Many nations have eliminated the death penalty from their legal systems. In contrast, the United States still maintains the practice, albeit with efforts to improve the humaneness of executions. The Supreme Court has imposed limitations on the use of the death penalty, considering factors like the nature of the crime and the attributes of the offender. Psychologists and other social scientists have engaged in extensive research, exploring topics such as the effectiveness of the death penalty as a deterrent, the factors influencing public backing for capital punishment, the decision-making process of jurors when choosing between life imprisonment and execution, as well as the potential occurrence of wrongful convictions and executions.
Death Penalty in the International Context
The death penalty, one of the oldest forms of punishment for criminal offenses, continues to be practiced globally. Methods such as shooting, hanging, beheading, lethal injection, and stoning are among the most commonly used means of execution worldwide. According to Amnesty International, China currently leads the world in the annual number of executions, followed by Iran, Saudi Arabia, the United States, and Pakistan. Notably, the United States and Japan stand as the sole industrialized democracies that still carry out executions. However, there is a clear international trend moving towards the abolition of the death penalty. Between 1985 and 1995, 37 countries abolished it, and an additional 22 nations followed suit between 1995 and 2005. Today, more than half of the world’s countries have either eliminated capital punishment or ceased to conduct executions. Once abolished, the death penalty is rarely reinstated. Only four countries (Gambia, Nepal, Papua New Guinea, and the Philippines) have reinstated it after previously abolishing it, with two of those subsequently repealing it once more.
American Methods of Execution
In an effort to render executions more civilized, the United States adopted three “modern” execution methods: electrocution, poisonous gas, and lethal injection. Before the first electrocution in 1890, hangings had been the prevalent form of execution in the country. Hangings often went awry, resulting in gruesome and distressing scenes. Government officials aimed to not only eliminate such distressing spectacles but also to discontinue hangings, which were closely associated with lynching and extrajudicial justice in the public’s perception. With the introduction of each new execution method—the electric chair, followed by the gas chamber, and then lethal injection—the primary argument put forth was that the new approach would be more humane and dependable compared to its predecessor. Nonetheless, it is essential to recognize that no method of carrying out capital punishment can be deemed entirely humane or infallible. Lethal injection, now employed in 37 out of the 38 states that practice the death penalty, has faced challenges concerning the potential for inflicting considerable pain, even though the suffering of the condemned prisoner may be concealed by the paralyzing substances used during the execution process. Some observers have pointed out that assessments of the humanity of the death penalty must consider not only the actual act of ending the prisoner’s life but also the protracted process leading to an execution, encompassing the years spent on death row and the ceremonies preceding the execution itself.
The Supreme Court and the Death Penalty
Challenges to the constitutionality of capital punishment have been raised on the basis of violating the Eighth Amendment’s prohibition against “cruel and unusual punishment” and the Fourteenth Amendment’s assurance of “equal protection” under the law. In the 1972 case of Furman v. Georgia, the Supreme Court, in a 5:4 decision, determined that due to the “uncontrolled discretion of judges or juries,” the death penalty was being applied in a manner that was “arbitrary and capricious.” Consequently, the way capital punishment was administered at that time was deemed unconstitutional. Nevertheless, by 1976, the Court had sanctioned a series of reforms aimed at curbing the discretion of judges and jurors (Gregg v. Georgia). Key reforms included conducting bifurcated capital trials, where the first phase determines guilt, and if the defendant is found guilty, a second “penalty phase” is held to decide whether the convicted individual should receive a death sentence or life imprisonment. Recent Supreme Court decisions have imposed further limitations on the death penalty. The Court has ruled that murderers with mental retardation cannot be subjected to capital punishment (Atkins v. Virginia, 2002), only juries (not judges) can make the determination of whether a convicted murderer should be sentenced to death, and individuals who commit their crimes as juveniles cannot be sentenced to death (Roper v. Simmons, 2005). In states where the death penalty is authorized, only cases of “aggravated” murder or murder involving “special circumstances” qualify for capital punishment. While state laws vary, examples of capital offenses include murder for hire, murder committed during the commission of a robbery or rape, murder of a police officer, or kidnapping and murder. Federal crimes such as espionage and treason may also result in a death sentence.
