls on sodium thiopental, and later on a further three drugs which might be used for executions. The UK wrote to the EU Commission to request controls be imposed at EU level and in December 2011 the Torture Regulation was amended, introducing controls on the export of drugs for use in executions. Most recently in July 2012, the UK introduced controls on the export of Propofol.
As a result, States have had to alter their execution protocols, which has led to multiple legal challenges over whether a single injection is considered “Cruel and Unusual Punishment” under the US Constitution. This has subsequently created considerable delay in executions being carried out in several states, including California, Nebraska, Arkansas, Montana, Florida and Georgia.
There have been instances where there have been concerns over executing those in the US who are considered mentally ill. Executions of those who are mentally ill or “who have become insane” are prohibited by international law (UN Safeguards guaranteeing the rights of those facing the death penalty). According to The National Association of Mental Health, they estimate that 5-10% of people on death row have a serious mental illness. The threshold for determining mental disability varies from state to state.
The deterrence argument is still often used in the US. However there is no conclusive evidence to suggest that the death penalty has any value as a deterrent. Indeed, some US states which use the death penalty still have a very high crime rate. Amnesty USA report that the homicide rate in states which still retain the death penalty has been 48-101% higher than in states which do not have the death penalty.
Public opinion is often cited as a reason why policy makers decide not to abolish the death penalty. In many cases, public opinion surveys show that the public are in favour of the death penalty. Policy makers therefore do not wish to abolish the death penalty as their electorate may not vote for them for another term of office. In reality, abolition of the death penalty has rarely happened with overwhelming public support and polling on the subject can be heavily influenced by the framing of the question or current events.
Since 1973, over 130 people in the US have been removed from death row in light of evidence that they were innocent. Wrongful convictions may be caused by poor legal representation, police misconduct, racial prejudice or misinterpretation of evidence.
Continue to work with the EU to further limit the export of drugs which might be used for executions in the US
State sentences to death/sets a date to execute/ executes someone where minimum standards are not met (e.g. mentally ill).In these instances, we must consider whether and at what stage is most appropriate to act, e.g. if it becomes likely that an individual will be sentenced to death, at the sentencing stage, just before date of execution, during the appeal process, clemency hearing, or post execution, and to whom it would be most effective to make representations.
Ministerial statement after any execution expressing disappointment
Raise awareness through social media, e.g. Twitter and Facebook
Lobbying – might seek to empower states to abolish the death penalty rather than use direct lobbying techniques. Arguments which might sit well may be to focus on the cost of the death penalty in the US, as this is compelling for even those who are strongly in favour of the death penalty.