case study supporting death penalty

Sentenced to death, but innocent: These are stories of justice gone wrong.

Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them.

A version of this story appears in the March 2021 issue of National Geographic magazine.

A 63-year-old man named Kwame Ajamu lives walking distance from my house in a suburb of Cleveland, Ohio. Ajamu was sentenced to death in 1975 for the murder of Harold Franks, a money order salesman on Cleveland’s east side. Ajamu was 17 when he was convicted.

Ajamu, then named Ronnie Bridgeman, was found guilty primarily because of the testimony of a 13-year-old boy, who said he saw Bridgeman and another young male violently attack the salesman on a city street corner. Not a shred of evidence, forensic or physical, connected Bridgeman to the slaying. He had no prior criminal record. Another witness testified that Bridgeman was not on the street corner when Franks was killed. Yet mere months after his arrest, the high school junior was condemned to die.

It would be publicly revealed 39 years later that the boy who testified against him had immediately tried to recant his statement. But Cleveland homicide detectives told the boy they would arrest and charge his parents with perjury if he changed his story, according to his later court testimony. Ajamu was released on parole in 2003 after 27 years in prison, but the state of Ohio would not declare him innocent of the murder for nearly another 12 years, when the boy’s false statement and police misconduct were revealed in a related court hearing.

I interviewed Ajamu and others who represent vastly different backgrounds but share a similar, soul-crushing burden: They were sentenced to death after being convicted of crimes they didn’t commit.

(*Figures in all captions are rounded to the nearest year and don’t include time in jail pre-sentencing.)  

The daily paths they travel as former death-row inmates are every bit as daunting, terrifying, and confusing as the burden of innocence that once taunted them. The post-traumatic stress faced by a wrongly convicted person who has awaited execution by the government doesn’t dissipate simply because the state frees the inmate, apologizes, or even provides financial compensation—which often is not the case.

The lesson is as charged as superbolt lightning: An innocent man or woman sentenced to die is the perfect witness against what many see as the inherent immorality and barbarity of continuing capital punishment.

It’s a particularly poignant lesson in a nation that executes people at a rate outpaced by few others—and where factors such as a defendant’s or victim’s race, low income, or inability to counter overly zealous police and prosecutors can put the accused at increased risk of a wrongful conviction that could lead to execution. Race is a particularly strong determinant: As of April 2020, Black people made up more than 41 percent of those on death row but only 13.4 percent of the U.S. population.

During the past three decades, groups such as the Innocence Project have shed light on how dangerously fallible the U.S. justice system can be, particularly in capital cases. DNA testing and scrutiny of actions by police, prosecutors, and public defenders have helped exonerate 182 people from death row since 1972, and as of December 2020 had led to more than 2,700 exonerations overall since 1989.

Each of the former death-row inmates I interviewed belongs to an organization called Witness to Innocence . Based in Philadelphia since 2005, WTI is a nonprofit led by exonerated death-row inmates. Its primary goal is to see the death penalty abolished in the U.S. by shifting public opinion on the morality of capital punishment.

During the past 15 years, WTI’s outreach targeting the U.S. Congress, state legislatures, policy advisers, and academics has been credited with helping to abolish the death penalty in several states, though it remains legal in 28 states, the federal government, and the U.S. military. In 2020, 17 people were executed in the U.S., 10 by the federal government. It was the first time more prisoners were executed by the federal government than by all of the states combined.

“I was abducted by the state of Ohio when I was 17 years old,” Ajamu began our conversation when we met on my backyard patio.

“I was a child when I was sent to prison to be killed,” Ajamu, now chairman of WTI’s board, told me. “I did not understand what was happening to me or how it could happen. At first I begged God for mercy, but soon it dawned on me that there would be no mercy coming.”

The day Ajamu arrived at the Southern Ohio Correctional Facility, a maximum-security prison in rural Ohio, he was escorted to a cellblock filled with condemned men. At the end of death row was a room that held Ohio’s electric chair. Before the guards put him in his cell, they made a point of walking him past that room.

“One of the guards really wanted me to see that chair,” Ajamu recalled. “I’ll never forget his words: ‘That’s gonna be your hot date.’ ”

From the time Ajamu was sentenced to die until 2005—when the U.S. Supreme Court ruled that executing juveniles violated the Constitution’s ban on cruel and unusual punishment—the nation executed 22 people who were convicted of a crime committed when they were under age 18, according to the Death Penalty Information Center (DPIC) .

The high court’s ruling countered a history of executing juveniles that began long before the United States was conceived. The first known case of a juvenile executed in the British colonies was in 1642 in the Plymouth Colony, where Thomas Granger, 17, was hanged. His alleged offense was sodomy with livestock.

In the earliest days of the nation, even younger children were subject to the harshest of all judicial penalties. Hannah Ocuish, 12, a Native American girl, was hanged in New London, Connecticut, in 1786 for murder. Two enslaved boys—a 12-year-old convicted of murder and a 13-year-old convicted of arson—were hanged in Virginia in 1787 and 1796, respectively.

For most of the next 200 years, age was ignored as a factor in sentencing. Juveniles and adults alike were tried, convicted, and executed based on their crimes, not their maturity. Available criminal records don’t cite the age of the executed regularly until around 1900. By 1987, when the U.S. Supreme Court first agreed to consider the constitutionality of the death penalty for minors, some 287 juvenile executions had been documented. When the Supreme Court ruled in 1978 that Ohio’s death penalty law violated the Eighth Amendment’s ban on cruel and unusual punishment, as well as the 14th Amendment’s requirement of equal protection under the law, Ajamu’s death sentence was reduced to life in prison. Still, he lingered behind bars for another quarter of a century, when he was released on parole. He wouldn’t be exonerated until 2014, after a crusading reporter for a Cleveland magazine and the Ohio Innocence Project helped unravel the lie that had sent Ajamu to death row.

“There is a wide array of blunders that can cause erroneous convictions in capital cases,” said Michael Radelet, a death penalty scholar and sociologist at the University of Colorado Boulder. “Police officers might secure a coerced or otherwise false confession. Prosecutors occasionally suppress exculpatory evidence. Sometimes there is a well-intentioned but mistaken eyewitness identification. Most common is perjury by prosecution witnesses.”

Few opponents of capital punishment summarize the case against state-sponsored executions more bluntly than Sister Helen Prejean, co-founder of WTI and author of Dead Man Walking, the best-selling book that inspired the 1995 film of the same title, starring Susan Sarandon and Sean Penn.

The plainspoken nun described how her animus toward the death penalty became personal by recalling her fear of a fairly routine dental experience she underwent years ago.

“I had to have a root canal on a Monday morning,” she told me. “The whole week before that root canal, I dreamt about it. As the appointment got closer, the more nervous I became.”

She continued, “Now imagine anticipating your scheduled appointment to be put to death. The six people that I’ve accompanied onto death row all had the same nightmare. The guards were dragging them from their cells. They cry for help and struggle. Then they wake up and realize that they are still in their cells. They realize it’s just a dream. But they know that one day the guards are really going to come for them, and it won’t be a dream. That’s the torture. It’s a torture that as of yet our Supreme Court refuses to recognize as a violation of the Constitution’s prohibition against cruel and unusual punishments.”

More than 70 percent of the world’s nations have rejected the death penalty in either law or practice , according to the DPIC. Of the places where Amnesty International has recorded recent executions, the U.S.—which has the highest incarceration rates in the world—was one of just 13 countries that held executions every one of the past five years. Americans’ support for capital punishment has dropped significantly since 1996, when 78 percent supported the death penalty for people convicted of murder. By 2018, support had fallen to 54 percent, according to the Pew Research Center.

“If I were to be murdered,” wrote Prejean, “I would not want my murderer executed. I would not want my death avenged— especially by government —which can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill.”

Before Ray Krone was sentenced to die, his life bore no resemblance to Ajamu’s. From tiny Dover, Pennsylvania, Krone was the eldest of three children and a typical small-town American boy. Raised a Lutheran, he sang in a church choir, joined the Boy Scouts, and as a teenager was known as a fairly smart kid, a bit of a prankster. He pre-enlisted in the Air Force during high school; after graduating, he served for six years.

Having received an honorable discharge, he stayed in Arizona and went to work for the U.S. Postal Service, a job he planned to keep until retirement.

That career dream—and his life—were abruptly shattered in December 1991, when Kim Ancona, a 36-year-old bar manager, was found stabbed to death in the men’s bathroom of a Phoenix lounge that Krone frequented.

Police immediately zeroed in on Krone as a suspect after learning that he’d given Ancona, whom he knew casually, a ride to a Christmas party a few days earlier. The day after her body was discovered, Krone was ordered to provide blood, saliva, and hair samples. A dental cast of his teeth also was created. The next day he was arrested and charged with aggravated murder.

