Should capital punishment be allowed in the United States?

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Should capital punishment be allowed in the United States?
The public debate over capital punishment is typically revived whenever a high-profile execution takes place. In 2014, for example, Joseph R. Wood, who had been convicted of the 1991 killing of his ex-girlfriend and her father, took more than two hours to die after he was injected with a combination of legal drugs. Two other prisoners that year, Clayton Lockett and Dennis McGuire, suffered similarly botched executions. Opponents of the death penalty argue that botched executions such as Wood's illustrate that the practice is a violation of the Eighth Amendment to the U.S. Constitution's ban on cruel and unusual punishment. Supporters, however, contend that Wood was a convicted murderer, and that sympathy for him is misplaced.
In May 2015, a federal jury handed down a death sentence to Dzhokhar Tsarnaev, who had, along with his brother Tamerlan, carried out a bombing near the finish line of the Boston Marathon in 2013, killing three and injuring hundreds. Opinion polls demonstrated that a strong majority of Americans supported the sentence, despite the fact that overall support for capital punishment was at its lowest since the early 1970s. "Support for capital punishment has sagged in recent years," journalist David von Drehle noted in Time, "but it remains strong in a situation like this, where the offense is so outrageous, […] and guilt beyond dispute."
Despite support for Tsarnaev's sentence, the movement to repeal the death penalty has gained support among both Republicans and Democrats. Such critics, many of whom formerly supported capital punishment, have cited low crime rates, the great expense of the appeals and execution process, and the rising number of prisoners who have been exonerated from death row as justification. As public support has declined, so has the frequency of executions. In 2014, fewer prisoners were put to death than in any other year in the past two decades, and fewer death sentences were handed down than in the previous 40 years.
The death penalty debate has been most active on the state level. A majority of states still authorize the use of capital punishment, but few exercise that option regularly. Just five states— Florida, Georgia, Missouri, Oklahoma, and Texas—carried out 47 of the 49 executions that took place between January 2014 and May 2015. Several states have abolished the death penalty in recent years. In February 2015, Pennsylvania governor Tom Wolf (D) declared a moratorium on the practice. In May, Nebraska's legislature overrode a veto by Governor Pete Ricketts (R), a rare move for a state with a Republican-dominated legislature. The same month, a similar effort fell just short of passing through Delaware's legislature. As of May 2015, 18 states and Washington, D.C. had banned capital punishment.
Capital punishment has been a part of the U.S. criminal justice system for most of the country's history. Indeed, until the early 20th century, death sentences were often carried out in public places such as parks and town squares. Public hangings often drew hundreds, and occasionally thousands, of witnesses. Executions have since been limited to only a few witnesses, including family members of the prisoner to be executed, as well as those of his or her victims. The number of executions in the United States began to decline sharply in the early 1950s amid increasingly pervasive arguments that the death penalty violated the Eighth Amendment, which prohibits cruel and unusual punishment. In 1968, for the first time in U.S. history, no prisoners were executed. The years 1969 through 1972 were similarly execution-free.
In early 1972, the U.S. Supreme Court heard arguments in the case Furman v. Georgia, in which lawyers for the convicted murderer William Henry Furman argued that he did not deserve the death sentence handed down to him by a Georgia jury. Furman had been burglarizing the home of Henry Micke, who had returned home in the middle of Furman's robbery; Furman tripped while attempting to flee the scene, accidentally discharging his gun and killing Micke. The Court ruled 5–4 that not only was Furman's sentence unfair but that the death penalty itself was unconstitutional. In addition to violating the Eighth Amendment's ban on cruel and unusual punishment, the Court ruled, the arbitrary nature of the death penalty violated the Fourteenth Amendment, which entitles all U.S. citizens to "equal protection of the laws." In his opinion in the case, Associate Justice Potter Stewart wrote that the death penalty is "unique…in its absolute renunciation of all that is embodied in our concept of humanity." He continued: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual…. I simply conclude that the Eighth and 14th Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”
The decision in Furman v. Georgia essentially overruled any state laws that allowed the death penalty. Capital punishment remained illegal until 1976, when the Supreme Court ruled 7-2 in the case Gregg v. Georgia. In its majority opinion, written by Stewart, the Court cited numerous new state laws that made the imposition of death sentences less arbitrary, and therefore less "cruel and unusual." It also cited capital punishment's effectiveness as a crime deterrent and appropriate punishment for the very worst of criminal offenders. After Gregg, many states chose to reinstate capital punishment. In 1977, convicted murderer Gary Gilmore became the first person executed in the United States since 1967 when he was killed by a firing squad in Utah. Some states, however, did not institute the death penalty. Michigan, for example, continued to uphold a 130-year-old ban on capital punishment.