The Capital Murder Trial
Numerous researchers have delved into the impact of distinct characteristics in capital murder trials on guilt determination and sentencing outcomes. One such distinctive aspect is the process of death qualification. During the jury selection phase in capital cases, potential jurors are queried about their willingness to consider imposing a death sentence if the defendant is ultimately convicted of capital murder. Those prospective jurors who indicate an unwillingness to vote for a death sentence are excluded from serving on capital juries. Research findings indicate that the death qualification process results in juries that are less demographically diverse, with fewer female and non-White jurors. Furthermore, such juries tend to exhibit a greater receptiveness to the prosecution’s arguments and are more inclined to render a death sentence.
Another unique feature of capital trials pertains to the instructions provided to jurors during the penalty phase. In most states, jurors are tasked with assessing and weighing aggravating factors that support a death sentence against mitigating factors that support a sentence of life imprisonment. Through post-verdict interviews with hundreds of capital jurors, the Capital Jury Project has revealed that jurors frequently encounter difficulties in comprehending both the concepts of “mitigation” and “weighing.” Additionally, many jurors erroneously assume that unless they vote for a death sentence, the defendant could become eligible for parole and potentially be released from prison. Similar to the death qualification process, the ambiguity inherent in penalty phase instructions tends to elevate the likelihood of a death sentence being imposed.
Deterrence and Death Penalty
Deterrence, the concept that the existence of the death penalty can dissuade potential murderers from committing the act, was one of the earliest rationales for capital punishment. Brutal execution methods such as breaking at the wheel, burning at the stake, decapitation, and disemboweling were believed to be particularly effective in instilling the fear needed to deter individuals contemplating capital crimes. However, despite the initial appeal of this theory, empirical research does not support the notion of a deterrent effect associated with the death penalty. The implementation or abolition of the death penalty does not seem to significantly impact murder rates.
Numerous studies have investigated whether capital punishment serves as a deterrent, often comparing homicide rates in jurisdictions with and without the death penalty or examining fluctuations in homicide rates when the death penalty is introduced or removed. Researchers have endeavored to statistically control for various factors known to influence violence rates, such as the size of the police force, the demographic composition of the population (including the number of young males), and unemployment rates. Researchers have also explored whether only crimes punishable by death (e.g., aggravated murder) are deterred, as well as the impact of the actual number of executions, as opposed to the mere availability of the death penalty.
The cumulative findings of over four decades of research indicate that the death penalty does not deter potential murderers. While some studies have identified a deterrent effect in specific jurisdictions over particular time periods, others have revealed what is known as the “brutalization effect.” This effect suggests a slight but consistent increase in the number of murders occurring in the weeks following an execution.
Research on deterrence often relies on extensive datasets collected over extended timeframes. However, the theory of deterrence also hinges on a psychological explanation of potential killers’ thought processes. For capital punishment to act as an effective deterrent, individuals contemplating murder would need to believe that there is a high likelihood of being apprehended, convicted, sentenced to death, and ultimately executed for their actions. Moreover, for the death penalty to serve as a more formidable deterrent than life imprisonment, potential offenders would need to view the prospect of eventual execution as significantly more terrifying than spending the rest of their lives in prison. Yet, even when assessing these probabilities rationally, it is not a guarantee that potential murderers would be deterred. Furthermore, since most homicides are committed under the influence of substances or intense emotions, it appears improbable that individuals contemplating murder engage in a rational weighing of such alternatives.
Public Opinion about Death Penalty
Media coverage frequently highlights the majority of Americans’ apparent support for capital punishment. Indeed, when asked a general question like, “Do you favor or oppose the death penalty for individuals convicted of murder?” approximately 66% of respondents express their support. However, this level of support has shown variation over time. For instance, in 1966, support for the death penalty dropped to 42%, but it rebounded to 79% by 1988. It’s noteworthy that this support varies based on demographic factors, with males being significantly more supportive than females, Whites more so than Blacks, and Republicans more supportive than Democrats.