Investigators said the distinctive misalignment of Krone’s teeth matched bite marks on the victim’s body. Media reports would soon derisively refer to Krone as the “snaggletooth” killer. As was the case with Ajamu, there was no forensic evidence linking Krone to the crime. DNA was a fairly new science, and none of the saliva or blood collected at the crime scene was tested for DNA. Simpler blood, saliva, and hair tests were inconclusive. Exculpatory evidence was available but ignored, such as shoe prints found around the victim’s body that didn’t match the size of Krone’s feet or any shoes he owned.

Based on little more than the testimony of a dental analyst who said the bite marks on the victim’s body matched Krone’s misaligned front teeth, a jury found Krone guilty. He was sentenced to death.

“It’s a devastating feeling when you recognize that everything you’ve ever believed in and stood for has been taken away from you, and without just cause,” Krone told me. “I was so naive. I didn’t believe this could actually happen to me. I had served my country in uniform. I worked for the post office. I wasn’t perfect, but I had never been in trouble. I’d never even gotten a parking ticket, but here I was on death row. That’s when I realized that if it could happen to me, it could happen to anyone.”

The Maricopa County Attorney’s Office spent upwards of $50,000 on the prosecution, centered on its bite-mark theory, while the consulting dental expert for Krone’s publicly funded defense was paid $1,500. This discrepancy in resources available to prosecutors and defendants in capital cases has long been replicated across the nation, leading to predictable outcomes for defendants staked to under-resourced and often ineffective legal counsel.

Krone got a new trial in 1995, when an appeals court ruled that prosecutors had wrongly withheld a videotape of the bite evidence until the day before the trial. Again, he was found guilty. Prosecutors relied on the same dental analysts who’d helped convict Krone the first time. But this time the sentencing judge ruled that a life sentence was appropriate, not death.

Krone’s mother and stepfather refused to give up on their belief in their son’s innocence. They mortgaged their house, and the family hired their own lawyer to look into the physical evidence collected during the original investigation. Over objections by the prosecution, a judge granted a request by the family’s lawyer to have an independent lab examine DNA samples, including saliva and blood from the crime scene.

In April 2002 the DNA test results showed that Krone was innocent. A man named Kenneth Phillips, who lived less than a mile from the bar where Ancona was killed, had left his DNA on clothes Ancona had been wearing. Phillips was easy to find: He already was in prison for sexually assaulting and choking a seven-year-old girl.

When Krone was released from prison four days after the DNA test results were announced, he became known as the hundredth man in the United States since 1973 who’d been sentenced to death but later proved innocent and freed.

Gary Drinkard was no choirboy. He’d had prior brushes with the law when Dalton Pace, a junk dealer, was robbed and killed in Decatur, Alabama, in August 1993.

Police arrested Drinkard, then 37, two weeks later when Beverly Robinson, Drinkard’s half sister, and Rex Segars, her partner, struck a deal with police that implicated Drinkard in the slaying. Facing unrelated robbery charges that also potentially implicated Drinkard, the couple agreed, in exchange for the charges being dropped against them, to cooperate with police and testify that Drinkard told them he’d killed Pace.

When I spoke with Drinkard, he reminded me of a weather-beaten man straight out of a Merle Haggard song. He wore coveralls and chain-smoked Newports. He spoke slowly and guardedly in a deep southern drawl. He grew exasperated only when I asked him to describe his time on death row.

“I thought they were going to kill me,” Drinkard said. That certainly seemed to be the plan. Using testimony from their star witnesses (the half sister and her partner), prosecutors hammered home the alleged confession while improperly influencing the jury with references to Drinkard’s alleged involvement in those earlier thefts. Drinkard’s public defenders, who had no experience in capital cases and very little in criminal law, mostly stood mute. They made no real attempt to introduce evidence that could have proved their client’s innocence. Drinkard was found guilty in 1995 and sentenced to death. He would spend close to six years on death row.

In 2000 the Supreme Court of Alabama ordered a new trial because of the prosecution’s introduction of Drinkard’s criminal history.

“Evidence of a defendant’s prior bad acts … is generally inadmissible. Such evidence is presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged,” the court wrote in granting a new trial.

Drinkard’s case had drawn the attention of the Southern Center for Human Rights, an organization that fights capital punishment. It provided him with legal counsel. At Drinkard’s 2001 retrial, his lawyers introduced evidence that indicated Drinkard was suffering from a debilitating back injury and was heavily medicated at the time of the slaying. Drinkard’s lawyers argued that he had been at home and on workers’ compensation when Pace was killed, so he couldn’t have committed the crime. A county jury found Drinkard not guilty within one hour, and he was released.

“I was not opposed to capital punishment until the state tried to kill me,” Drinkard said.

There have been more than 2,700 exonerations overall in the U.S. since 1989, the first year that DNA became a factor, according to the National Registry of Exonerations.

In 1993 Kirk Bloodsworth was the first person in the nation to be exonerated from death row based on DNA evidence. Bloodsworth was arrested in 1984 and charged with raping and murdering Dawn Hamilton, a nine-year-old girl, near Baltimore, Maryland. Police were alerted to Bloodsworth, who had just moved to the area, when an anonymous tipster reported him after seeing a televised police sketch of the suspect.

Bloodsworth bore little resemblance to the suspect in the police sketch. No physical evidence linked him to the crime. He had no prior criminal record. Yet Bloodsworth was convicted and sentenced to death based primarily on the testimony of five witnesses, including an eight-year-old and a 10-year-old, who said they could place him near the murder scene. Witness misidentification is a factor in many wrongful convictions, according to the DPIC.

“Give him the gas and kill his ass,” Bloodsworth recalled people in the courtroom chanting after he was sentenced. All the while, he wondered how he could be sentenced to die for a ghastly crime he hadn’t committed.

He was granted a second trial nearly two years later, after it was shown on appeal that prosecutors had withheld potentially exculpatory evidence from his defense, namely that police had identified another suspect but failed to pursue that lead. Again, Bloodsworth was found guilty. A different sentencing judge handed Bloodsworth two life sentences, rather than death.

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“I had days when I was giving up hope. I thought I was going to spend the rest of my life in prison. And then I saw a copy of Joseph Wambaugh’s book,” Bloodsworth said.

That 1989 book, The Blooding, describes the then emerging science of DNA testing and how law enforcement had first used it to both clear suspects and solve a rape and murder case.

Bloodsworth wondered whether that science could somehow clear his name.

When he asked whether DNA evidence could be tested to prove that he was not at the crime scene, he was told the evidence had been destroyed inadvertently. That wasn’t true. The evidence, including the girl’s underwear, later was found in the courthouse. Prosecutors, sure of their case, agreed to release the items.

Once the items were tested, usable DNA was detected—none of it Bloodsworth’s. He was freed, and six months later, in December 1993, Maryland’s governor granted him a full pardon. It would be almost another decade before the actual killer was charged. The DNA belonged to a man named Kimberly Shay Ruffner, who had been released from jail two weeks before the girl’s murder. For a time Ruffner, who was given a 45-year sentence for an attempted rape and attempted murder soon after Bloodsworth’s arrest, and Bloodsworth were housed in the same prison. Ruffner pleaded guilty to Hamilton’s murder and was sentenced to life in prison.

Today Bloodsworth is the executive director of WTI and a tireless campaigner against capital punishment. The Innocence Protection Act, signed into law by President George W. Bush in 2004, established the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program to help defray the cost of DNA testing after conviction.

“I was poor and had only been in the Baltimore area for 30 days when I was arrested,” said Bloodsworth, now 60. “When I tell people my story and how easy it is to be convicted of something of which you’re innocent, it often causes them to rethink the way the criminal justice system works. It doesn’t require much of a stretch to believe that innocent people have been executed.”

Sabrina Butler discovered that Walter, her nine-month-old son, had stopped breathing shortly before midnight on April 11, 1989. An 18-year-old single mother, Butler responded with urgent CPR. When the child could not be revived after several minutes, she raced him to a hospital in Columbus, Mississippi, where he was pronounced dead on arrival. Less than 24 hours later she was charged with murder.

Walter had serious internal injuries when he died. Butler told police investigators she believed that the injuries were caused by her efforts to revive him. Police doubted her story, and after several hours of interrogation, without a lawyer present, she signed a statement that said she’d struck her baby in the stomach after he wouldn’t stop crying. Eleven months later Butler was convicted of murder and sentenced to die.

Butler’s defense team called no witnesses. A medical expert might have testified that Walter’s injuries were consistent with the clumsy CPR of a desperate mother. A neighbor—who was called as a witness during a subsequent trial—could have provided helpful testimony of Butler’s attempts to save her son’s life. Instead Butler’s court-appointed lawyers, including one who specialized in divorce law, neither called witnesses nor put Butler on the witness stand to support her case.