Executions were relatively rare during the decade and a half following the Gregg decision. Between 1977 and 1991, 157 executions were carried out in the United States, according to the Death Penalty Information Center (DPIC). (In comparison, there were 199 executions in the year 1935 alone.) Execution rates steadily increased throughout the 1990s, reaching a post-Gregg peak of 98 in 1999, then once more declined—the 37 executions carried out in 2008 marked the lowest such number in more than a decade. That number rose to 52 in 2009, but fell to 46 in 2010, and 43 in both 2011 and 2012. There were 39 executions in 2013 and 35 in 2014.
Many observers note that the death sentence is imposed disproportionately on African Americans. According to the human rights group Amnesty International, although African Americans constitute approximately 12 percent of the United States' population, about one out of every three executed prisoners since 1977 has been black. Several studies have found that black defendants are significantly more likely to receive the death penalty than white defendants for similar crimes.
The death penalty has not become any less controversial since its 1976 reinstatement. Anti–death penalty groups, such as the American Civil Liberties Union (ACLU), frequently appeal on behalf of death row prisoners, often delaying executions for years, and non-profit legal groups like the Innocence Project have successfully challenged dozens of death row cases. Dozens of prisoners have been exonerated and freed from death row thanks to post-conviction DNA testing and other investigatory efforts.
One of the most visible death penalty cases has been that of Mumia Abu-Jamal, who in 1983 was convicted of the 1981 killing of police officer Daniel Faulkner and sentenced to death. Abu-Jamal maintained his innocence, acknowledging that he was on the scene when Faulkner was killed but maintaining that he was not the killer. The case garnered a substantial amount of attention in the 1990s, with supporters of Abu-Jamal claiming he had not been given a fair trial. A "Free Mumia" movement arose, which the New York Times described as being "particularly prominent around college campuses, where students collected donations for his legal defense fund and sold buttons and posters carrying images of his pensive face and long dreadlocks." Critics of the death penalty—including the human rights organization Amnesty International—argued that the finality of the death penalty made it particularly egregious in a case such as Abu-Jamal's, where doubt was raised after a trial as to the fairness of the court.
In 2011, after years of legal struggles, a federal appeals court ordered that Abu-Jamal receive a new sentencing hearing because of misleading instructions given to the jury during Abu-Jamal's trial. Seth Williams, the district attorney in Philadelphia, Pennsylvania, where the case was tried, decided to drop the death penalty against Abu-Jamal in favor of a term of life in prison without the possibility of parole. While Abu-Jamal's supporters cheered the decision, others expressed disappointment. Faulkner's widow, Maureen, described the judges who called for Abu-Jamal to receive a new sentence "dishonest cowards."
Allegations of mishandled death penalty cases are fairly common. For example, USA Today reported that during one seven-day span in June 2006, death penalty cases in Pennsylvania, Texas, and California were criticized by the U.S. Supreme Court as being unfairly prosecuted. That same week, an Oklahoma appeals court ordered a retrial for a man who had been sentenced to death row in 1982, ruling that key evidence in the trial might have been mishandled by a police laboratory assistant. Also during that week, an Illinois man who had been on death row for eight months saw his conviction overturned on the basis of DNA testing. In some cases, claims of withholding evidence and other types of mishandling have led to exonerations. According to the DPIC, 153 death-row inmates were freed between 1973 and May 2015. Observers credit post-conviction DNA testing for many of those exonerations.
Two recent landmark Supreme Court decisions have limited juries' ability to sentence prisoners to death. In the 2002 case Atkins v. Virginia, the Court found 6–3 that executing the mentally handicapped violated the Eighth Amendment. In 2005, in Roper v. Simmons, the Court ruled 5–4 that the death penalty could not be imposed for crimes committed by a defendant younger than 18 years old.
Several months after the Roper decision was handed down, Justice John Paul Stevens spoke about the death penalty at a Chicago event held by the American Bar Association, a professional organization for lawyers. Stevens, at the time one of the more liberal justices on the Supreme Court, argued that in light of the 100-plus exonerations of death-row inmates in the previous 30 years, "there must be serious flaws in our administration of criminal justice." Justices Ruth Bader Ginsburg and Anthony Kennedy have also publicly aired concerns about the legal process by which jurors sentence defendants to death, while Justices Samuel Alito Jr., Antonin Scalia, and Clarence Thomas have consistently defended this process.
In 2007, the United Nations (UN) urged all of its member nations to abolish the death penalty. The United States, joining North Korea, China, Iran, and the Sudan, opposed the resolution, which was supported by the European Union (EU), Turkey, Israel, and most of Latin America.