While responses to such broad questions about support or opposition to the death penalty can provide a general sense of American attitudes at a given point in time, they can also be misleading. In-depth survey research reveals that support often relies on misconceptions regarding aspects like cost, the fairness of its application, or its effectiveness as a deterrent. Additionally, when alternative forms of punishment are introduced, support for the death penalty tends to decline. When respondents are asked to choose between “the death penalty” and “life in prison without the possibility of parole” for individuals convicted of murder, the public is nearly evenly divided. Furthermore, when the option of “life without parole plus restitution” is presented as an alternative to the death penalty, a majority of Americans express their endorsement for this alternative.
Wrongful Conviction and Execution
Determining the guilt of individuals accused of capital murder and whether they should face execution is entrusted to an imperfect legal system. The potential for wrongful conviction and the execution of innocent defendants has always been a central topic in the debate surrounding capital punishment, but the advent of DNA as a tool for criminal identification has amplified this argument. Over the past three decades, more than 120 individuals have been released from death row due to new evidence or the reexamination of existing evidence.
It’s crucial to recognize that the number of wrongful convictions exposed through DNA analysis represents only a fraction of the total cases. DNA-based exonerations are only possible if biological evidence (e.g., blood, semen, skin cells) was collected at the crime scene and preserved for future testing. It remains impossible to ascertain how many current death row inmates might be actually innocent. While clear evidence of guilt exists for most death row inmates, there may also be cases where wrongfully convicted individuals lack the means to prove their innocence, either due to insufficient evidence or limited resources.
Since the reinstatement of the death penalty in 1976, more than 1,000 condemned prisoners have been executed. It is exceedingly difficult to determine the exact number of potentially innocent prisoners among them. Once a prisoner has been executed, the legal system seldom entertains claims of innocence, and the focus of lawyers, investigators, and journalists shifts to cases where potentially innocent individuals can still be saved. Although definitively proving wrongful executions is challenging, there are several instances where compelling evidence suggests that an innocent person was executed (e.g., cases like Ruben Cantu, Gary Graham, Larry Griffin, James O’Dell, Leo Jones).
The grim reality of wrongful convictions and executions raises a fundamental question: Does the retention of the death penalty hold such value that it justifies the occasional risk of sending an innocent person to death row and, potentially, to the execution chamber?
If the decision to retain or abolish capital punishment were solely guided by research findings, it might have been abolished long ago. However, like many significant social policies, this decision is influenced not only by empirical evidence but also by emotional and political factors.
References:
- Atkins v. Virginia, 536 U.S. 304 (2002).
- Bedau, H. A. (2004). Killing as punishment. Boston: Northeastern University Press.
- Costanzo, M. (1987). Just revenge: Costs and consequences of the death penalty. New York: St. Martin’s Press.
- Dow, D. R. (2005). Executed on a technicality. Boston: Beacon Press.
- Furman v. Georgia, 408 U.S. 238 (1972).
- Gregg v. Georgia, 428 U.S. 153 (1976).
- Myers, B., & Greene, E. (2004). The prejudicial nature of victim impact statements: Implications for capital sentencing policy. Psychology, Public Policy, and Law, 10, 492-515.
- O’Neil, K. M., Patry, M. W., & Penrod, S. D. (2004). Exploring the effects of attitudes toward the death penalty on capital sentencing verdicts. Psychology, Public Policy, and Law, 10, 443-470.
- Osofsky, M. J., Bandura, A., & Zimbardo, P. G. (2005). The role of moral disengagement in the execution process. Law and Human Behavior, 29, 371-393.
- Roper v. Simmons, 543 U.S. 551 (2005). Zimring, F. E. (2003). The contradictions of American capital punishment. New York: Oxford University Press.