“Here I was, this young Black child in a room full of white adults,” Butler, now Sabrina Smith, recalled. “I did not understand the proceedings. All that I had been told by my attorneys was to sit quietly and look at the jury. When I realized my defense wasn’t going to call any witnesses to help prove my innocence, I knew my life was over.”

Butler’s conviction and sentence were set aside in August 1992, after Mississippi’s supreme court ruled that the prosecutor had improperly commented on her failure to testify at trial. A new trial was ordered.

The second trial, with better lawyers, working pro bono, resulted in exoneration. A neighbor testified about Butler’s frantic attempts to revive her child. A medical expert testified that the child’s injuries could have resulted from the CPR efforts. Evidence also was introduced indicating that Walter had a preexisting kidney condition that likely contributed to his sudden death. Butler was released after spending five years in prison, the first half of that on death row.

Less than two years after her exoneration, Butler, the first of just two American women ever to be exonerated from death row, received a summons for jury duty.

“I was so appalled,” she told me. “I went downtown and spoke to the court administrator. I explained to him that the state of Mississippi had tried to kill me. I told him I was quite certain that I would not make a good juror.” She was dismissed.

A question that frequently confounds exonerees and the general public alike is whether a consistent formula exists for compensating the falsely convicted, especially those sentenced to die. The short answer is no. A small number of exonerees have been compensated for millions of dollars depending on the laws of the state that convicted them, but many receive little or nothing.

Few death-row exonerees more closely follow the issue of compensation than Ron Keine, who lives in southeastern Michigan. Keine has made it part of his life’s mission to improve the plight of the wrongly convicted, who often reenter society with meager survival skills. He wasn’t always so benevolent.

Growing up in Detroit, Keine ran with a rough crowd. He’d been shot and stabbed before he turned 16. At age 21, he and his closest friend, who both belonged to a notorious motorcycle club, decided to drive a van across the U.S.

The extended open-road party was going as planned until he and four others were arrested in 1974 in Oklahoma and extradited to New Mexico, where they were charged with the murder and mutilation of a 26-year-old college student in Albuquerque. A motel housekeeper reported that the group raped her and that she then saw the group kill the student at the same motel.

The problem with the story should have been readily apparent. The bikers weren’t in Albuquerque when William Velten, Jr., the student, was killed. They were partying in Los Angeles and had a dated traffic citation to prove it. The housekeeper later recanted her story.

In September 1975 a drifter, Kerry Rodney Lee, confessed to killing Velten, possibly because he felt guilty knowing that four men were on death row for his crime. The gun used in Velten’s slaying matched a gun stolen from the father of Lee’s girlfriend. Based on this evidence, Keine and his biker friends were granted new trials and the prosecutor decided not to indict them. Lee was convicted in May 1978 of murdering Velten.

“When I was on death row, I knew I was innocent, but I still came within nine days of my first scheduled execution date,” said Keine, now 73. “I didn’t have a voice. So when I got out, I decided I was going to spend my life being a thorn” in the side of the criminal justice system. “I decided that I was going to go from dead man walking to dead man talking.”

Keine, who founded several successful small businesses after his exoneration, has testified before state legislators seeking to overturn capital punishment laws. Having received only a $2,200 settlement from the county that put him on death row, he has been vocal in calling for a system of compensation for others wrongly sentenced to death.

“When people get off death row, they feel like a piece of shit,” he said. “They don’t have any self-worth—no self-esteem, and they usually don’t have two nickels in their pocket. We try to build them up. We try and help them find the resources they need to survive.”

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A Vast Racial Gap in Death Penalty Cases, New Study Finds

Defendants convicted of killing white people, the study found, were far more likely to be executed than the killers of Black people.

By Adam Liptak

WASHINGTON — Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found. Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus .

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp . By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution.

The decision has not aged well.

In 1991, after he retired, Justice Lewis F. Powell Jr. , the author of the majority opinion, was asked whether there was any vote he would like to change.

“Yes,” he told his biographer. “McCleskey v. Kemp.”

One of the dissenters in the case, Justice John Paul Stevens, was still stewing over it after his own retirement in 2010.

“That the murder of Black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” he wrote that year in The New York Review of Books.

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Death Penalty & Criminal Sentencing Supreme Court Cases

The Eighth Amendment to the U.S. Constitution prohibits the imposition of cruel and unusual punishment. The Supreme Court most often considers Eighth Amendment principles in the context of the death penalty, which remains in effect in many states and at the federal level. However, “three strikes” laws and certain other sentencing provisions may trigger Eighth Amendment scrutiny as well.

The Supreme Court has emphasized that a sentence does not need to be strictly proportionate to the crime to meet constitutional requirements. Meanwhile, it has limited capital punishment to a narrow range of crimes and forbidden its imposition on certain types of defendants.

Below is a selection of Supreme Court cases involving the death penalty and criminal sentencing, arranged from newest to oldest.

Author: Brett Kavanaugh

A sentencer need not make a separate factual finding of permanent incorrigibility before sentencing a murderer under 18 to life without parole.

Author: Neil Gorsuch

To establish that a state's chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason.

Author: Elena Kagan

The Eighth Amendment may permit executing a prisoner even if he cannot remember committing his crime. On the other hand, the Eighth Amendment may prohibit executing a prisoner even though he suffers from dementia or another disorder, rather than psychotic delusions.

Author: Samuel A. Alito, Jr.

To succeed in an Eighth Amendment method of execution claim, a prisoner must establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.

The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.

Author: Anthony Kennedy

The Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime.

The Eighth Amendment is defined by the evolving standards of decency that mark the progress of a maturing society. This principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim's life.

Author: Ruth Bader Ginsburg

Without an appeal or cross-appeal by the prosecution, a federal appellate court cannot order an increase in the sentence of a defendant on its own initiative.

Author: John Roberts

To constitute cruel and unusual punishment, an execution method must present a substantial or objectively intolerable risk of serious harm.

Author: Clarence Thomas

A state death penalty statute may direct imposition of the death penalty when the state has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including when the two are in equipoise.

Author: Stephen Breyer

A state may limit the innocence-related evidence that a capital defendant can introduce at a sentencing proceeding to the evidence introduced at the original trial.

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

Author: Sandra Day O’Connor

Nothing in the Eighth Amendment prohibits a state from choosing to incapacitate criminals who have already been convicted of at least one serious or violent crime.

Author: John Paul Stevens

Executions of mentally retarded criminals are cruel and unusual punishments prohibited by the Eighth Amendment.

The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

Author: Antonin Scalia

The Eighth Amendment does not require strict proportionality between crime and sentence but instead forbids only extreme sentences that are grossly disproportionate to the crime.

Author: Byron White

The Constitution does not require that every finding of fact underlying a sentencing decision be made by a jury rather than a judge.

Author: Lewis Powell

A complex statistical study indicating a risk that racial considerations enter into capital sentencing determinations does not necessarily prove that a particular defendant's capital sentence was unconstitutional.

The Eighth Amendment does not prohibit the death penalty as disproportionate in the case of a defendant whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference.

Author: Thurgood Marshall

The Eighth Amendment prohibits a state from inflicting the death penalty on a prisoner who is insane.

The Eighth Amendment does not require that a state appellate court, before it affirms a death sentence, compare the sentence in the case before it with the penalties imposed in similar cases if requested to do so by the defendant.

Criteria to consider in an Eighth Amendment proportionality analysis include the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the commission of the same crime in other jurisdictions.

The death sentence may not constitutionally be imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included offense.

Author: Warren Burger

The Eighth Amendment generally requires that the sentencer not be precluded from considering mitigating factors related to any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

The sentence of death for the crime of rape violates the Eighth Amendment.

Author: John Paul Stevens , Lewis Powell , Potter Stewart

The punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments. (This decision ended the temporary moratorium on the death penalty imposed by Furman .)

Author: Per Curiam

The imposition of the death penalty in these cases constituted cruel and unusual punishment in violation of the Eighth Amendment. (Concerns over the arbitrary and potentially discriminatory manner in which death sentences had been imposed led to a temporary nationwide moratorium on the death penalty as legislatures reviewed laws governing its administration.)

Author: Hugo Black

In considering the sentence to be imposed after a conviction, the sentencing judge is not restricted to information received in open court. This is true even when a death sentence is imposed.

Author: Joseph McKenna

The Eighth Amendment is progressive and may acquire wider meaning as public opinion becomes enlightened by humane justice.

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• Copy URL https://www.pbs.org/newshour/nation/death-penalty-bring-closure-victims-family

Does the death penalty bring closure to a victim’s family?

The last time anyone saw julie heath alive was oct. 3, 1993, when the 18-year-old set out to visit her boyfriend in hot springs, arkansas..

A week later, a hunter discovered Heath’s body, less than eight miles from where her broken-down car was found. She wore a black shirt, socks and underwear, but they were inside-out. Her black jeans were partially unzipped. Her throat was slashed.