In 2008, the Supreme Court ruled 7–2 that lethal injection does not constitute cruel and unusual punishment, which is banned by the Eighth Amendment. The following year, it ruled, 5–4, that the execution of child rapists was not constitutional, provided that the rapist did not kill the victim.
In September 2011, Troy Davis was executed by the state of Georgia for the 1989 murder of police officer Mark MacPhail. Davis had obtained several postponements of his execution, vigorously maintaining his innocence and gathering a large group of ardent supporters. Most of the witnesses who testified against Davis during his trial had since recanted their stories, and many observers argued that there were legitimate reasons to believe that Davis might have been wrongly convicted. 
Death penalty opponents charged that the case illustrated the dangers of capital punishment, arguing that it was likely that the state of Georgia had just executed an innocent man. Defenders of the death penalty, however, argued that MacPhail's family, who had spoken in favor of Davis's execution, deserved the closure of knowing that the man who had been convicted of killing MacPhail had been put to death.
Some states, meanwhile, reconsidered capital punishment. In 2000, for example, Governor George Ryan (R) of Illinois declared a statewide moratorium on executions, eventually granting clemency to the 167 prisoners on Illinois's death row. Ryan said at the time that he decided to take action after noting that 13 of the more than 100 exonerated death-row prisoners in the United States had been from Illinois. In 2011, Illinois formally abolished the death penalty. In 2006, Governor Richard Codey (D) of New Jersey declared a temporary moratorium on executions, pending the results of a government-appointed commission's study of the effectiveness of capital punishment, and in 2007, New Jersey became the first state since 1965 to abolish the death penalty. Over the next seven years, five other states—Connecticut, Illinois, Maryland, New Mexico, and New York—also abolished the death penalty.
In May 2015, Nebraska ended its use of capital punishment as the result of a bipartisan effort by the state's legislature. "Opponents of the death penalty here were able to build a coalition that spanned the ideological spectrum by winning the support of Republican legislators," New York Times journalist Julie Bosman wrote, "who said they believed capital punishment was inefficient, expensive and out of place with their party's values." The legislature overrode a veto from Governor Pete Ricketts to pass the law; Ricketts had signed his veto while flanked by family members of a woman killed in a bank robbery in 2002.
Supporters of the death penalty argue that, for the most horrific crimes, death is the only suitable punishment. John O'Sullivan, an editor for the conservative magazine National Review, contended in 2002 that “the death penalty is sometimes the only punishment that seems equal to the horror of a particular crime—a cold-blooded poisoning, say, or the rape and murder of a helpless child, or the mass murders of the Nazis and Communists." Supporters argue that a person who chooses to take the life of a fellow human being forfeits his or her right to live—in short, they maintain, the punishment fits the crime.
Far from being "uncivilized," proponents claim, the death penalty is one of the more commendable aspects of the criminal justice system, punishing brutal violence with quick death. O'Sullivan argues that executions that are administered by state governments are vastly preferable to what would happen if an ordinary citizen tried to achieve retribution for a loved one's murder. "[T]he replacement of private vendettas by state executions is as good a definition of the birth of civil society as political scientists can come up with," he writes.
Supporters charge that the death penalty is an effective deterrent to violent crime because it causes potential criminals to think twice before committing murder. Robert Blecker, a professor at New York Law School in Manhattan, told USA Today in 2003 that research shows that criminals "are cognizant of whether they are operating in a death-penalty state before they pull the trigger."
Capital punishment advocates deny that the execution of Troy Davis—even if he was innocent—is reason to abolish the death penalty. The National Review's Jonah Goldberg argued in 2011 that a few regrettable mistakes should not be grounds to do away with the death sentence: “I'm…opposed to police accidentally shooting bystanders or shop clerks mistaken for robbers.… [W]e all know that happens. And yet, I'm still in favor of cops carrying guns.… I'm against Air Traffic Controller errors that lead to deaths, but I'm still in favor of flying and air traffic controllers.… [W]hy is it that the death penalty is the only government function that must be abolished after a single error?”
Other death penalty supporters note that cases such as Davis's may be grounds for amending or limiting the death penalty, but not abolishing it. New York Times columnist Ross Douthat contended in 2011, "[G]radually reforming the death penalty—imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well—might do more than outright abolition to address the larger problems with crime and punishment in America."
Supporters also dispute one of the statistics most commonly cited by death penalty critics, namely that more than 100 innocent prisoners on death row have been exonerated in the United States since 1976. Some of those prisoners, they note, were exonerated not by virtue of being proved innocent, but because of technicalities, such as prosecutorial misconduct. Besides, supporters argue, even if later evidence has shown that some people who were executed were innocent, forensic evidence has proved beyond a doubt that most people who are executed are in fact guilty. "We hear so much about the innocent people who've gotten off death row," Goldberg wrote, but "We hear very little about the criminals who've had their guilt confirmed by the same techniques.…Death-penalty opponents are less eager to debate such cases because they want to delegitimize 'the system.'"
Abolishing capital punishment, opponents warn, threatens to embolden criminals and disrupt the judicial process. Nebraskans, governor Paul Ricketts argued before vetoing an effort to repeal capital punishment in the state in May 2015, "look to government to strengthen public safety, not weaken it. The Legislature's decision will test whether our state has the prosecutorial tools to manage the 'worst of the worst' cases. Their decision will determine whether the families of the victims of ten men on Nebraska's death row will ever receive the justice meted out by a very deliberate and cautious judicial process in each of their cases."

Opponents of the death penalty maintain that it is a barbaric, immoral practice that has no place in a civilized society. Putting criminals to death as punishment for murder, critics argue, sends a confusing and morally problematic message to the U.S. population. They claim that capital punishment denies people their most basic right: the right to live. Most death penalty opponents favor life imprisonment over execution, arguing that the former is much more humane. When the death penalty was reinstated in 1976, former Supreme Court Justice Arthur Goldberg said that the death penalty constituted cruel and unusual punishment and should be banned: "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."

Opponents contend that the more than 150 exonerated death-row inmates represent proof that the death penalty should be abolished. The relatively high margin of error in prosecuting death penalty cases, they assert, has surely led to innocent people having been put to death. Life imprisonment is a preferable alternative to capital punishment, critics argue, because prisoners found to be innocent while serving a life sentence have some chance of resuming a normal life if their sentence is reversed. "As long as a prisoner remains alive," the website of the human rights group Amnesty International states, "he or she can hope for rehabilitation or exoneration in the case of a prisoner who is subsequently found to be innocent."
Death penalty opponents state that the execution of Troy Davis—who, they claim, was very likely not guilty of the crime of which he was convicted—clearly shows the dangers of capital punishment. Atlantic journalist Andrew Cohen argued in 2011: “When the state kills those whose guilt is in serious doubt, or when the state kills those to whom it has not given fair justice, it doesn't just perform an injustice upon the individual, the rule of law, and the Constitution. It also undermines the very legitimacy of the death penalty itself, for its continuing use as a sentencing option derives its civic and moral strength mostly from the fiction that it can be, and is, credibly and reliably imposed.”
Opponents also argue that capital punishment is an example of institutionalized racism. More often than not, they maintain, death penalty cases involve black defendants on trial for allegedly murdering white victims, facing sentencing from an all-white jury. "Nationwide, blacks and whites are victims of homicide in roughly equal numbers," David Dow, a law professor at the University of Houston wrote in the New York Times in 2011, "yet 80 percent of those executed had murdered white people." He also argued that, since the death penalty was reinstated, "Texas has carried out 470 executions.… You can count on one hand the number of those executions that involved a white murderer and a black victim."
Opponents note that public support for capital punishment has decreased in recent years. "There's a skepticism about the accuracy of the system and, to some degree, the fairness," Richard Dieter, executive director of the DPIC, told the Washington Post in 2005. "You have religious leaders voicing concerns. You have conservatives. The lines aren't as clear as they once were."
The United States' reliance on the death penalty also puts it at odds with much of the rest of the Western world, opponents note. International bodies such as the United Nations Human Rights Commission are officially opposed to capital punishment as well, critics point out. In 2005, the only countries that executed more criminals than the United States were China, Iran, and Saudi Arabia. More than 80 countries—including South Africa, Russia, and the Philippines—have abandoned the death penalty since 1970, they note. Opponents argue that those facts are proof that the international consensus is firmly against capital punishment, and the United States should fall in line with it. "Our country is almost alone in our fascination with the death penalty. Ninety percent of all executions are carried out in China, Iran, Saudi Arabia and the United States," former president Jimmy Carter (D, 1977–81) argued in the Atlanta Journal-Constitution in 2012. "The homicide rate is at least five times greater in the United States than in any Western European country, all without the death penalty."
The futility and expense of capital punishment, critics note, has demonstrated to conservatives and liberals alike that the practice must end. "Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government," David Burge, leader of Georgia's Republican Party, wrote for the Atlanta Journal-Constitution in May 2015. "The reality is that capital punishment is nothing more than an expensive, wasteful and risky government program."

“Capital Punishment.” Issues & Controversies. Infobase Learning, 2 June 2015. Web. 28 Aug. 2015. .

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