Police later arrested Eric Randall Nance for Heath’s murder. Investigators said he picked her up near her vehicle, before DNA evidence proved he raped and killed her. In 1994, he was handed the death penalty. At the time, 80 percent of Americans nationwide favored the death penalty , according to a Gallup poll. But the only reason Belinda Crites needs to support the death penalty is “what Eric Nance did to my cousin.”

“She wasn’t just my cousin, she was my best friend,” Crites told the NewsHour. “He tore my whole family apart.”

Nance’s execution in 2005 marked the last time Arkansas put a prisoner to death. This week, Arkansas executed Ledell Lee, the first of eight men the state had originally planned to put to death in the 11 days after Easter Sunday. No state has executed so many people so quickly since 1976 when the Supreme Court reinstated capital punishment, said Robert Dunham with the Death Penalty Information Center.

The conflict in Arkansas is the latest to politicize the death penalty — but for families of the victims and the prisoners, it also resurfaces the complicated issues of closure and the long-reaching effect of these executions on their communities.

Arkansas justified its unusually swift schedule by saying the state’s supply of lethal injection drugs were about to expire, and pharmaceutical companies have refused to replenish stocks. A series of judicial rulings blocked the scheduled executions of the first four men: Jason McGehee, Bruce Ward, Don Davis and Stacey Johnson. The three men who remain are, at the moment, still scheduled to die before the month is out.

The idea of closure is powerful. It’s something Arkansas invoked in an April 15 motion that tried to fight a temporary restraining order that McKesson Medical Surgical, Inc., has used to block the use of its drug vecuronium bromide in state executions. (The drug is typically used as general anesthesia to relax muscles before surgery).

“The friends and family of those killed or injured by Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don Davis, and Terrick Nooner have waited decades to receive some closure for their pain,” it read.

But even when executions take place, a surviving family’s pain doesn’t disappear with the perpetrator’s pulse.

It’s been more than two decades since Heath’s death. But Belinda Crites, a 41-year-old caregiver who still lives in her hometown of Malvern, Arkansas, finds laughter in her sweet memories of her cousin. A high school cheerleader, Heath wanted to be a police officer one day. She worked two jobs — at Taco Bell and a blue jean factory — and before she died, she earned enough money to buy a beat-up 1957 black Mustang. With each paycheck, Julie bought a new part, and she and her father, William Heath, restored the car together.

Whenever Crites visited her cousin’s house, they’d pile into bed together and watch episodes of their favorite television sitcom, “Family Matters.” For Christmas, Crites, Heath and both of their mothers dressed in matching outfits — nice jeans, ties or whatever was the latest fad — and baked cookies. The two mothers were inseparable, working and raising their families together. Crites and her cousin “always said we’d be just like them,” Crites said.

But after Heath’s murder, Crites said her family fell apart. Her mother, aunt and grandmother were all diagnosed with depression and needed medication. When Nancy Heath — her aunt and Julie’s mother — hugged Crites, she ran her fingers through Crites’ hair, long like her dead cousin’s; she held her tight, Crites said, as if she were “just trying to get a piece of Julie back.”

The family watched as Nancy Heath wasted away. They cried and hugged each other on March 31, 1994, when a jury sentenced Nance to death. But after the family left the courtroom and got into their cars to drive home, Heath became incoherent. Her husband rushed her to the hospital, where doctors observed her overnight, Crites said.

Nancy Heath’s psychologist later begged her to at least eat bananas and watermelon, but she refused food. If she left Crites’ house to go to the store, her family knew to follow her — often, she drove instead in the direction of the cemetery where Julie was buried. Crites’ mother once found Nancy Heath there overdosed on pills. Crites said her aunt attempted suicide at least four times before she killed herself on Christmas morning in 1994, 15 months after her daughter’s murder.

“Some people wanted to judge [Nancy for her] suicide,” Crites said. “But my aunt — she couldn’t cope. She couldn’t go on. She wanted to go on so bad. She tried so hard.”

In 2015, the FBI reported nearly 15,700 homicides nationwide. And a 2007 study suggested that for every homicide victim, six to 10 family members are “indirectly victimized.” That figure excludes the many friends, colleagues, neighbors or other people who also suffer when a person they know is murdered. When they grieve, survivors must not only figure out how life goes on without their loved one in it, but also process the violence behind that person’s death.

Death penalty advocates and politicians, including Arkansas Attorney General Leslie Rutledge, argue that when the state executes a person who has committed a terrible crime, the act brings closure to victim’s family. But it’s not that simple.

If you ask murder victims’ families, “closure is the F-word,” said Marilyn Armour, who directs the Institute for Restorative Justice and Restorative Dialogue at the University of Texas at Austin. She’s researched homicide survivors for two decades. “They’ll tell you over and over and over again that there’s no such thing as closure.”

In 2012, Armour and University of Minnesota researcher Mark Umbreit interviewed 20 families of crime victims in Texas — a state which regularly uses the death penalty — and 20 more families in Minnesota, which instead offers life without parole. They were curious about how families in both states coped with the sentences.

The 2012 study concluded families in Minnesota were able to move on sooner; because their loved ones’ killers were sentenced to life without parole, rather than the death penalty, they weren’t retraumatized in the multiple appeals that often precede an execution. Armour cautions their sample was small. But over the last two decades, murder victims’ families have received better treatment and far more rights, Armour said. Rather than listen to the families homicide victims leave behind, society often uses these people and their pain to score political points in the death penalty debate, Armour said.

“Murder victims families are cast aside,” Armour said. “Nobody is giving survivors voice value.”

What Armour sees unfolding in Arkansas is political, she told the NewsHour. She doesn’t think it should be.

Arkansas State Representative Rebecca Petty, on the other hand, has made her mission to bring the issue to politics. In 1999, Petty’s 12-year-old daughter, Andria Brewer, was kidnapped from her younger sister’s birthday party by her uncle, Karl Roberts. He raped and strangled her, covering her body with leaves on an old logging road near Mena, Arkansas.

Andria Nichole Brewer, 12, was attending her youngest sister’s fourth birthday party when Brewer’s uncle, Karl Roberts, abducted her. He then raped and killed her, hiding her body near an old logging road near Mena, Arkansas, about 10 miles from her home. Photo courtesy of Rebecca Petty

Before that happened, Petty said her family had never experienced crime, so she never gave the death penalty much thought. “When it happens to your own child you gave birth to, you taught to walk and talk and [lived with] 12 years, that’s the point — it makes up your mind for you.”

In June 2000, Roberts waived his right to appeal the case in court . He confessed and was convicted for murdering his niece; he was sentenced to die on Jan. 6, 2004. Petty said she and her family prayed and decided to go watch Roberts’ execution. But shortly before he was supposed to be lethally injected, Roberts said he changed his mind and wanted to appeal after all. Petty left the prison that bitterly cold night in disbelief. Roberts still sits on death row, but his execution remains unscheduled.

Since then, Petty entered politics and has advocated for victims’ rights. She secured funding to expand the witness area attached to the execution chamber on Arkansas’ death row. When she considered what would result from Arkansas’ original plan to execute eight men in 11 days, Petty said it won’t offer closure, but “will close chapters for these families.”

“In your life, you have chapters,” Petty said. “This is going to be a chapter for these families they can close. It’s not going to be an easy chapter. For some of them it could be one of the last chapters of their life.”

But Judith Elane, a lifelong death penalty abolitionist and former attorney who lives in Little Rock, Arkansas, doesn’t see it that way. The 72-year-old said because the death penalty is not applied to all homicides, it leaves surviving family members with the impression that the justice system values some victims more than others.

Her principles were put to the test after her brother, Gene Schlatter was shot and killed in November 1968 in a Denver bar with four witnesses. He was 36. Elane drove from western Canada, where she lived at the time, to his funeral, where she mourned with his three children and widow. Four decades later, in 2009, detectives traced evidence to a woman they believed was guilty of the crime. But witnesses disappeared, changed their story or suffered dementia and couldn’t testify in court. Despite other evidence, the woman walked away, and no one was prosecuted for the murder.

To manage her grief, Elane joined support groups and now leads Murder Victims Families for Reconciliation in Arkansas. She scoffed at politicians who offer closure through capital punishment. “The governor likes to say he does this because victims’ families deserve closure,” she said. “Every time I hear that, I think, ‘you’re not doing it for me. It didn’t help me.’”

Six out of 10 Arkansans favor use of the death penalty, according to a recent poll of 550 Arkansas voters from Talk Business & Politics and Hendrix College, bolstering Gov. Asa Hutchinson’s call for expedited execution . But nationwide, support for the death penalty is at its lowest point in four decades, with half of U.S. adults saying states should not execute their worst criminals, according to Pew Research Center.

When states use capital punishment, the decision has consequences not only for the murder victims’ families, jurors and the person sentenced to die, but also for the prison personnel responsible for carrying out death sentences and the families of people who sit on death row.

Unlike politicians, correctional officers who work on death row are also “going to go home and live with the psychological consequences for the rest of their lives and so will their families,” said Patrick Crane, who worked on Arkansas’ death row from 2007 to 2008. Turnover is high, he said. And the state’s series of executions has taken advantage of prison staff who live in rural farm communities with few jobs, where households “still have an old way of thinking and doing and being.”

“Metaphysically, I think it’s going to be a cloud over the state, especially over the area in which it happens,” Crane said. “Clouds last a long time down there.”

In Arkansas’ expedited schedule to execute people on death row, the voices of victims families and the victims themselves are lost in sensationalism, Elane said. If politicians and policymakers care about homicide victims and their families, she said those voices need to be heard. The money saved by issuing life without parole sentences — which tends to have fewer appeals — could improve law enforcement and investigations, she said.

For now, she campaigns on behalf of murder victims families, bringing attention to their needs immediately following the death of a loved one.

“Regardless of how we feel about the death penalty, we all experienced the same suffering and the same dilemmas,” Elane said.

For 12 years, Nance sat on “The Row” in the Varner Supermax penitentiary near Pine Bluff, Arkansas, while his attorneys tried to appeal his execution. For years, they argued he had the mental capacity of a third grader, and that the state would be cruel to kill him because he did not fully understand rape and murder were wrong. His case made it all the way to the U.S. Supreme Court. There, the justices decided not to spare Nance’s life.

Members of the Nance family who testified on his behalf did not return NewsHour’s request for comment.

For his final meal before his Nov. 28, 2005, execution, Nance asked for two bacon cheeseburgers, French fries, two pints of chocolate chip cookie dough ice cream and two cans of Coca-Cola. More than a decade later, Crites still resents that Nance had a chance to choose that meal.

“My cousin died with tater tots and a Coke on her stomach,” she said.

READ MORE: Painter immortalizes last meals of 600 prisoners put to death

Crites and her family drove a van to the prison and were escorted to the warden’s office, where they watched the execution chamber on a tiny closed-circuit television set. On the screen, Crites saw Nance strapped flat on his back to a gurney with a white sheet pulled up to his neck. He said nothing.

Prison staff injected Nance with a lethal cocktail. He closed his eyes, remained silent, and then died, Crites said.

But the memory of what he did to her cousin — and how life then changed — still haunts Crites. She knows Nance’s execution didn’t change how things had turned out.

“When he was gone, it gave us a relief,” she said. “Did it make things better? I don’t know. We think of him everyday.”

Crites, the mother of three sons and one daughter, said she only recently allowed her 16-year-old daughter to spend the night at a friend’s house and never permitted her daughter to sit on the porch of their home without someone sitting with her.

“You have to teach your family how evil people are,” she said.

Laura Santhanam is the Health Reporter and Coordinating Producer for Polling for the PBS NewsHour, where she has also worked as the Data Producer. Follow @LauraSanthanam

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The Case Against the Death Penalty

The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.

The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:

The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place . People of color are far more likely to be executed than white people, especially if thevictim is white

The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates.

Innocent people are too often sentenced to death. Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed.

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES

In 1972, the Supreme Court declared that under then-existing laws “the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” ( Furman v. Georgia , 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so “harsh, freakish, and arbitrary” as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that “the punishment of death does not invariably violate the Constitution.” The Court ruled that the new death penalty statutes contained “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death.” ( Gregg v. Georgia , 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder.

Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976 .

ACLU OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court’s 1976 ruling in Gregg v. Georgia , et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Capital punishment is cruel and unusual . It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death.

Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of equal protection . It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.

The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective . Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.

Capital punishment wastes limited resources . It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society’s control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.

Opposing the death penalty does not indicate a lack of sympathy for murder victims . On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to “guided discretion.” Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution.

A society that respects life does not deliberately kill human beings . An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment’s severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions .

The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year , this is still only about one percent of all homicides known to the police . Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137 , reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.

Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 ( Woodson v. North Carolina , 428 U.S. 280).

A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.

Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others.

Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs.

Capital punishment doesn’t solve our society’s crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

Capital punishment has been a useless weapon in the so-called “war on drugs.” The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers.

If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because “a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. “

In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions . Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states : California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it.

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions . Evidently, the threat of the death penalty “does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.” Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell , who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row.

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court’s ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989)

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction . But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial Bias in Death Sentencing

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman . Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that “the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions.” A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist “legacy of slavery.” Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black .

Our nation’s death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one’s conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987)

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black . More striking is the racial comparison of victims . Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim.

Between 1976 and 2005 , 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men.

So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.”

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that “the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims.” (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was “a constitutionally significant risk of racial bias….” (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was “best presented to the legislative bodies,” subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded : “Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision” and that “race of victim influence was found at all stages of the criminal justice system process…”

Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires.

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person . Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color . Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims. [1]

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse . Since 1900, only 51 women have been executed in the United States (15 of them black).

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet “approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.”) Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman , “One searches our chronicles in vain for the execution of any member of the affluent strata in this society”(408 US 238).

Failure of Safeguards

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. “Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination.”(Gross and Mauro, Death and Discrimination 1989)

Justice John Marshall Harlan, writing for the Court in Furman , noted “… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court “do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce.”

Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge’s instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. “Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law.”

Even if the jury’s sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor’s decision to prosecute for a capital or lesser crime, the court’s willingness to accept or reject a guilty plea, the jury’s decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant’s sanity, and the governor’s final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997 . The House judged the current system to be “a haphazard maze of unfair practices.”

In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual “constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime.” (International Commission of Jurists, Administration of the Death Penalty in the United States 1996)

In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed.

Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed.

In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man. [2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench. [3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it. [4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person. [5]

Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared:

• In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty.
• In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed.
• In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer.
• In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler’s explanation of the child’s cause of death and the physician who performed the autopsy admitted his work had not been thorough.
• In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs’ death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state’s witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution.
• In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury’s recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian’s behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian’s conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges.
• In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants’ innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges.
• In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, “One of you two is going to hang for this.” Looking at Brandley, the officer said, “Since you’re the nigger, you’re elected.” In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley’s aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991)

This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant’s previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.

CAPITAL PUNISHMENT IS BARBARIC

Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.

Two states, Idaho and Utah, still authorize the firing squad . The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows:

“At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans’ body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans’ left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans’ face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

“The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied.

“At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans’ body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes.” Afterwards, officials were embarrassed by what one observer called the “barbaric ritual.” The prison spokesman remarked, “This was supposed to be a very clean manner of administering death.”

The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a “cruel and unusual punishment.” Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens:

“When the fumes enveloped Don’s head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

“At this point Don’s body started convulsing violently…. His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don’s face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

“After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don’s left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

“Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

“Don Harding took ten minutes and thirty one seconds to die.” ( Gomez v. U.S. District Court , 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection , first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is “substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation.” ( Chaney v. Heckler , 718 F.2d 1174, 1983).

Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:

“The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death.”

Botched Lethal Injections

Nor does execution by lethal injection always proceed smoothly as planned. In 1985 “the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser.” In 1988, during the execution of Raymond Landry, “a tube attached to a needle inside the inmate’s right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses.”

Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break.

Lethal Injection Protocol Issues

Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart. [6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology. [7] Some states have replaced the three-drug cocktail with a single substance, [8] while others have replaced thiopental in the three-drug sequence with another anesthetic. [9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process. [10]

Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment, [11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution. [12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure. [13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection. [14]

Although similar suits are pending in other states, [15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used. [16]

Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions [17] and European Union restrictions on the exportation of drugs that may be used to kill. [18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school. [19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.” [20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed. [21]

Witnessing the Execution

Most people who have observed an execution are horrified and disgusted. “I was ashamed,” writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. “I was an intruder, the only member of the public who had trespassed on [the condemned man’s] private moment of anguish. In my face he could see the horror of his own death.”

Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber:

“If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The ‘last mile’ seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. ‘No more. I don’t want to do this anymore.'” 1996)

Recently, Allen Ault, former executioner for the State of Georgia, wrote , “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.”

For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. “I received more than seven hundred applications for the position, many of them offering cut-rate prices.” (Life and Death in Sing Sing 1928)

Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960)

Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: “The death penalty cannot be useful, because of the example of barbarity it gives men.” Beccaria’s words still ring true – even if the death penalty were a “useful” deterrent, it would still be an “example of barbarity.” No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”(Boston Globe, August 16, 1976)

Death Row Syndrome

Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years. [22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement [23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon. [24]

In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior. [25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community. [26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them.

Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association. [27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” [28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. [29]

Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil. [30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. [31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.” [32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court. [33]

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions.

Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, “For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – “making the punishment fit the crime.” If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.

If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Murder Victims Families Oppose the Death Penalty

Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, “As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder.” (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981)

Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written:

“I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn’t want the killer, in turn, to be killed. I remember lying in bed and praying, ‘Please, God. Please don’t take his life too.’ I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief.”(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989)

Across the nation, many who have survived the murder of a loved one have joined Murder Victims’ Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently.

Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James’ killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment.”

Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out “You can’t fight murder with murder . . .(l)ife in prison would have been fine. I know he can’t hurt my daddy anymore. I wish the state would take in mind that this isn’t what we want.”

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. “The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.”) A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., “Capital Losses” 1982)

The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost.

In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs “approximately 42 percent more than a case resulting in a non-death sentence.” In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. 59 Florida, with one of the nation’s most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence.” (David von Drehle, “Capital Punishment in Paralysis,” Miami Herald, July 10, 1988)

A 1993 study of the costs of North Carolina’s capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution.

In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, “My frustration is more about the fact that the death penalty does not serve any useful purpose and it’s very expensive.” Don Heller, a Republican and former prosecutor, wrote “I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility.” Heller emphasized that he is not “soft on crime,” but that “life without parole protects public safety better than a death sentence.” Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. “Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety.” [34]

From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. “Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent.” The only way to make the death penalty more “cost effective” than imprisonment is to weaken due process and curtail appellate review, which are the defendant’s (and society’s) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice : In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned .

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty “resource centers” charged with providing counsel on appeal in the federal courts. (Carol Castenada, “Death Penalty Centers Losing Support Funds,” USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory.

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty . A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41% . Only a minority of the American public would favor the death penalty if offered such alternatives.

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that “the facts clearly show that the death penalty is regarded in Europe as something of an anachronism….” 1962)

Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.

Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an “inhumane” punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it .

International Law

A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. [35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties. [36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. [37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights.

Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime. [38]

The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives. [39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor.

In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows .

Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment. [42]

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty.

The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012.

[1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008 , 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf .

[2] Liebman et. al, Los Tocayos Carlos , 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012).

[3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man , Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/ .

[4] See id.

[5] See id. ; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed , PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html .

[6] A Three-Drug Cocktail , WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.html ; see also Victoria Gill, The Search for a Humane Way to Kill , BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961 .

[7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122 ; John Schwartz, Death Penalty Drug Raises Legal Questions , N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all .

[8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol , Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/ ; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty , Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.html ; David Beasley, Georgia Delays Execution Amid Drug Protocol Change , Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717 ; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution , Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.html ; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate , WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/ ; Idaho Switches Execution Protocol to Single-Drug Lethal Injection , Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/ .

[9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns , NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concerns ; Steve Eder, Virginia Adds New Drug for Lethal Injections , WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/ .

[10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol , Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html .

[11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution , N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all .

[12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure , USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met–executionsART_ST_U.htm ; Court Gives Arizona Warning About Execution Protocol , Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.html . Notably, however, the panel did not halt Arizona’s scheduled executions. Id.

[13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution , Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723 .

[14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug , Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/ .

[15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol , KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/ .

[16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids , Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocol ; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails , Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/ .

[17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low , Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-low ; John Schwartz, Seeking Execution Drug, States Cut Legal Corners , N.Y. Times, Apr. 13, 2011,

http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all ; Kiefer, supra note 7.

[18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016 ; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections , BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578 .

[19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed , Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420 ; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing , Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htm l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug , USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc ; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler , California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888 ; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug , California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.html .

[20] Pelofsky, supra note 14.

[21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs , Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.html .

[22] See Elizabeth Rapaport , A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S. , Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf .

[23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0 .

[24] See Harrison and Tamony, supra note 25.

[25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row .

[26] See id.

[27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution , 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdf .

[28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari).

[29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases , 14 J.L. & Pol’y 735, 738-39 (2006).

[30] Soering v. UK , App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf .

[31] See David Wallace-Wells, What is Death Row Syndrome? , Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.html ; Smith supra note 30.

[32] Smith supra note 30. (quoting Soering , 11 Eur. H. R. Rep. at 475-76).

[33] Id. at 239.

[34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year , L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620 .

[35] Figures on the Death Penalty , Amnesty International, http://www.amnesty.org/en/death-penalty/numbers .

[36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [ hereinafter Second Optional Protocol].

[37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions , World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html ; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty , World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.html ; Second Optional Protocol, supra note 21.

[38] Desert, Second Optional Protocol: Frequently Asked Questions , supra note 22.

[39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf .

[40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf .

[41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventions .

[42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf .

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Capital punishment.

"Capital Punishment." Opposing Viewpoints Online Collection , Gale, 2023.

Capital punishment , also referred to as the  death penalty , has long been a feature of human society and has been used in the United States since the colonial era. Crimes punishable by death are called  capital offenses . Under US constitutional law, states have the right to apply their own criminal statutes including capital punishment. However, the death penalty remains a controversial political and legal issue in the United States. Supporters of capital punishment argue that it deters crime and provides ultimate justice for crime victims, particularly murder victims. Opponents counter that it is an immoral and costly practice that is particularly vulnerable to racial bias. It also carries the risk of wrongful execution. As of 2023, the death penalty had been abolished in twenty-three US states and the District of Columbia. In addition, governors in Arizona, California, Ohio, Oregon, and Pennsylvania had placed moratoriums on the death penalty that remained in effect.

PROS AND CONS OF ABOLISHING THE DEATH PENALTY

• The death penalty violates the Eighth Amendment's protection against "cruel and unusual punishment" by the state.
• With little evidence that capital punishment deters crime, it is a costly and ineffective use of public resources.
• Abolishing the death penalty is the only way to prevent bias in its application and ensure that no person is executed by the government erroneously or unconstitutionally.
• The option to seek the death penalty is constitutional because the Fifth Amendment authorizes its application as long as "due process of law" has been followed.
• The death penalty provides immeasurable public benefit by discouraging people from committing capital offenses.
• Capital punishment enables the state to assert its authority over the people and serve in its role as the administrator of justice.

In addition to state laws, the federal government identifies about sixty crimes to which the death penalty could be applied. These offenses involve murder, treason, or committing another crime that results in death, such as kidnapping or aircraft piracy. The US Department of Justice (DOJ) authorizes federal death penalty cases, which are prosecuted in federal court. In 2020, following seventeen years without carrying out the penalty, the federal government executed ten people. In January 2021 the federal government executed Lisa Marie Montgomery, the first woman to receive such a punishment from the federal government in sixty-seven years. Despite this surge in federal executions in 2020, state executions reached their lowest number that year since 1991.

In states that still enforce capital punishment, lethal injection is the primary method of carrying out executions. Though their use is rare, secondary execution methods permitted by individual state laws include electrocution, gas inhalation, hanging, and firing squad. As of 2023, only three people in the United States have been executed by hanging since 1965, and only four people have faced a firing squad since 1960. Tennessee used electrocution in 2020. For federal offenses, the government uses the methods of execution authorized by the state in which the court imposes the punishment. In cases handled in states that have abolished capital punishment, the federal judge can designate a death-penalty state to carry out the execution.

Several nonprofit organizations work to end the use of capital punishment. The National Coalition to Abolish the Death Penalty, the nation's oldest anti–death penalty nonprofit organization, was founded in 1976 and focuses on ending the practice through mass organization, providing legal assistance, and educating the public. The Innocence Project, founded in 1992, focuses on providing legal services and DNA testing with the purpose of winning exoneration for wrongfully convicted prisoners. Exoneration occurs when a person's conviction is overturned. Between 1973 and 2023, at least 195 inmates on death row in the United States were exonerated.

DEVELOPMENT OF US DEATH PENALTY LAWS

The Fifth Amendment of the US Constitution outlines conditions for trying individuals accused of capital crimes and states that no person "shall be deprived of life … without due process of law." The government is granted the authority to execute a person if certain conditions—such as arrest, indictment, and trial—have been met. The Eighth Amendment, however, prohibits the government from enforcing "cruel and unusual punishment," which several lawsuits have used successfully to challenge certain applications of capital punishment.

Through the Crimes Act of 1790, also referred to as the Federal Criminal Code of 1790, lawmakers of the newly independent United States granted federal judges the authority to impose the death sentence. By the 1800s, federal law not only permitted capital punishment but required it in cases involving certain crimes. This created a problem for juries that found a defendant guilty but did not believe the offense warranted a sentence of death. With no legal ability to impose a punishment other than execution, some juries chose to hand down verdicts of not guilty, a trial outcome known as  jury nullification .

Due in part to rising jury nullifications, which effectively allowed guilty criminals to be set free, state legislatures began to pass laws in 1838 that rejected mandatory application of the death penalty in favor of jury discretion in sentencing. The abolitionist movement to end capital punishment also influenced state legislatures. By the early 1900s, most states had adopted laws that allowed juries to apply either the death penalty or a sentence of life in prison.

Executions in the United States peaked during the 1930s at an average rate of 167 per year. Courts handed down death sentences fairly frequently until the 1960s when the practice began to face growing moral, legal, and political opposition. Critics cast doubt on its value as a crime deterrent and argued that the courts applied it inconsistently and unequally. Among other factors, scholars determined that the races of both the victim and the defendant often influenced sentencing. Despite comprising less than 15 percent of the US population, African Americans comprised more than half of the nearly four thousand people executed from 1930 to 1967. Facing increasing pressure to rule on the constitutionality of capital punishment law, an unofficial nationwide moratorium on executions began in 1968.

CONSTITUTIONAL CHALLENGES

The Supreme Court ruled in  Furman v. Georgia  (1972) that the death penalty, as it was implemented, violated the Constitution. The court overturned the death sentence of William Furman, an African American man whose murder trial had lasted less than one day. The court found Furman's death sentence to be "cruel and unusual punishment." The ruling determined that the unequal and arbitrary application of the death penalty to African American defendants violated the equal protection clause of the Fourteenth Amendment. The decision required states to develop consistent legal standards for capital punishment to ensure that sentences matched the severity of offenses and did not cause undue pain and suffering. From 1972 to 1976, thirty-five US states revised their death penalty laws.

On July 2, 1976, the Supreme Court handed down five decisions in cases that originated in Florida, Georgia, Louisiana, North Carolina, and Texas, collectively referred to as the July 2 cases, or by the name of the lead case,  Gregg v. Georgia . All cases involved ongoing state-level efforts to reform capital punishment laws. The court ruled that mandatory capital punishment laws were too rigid. However, the court also determined that the death penalty does not violate the Constitution, capital punishment serves as a practical deterrent, and retribution provides a justifiable basis for execution.

The court's rulings also indicated that inconsistent and racially biased death sentences could be prevented by holding two hearings: one to establish guilt and one to determine sentencing if found guilty. Most states authorized a system of allowing the jury to decide the guilty party's punishment, though some allowed judges to make the decision or retain the right to overrule the jury. These decisions allowed the reinstatement of state death penalty laws. The federal government lifted its capital punishment moratorium in 1988 but did not carry out another execution until 2001.

RESURGENCE IN THE LATE TWENTIETH CENTURY

After the unofficial moratorium on capital punishment ended with the execution of Gary Gilmore in Utah in 1977, the execution rate remained low for an extended period. During the late 1970s, the Supreme Court handed down decisions that expanded defendants' rights in capital offense trials and ruled that capital punishment could not be imposed for the rape of an adult, limiting the death penalty to offenses of murder, treason, and the rape of a child. In the 1980s, the court ruled that the death penalty could not be applied to offenders under the age of sixteen or those deemed mentally incompetent. During the 1980s, more than half of all federal appeals in capital punishment cases resulted in death sentences being overturned.

In  McCleskey v. Kemp  (1987), the Supreme Court again confronted the issue of race and capital punishment. Warren McCleskey, a Black resident of Georgia, had been convicted of killing a white police officer in 1978 and sentenced to death. McCleskey's attorneys argued that his Eighth and Fourteenth Amendment rights were violated because his race made it statistically more likely that he would receive the death penalty. McCleskey's attorney cited a 1983 study, commonly referred to as the Baldus study, that determined African Americans in Georgia were 4.3 times more likely to receive death sentences for killing a white person than they were for killing another African American. Upon losing his Supreme Court appeal, McCleskey was executed in 1991.

In the years since the McCleskey ruling, opponents of capital punishment have continued to voice concerns about the role of racial bias in death penalty sentencing. The court's ruling is believed to have made proving racial discrimination more difficult. According to the National Association for the Advancement of Colored People (NAACP), incarceration rates of racial minorities skyrocketed in the decade following the McCleskey decision. As of October 2023, Black defendants accounted for 34.1 percent of all people executed in the United States since 1976 and over 40 percent of the country's death row population despite making up just 13.6 percent of the general population.

During the 1990s, the Supreme Court issued several decisions that upheld the constitutionality of capital punishment and limited defendants' opportunities to have their cases reviewed. The number of executions performed annually began a steady rise during this decade. A total of sixteen executions were carried out in the United States in 1989. In 1999 state governments carried out ninety-eight executions, the highest number since the 1976 reinstatement of the death penalty.

TWENTY-FIRST-CENTURY DEVELOPMENTS

The 2001 execution of Timothy McVeigh, convicted for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, marked the first federal execution carried out since 1963, with drug trafficker Juan Raul Garza executed eight days later. After the execution of Louis Jones Jr. in 2003, no federal executions were scheduled until US Attorney General William Barr announced a return to the practice in 2019. One year after the announcement federal executions resumed, and ten prisoners were executed by the federal government in the last six months of 2020. An additional four federal prisoners were executed in January 2021, during the last weeks of Trump's presidency. His successor, Joe Biden, has pledged to end the federal death penalty and issued a federal moratorium on executions. As of late 2023, federal courts have not issued any death sentences during the Biden administration.

Opponents of the death penalty have also focused their arguments on the mental capacity of those found guilty of capital offenses. The Supreme Court ruled in  Atkins v. Virginia  (2002) that executing people with intellectual disabilities violated the Eighth Amendment but left the definition of intellectual disabilities up to individual states. In  Hall v. Florida  (2014), the Supreme Court found Florida's system of determining intellectual disability to be unconstitutional and handed down a similar ruling in  Moore v. Texas  (2017). In several cases in 2020 the Florida Supreme Court reversed existing protections afforded to inmates sentenced to death and overturned existing evidential and jury agreement standards for imposing the death penalty.

Between 2000 and 2020, with few exceptions, the number of state executions performed annually dropped each year, with the exceptions of 2017 and 2018. While eighty-five state executions were carried out in 2000, there were twenty-five in 2018 and twenty-two in 2019. Seven state executions took place in 2020, the lowest annual number of the twenty-first century as of late 2023. Though no federal executions had taken place under the Biden administration as of 2023, forty-one state executions took place during that period, with eighteen taking place in 2022 and at least twenty in 2023. Death penalty abolitionists have expressed frustration at the Biden administration's lack of progress on permanently ending capital punishment and the DOJ's upholding of previous federal death sentences.

CRITICAL THINKING QUESTIONS

• What factors do you think have historically had the greatest influence on capital punishment reform in the United States?
• Under what conditions, if any, do you think a court should sentence a person to death? Explain your answer.
• In your opinion, should pharmaceutical companies have the right to refuse to sell drugs for executions? Why or why not?

LETHAL INJECTION CONTROVERSIES

A nationwide shortage of sodium thiopental, the barbiturate anesthetic used in lethal injections, emerged in 2009 after the only pharmaceutical plant in the United States approved by the Food and Drug Administration (FDA) to manufacture the drug announced it was stopping production. The shortage resulted in the postponement of several scheduled executions. States could only acquire the drug by importing it from abroad, sometimes improperly. European drug manufacturers objected to capital punishment procedures, and the European Commission banned the export of drugs used in lethal injection procedures in 2011. Some states attempted to circumvent regulations, resulting in the federal Drug Enforcement Administration (DEA) seizing drug supplies from prisons in Alabama, Georgia, Kentucky, South Carolina, and Tennessee.

Other states sought to carry out their scheduled executions using experimental combinations of drugs. Officials in Oklahoma were found to have made significant errors in an execution in 2014 after authorizing the use of untested drugs supplied by undisclosed sources. A grand jury determined in 2016 that state officials had committed a long list of oversights and avoidable mistakes in carrying out executions. In 2017 officials in Arkansas came under criticism for expediting the schedule of eight executions by lethal injection before the state's supply of available drugs reached its expiration date. Four of the eight inmates were ultimately executed, while four received stays of execution.

Concerns over botched executions using untested lethal injection methods reached the US Supreme Court, which handed down its decision in  Bucklew v. Precythe  in April 2019. The split five-to-four ruling held that challenges to a state's method of execution due to claims of excessive pain must demonstrate that alternative methods exist that would cause less pain than the state-determined one. The majority decision reasoned that the constitutional prohibition against cruel and unusual punishment does not equate to a guarantee of a painless execution. The dissenting opinion argued that the use of lethal injection in this case met the standards for an Eighth Amendment challenge previously established by the court itself.

During the COVID-19 pandemic, lawyers for federal death-row inmates Dustin Higgs and Corey Johnson argued that their clients, both of whom tested positive for COVID-19, should not be subject to lethal injection. The attorneys suggested that the combination of COVID-19 infection with the flooding of the lungs caused by the execution drugs would cause suffering that amounted to "cruel and unusual punishment." Like earlier appeals in defense of the prisoners' lives, this argument proved ineffective. Both men were executed in Virginia in January 2021.

Two months after these executions, on March 24, 2021, Virginia governor Ralph Northam signed a bill that abolished the death penalty in the state. When signing the bill, Northam referenced the disproportionate use of the death penalty against Black men in the state and the 170 prisoners sentenced to death row who had been exonerated after capital punishment was reinstated in the United States. Virginia became the first state in the South to abolish the death penalty, leading some to believe others could follow.

In 2015, following several botched executions, the governments of Alabama, Mississippi, and Oklahoma began to approve nitrogen hypoxia, in which the inmate dies by asphyxiation, as an execution method. In August 2023 Alabama became the first state to announce that it would use the method as it sought to schedule the execution of Kenneth Smith, whose first execution the state had botched the previous year.

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This article examines the imposition of death sentences by geographic locale in the United States. While death sentences have fallen across the country since the 1970s, the majority of executions that have taken place are attributable to a relatively small number of counties. The author considers reasons for the decline in capital punishment, as well as how geographical variance impacts the debate over execution as a fair and just punishment.

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• Restoring Freedom

Innocence and the Death Penalty

Melissa Lucio poses for a portrait behind glass at the Mountain View Unit in Gatesville, Texas on March 21, 2022. (Image: Ilana Panich-Linsman for the Innocence Project)

In the last 30 years, exoneration cases have exposed the very real shortcomings of the American legal system. 

The Innocence Project has represented innocent people who were wrongly convicted of murder and condemned to death in cases that were compromised by police and prosecutorial misconduct, ineffective assistance of counsel, eyewitness misidentification, unreliable forensic evidence, racial bias, and more. In some instances, our clients have come within days of execution. These cases powerfully establish that — notwithstanding legislative and constitutional guarantees of increased scrutiny for and oversight of such cases — the capital punishment system is deeply flawed and poses an unconscionable threat to innocent people. For these reasons, the death penalty must be abolished. 

Since 1973, at least 190 people have been exonerated from death row in the U.S., according to the Death Penalty Information Center (DPIC). A 2014 study estimated that at least 4% of those sentenced to death are innocent. These numbers don’t demonstrate the full scope of the impact that the death penalty has on the problem of wrongful conviction as the threat of the death penalty causes innocent people to plead guilty and induces false testimony from witnesses.

The vast majority of people exonerated from death row are Black or Latinx, and more than half of death row exonerees are Black. Studies consistently demonstrate that the race of the accused and/or race of the victim plays an arbitrary yet determinative role in the administration of the death penalty. This is significant in the context of wrongful conviction because official misconduct has been documented in three-fourths of the cases of Black exonerees and two-thirds of the cases of Latinx exonerees, while official misconduct is present in less than 60% of the cases of white exonerees.

Although the Constitution promises equal justice for all, race continues to affect every stage of a capital case from arrest and investigation to eventual execution. Most homicides are intra-racial (white people are more likely to kill white people, Black people are more likely to kill Black people, etc.), but the use of the death penalty for inter-racial crimes has always been lopsided. Nearly 300 Black people accused of murdering white people have been executed since 1976. That’s almost 17 times more than the number of white people executed for murdering Black people, the DPIC notes.

The Innocence Project currently represents people on death row with strong claims of innocence and supports coalitions working to ban the use of the death penalty. Virginia, Colorado, and New Hampshire became the most recent states to outlaw capital punishment, but 27 states, the federal government, and the U.S. military still allow the use of this arbitrary and brutal punishment.

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March 19, 2024

Evidence Does Not Support the Use of the Death Penalty

Capital punishment must come to an end. It does not deter crime, is not humane and has no moral or medical basis

By The Editors

A death penalty vigil, held in 2021 outside an Indiana penitentiary.

Bryan Woolston/Reuters/Redux

It is long past time to abolish the death penalty in the U.S.

Capital punishment was halted in the U.S. in 1972 but reinstated in 1976, and since then, nearly 1,600 people have been executed. To whose gain? Study after study shows that the death penalty does not deter crime, puts innocent people to death , is racially biased , and is cruel and inhumane. It is state-sanctioned homicide, wholly ineffective, often botched, and a much more expensive punishment than life imprisonment. There is no ethical, scientifically supported, medically acceptable or morally justifiable way to carry it out.

The recent execution of Kenneth Eugene Smith demonstrates this barbarity. After a failed attempt at lethal injection by prison officials seemingly inexperienced in the placement of an IV, the state of Alabama killed Smith in January using nitrogen gas . The Alabama attorney general claimed that this method of execution was fast and humane , despite no supporting evidence. Eyewitnesses recounted that Smith thrashed during the nitrogen administration and took more than 20 minutes to die.

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Opposition to the death penalty is growing among the American public , and the Biden administration must follow through on its promise to end this horror. The Department of Justice must heed its own admission that the death penalty doesn’t stop crime, and our legislators must continue to take up the issue on the congressional floor. The few states that still condemn people to death must follow the lead of states that have considered the evidence and rejected capital punishment.

Programs such as the Innocence Project have shown, over and over, that innocent people have been sentenced to death. Since 1973 nearly 200 people on death row have been exonerated, based on appeals, the reopening of cases, and the entrance of new and sometimes previously suppressed evidence. People have recanted testimony, and supposedly airtight cases have been poked full of evidentiary holes.

Through the death penalty, the criminal justice system has killed at least 20 people now believed to have been innocent and uncounted others whose cases have not been reexamined . Too many of these victims have been Black or Hispanic. This is not justice. These are state-sanctioned hate crimes.

Using rigorous statistical and experimental control methods, both economics and criminal justice studies have consistently found that there is no evidence for deterrence of violent crimes in states that allow capital punishment. One such study, a 2009 paper by criminology researchers at the University of Dallas, outlines experimental and statistical flaws in econometrics-based death penalty studies that claim to find a correlated reduction in violent crime. The death penalty does not stop people from killing. Executions don’t make us safer.

The methods used to kill prisoners are inhumane. Electrocution fails , causing significant pain and suffering. Joel Zivot, an anesthesiologist who criticizes the use of medicines in carrying out the death penalty, has found (at the request of lawyers of death row inmates) that the lungs of prisoners who were killed by lethal injection were often heavy with fluid and froth that suggested they were struggling to breathe and felt like they were drowning. Nitrogen gas is used in some veterinary euthanasia, but based in part on the behavior of rats in its presence, it is “unacceptable” for mammals , according to the American Veterinary Medical Association. This means that Smith, as his lawyers claimed in efforts to stop his execution, became a human subject in an immoral experiment.

Courts have often decided, against the abundant evidence, that these killings are constitutional and do not fall under the “cruel and unusual punishment” clause of the 8th Amendment or, in Smith’s appeal , both the 8th Amendment and the due process protection clause of the 14th amendment.

A small number of prosecutors and judges in a few states, mostly in the South, are responsible for most of the death sentences being handed down in the U.S. today. It’s a power they should not be able to wield. Smith was sentenced to life in prison by a jury before the judge in his case overruled the jury and gave him the death sentence.

A furious urge for vengeance against those who have done wrong—or those we think have done wrong—is the biggest motivation for the death penalty. But this desire for violent retribution is the very impulse that our criminal justice system is made to check, not abet. Elected officials need to reform this aspect of our justice system at both the state and federal levels. Capital punishment does not stop crime and mocks both justice and humanity. The death penalty in the U.S. must come to an end.

This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American .

Deterrence and the Death Penalty (2012)

Chapter: 4 panel studies.

Panel Studies

I n this chapter, we discuss the recent research that used panel data and methods to examine whether the death penalty has a deterrent effect on homicide and if so, the size of this effect. As noted in Chapter 1 , “panel data” and “panel methods” refer to data from many geographic locations followed over time—usually annual state-level data—and a particular set of multiple regression methods. The annual state data include all states, and the time periods covered are typically from the late 1970s (post- Gregg ) through the late 1990s or into the 2000s. Over this time period, there have been variations in the frequency of death penalty sentences, executions, and the legal availability of the death penalty. With these types of data, the strategy for identifying an effect of the death penalty on homicides has been, roughly speaking, to compare the variation over time in the average homicide rates among states that changed their death penalty sanctions versus those that did not.

This chapter assesses the extent to which the research using panel data is informative on the question of whether and how much the death penalty has a deterrent effect on homicide. For this assessment, we compare the data and methods used in this literature with those that would be available from an ideal randomized experiment (see Chapter 3 ). The purpose of this exercise is to clarify the challenges that face researchers using panel methods to study the death penalty and deterrence. We then assess the extent to which this research overcomes these challenges.

This literature is striking in the similarity of the data and methods used across studies and the diversity of the results. Given this diversity of results

across and in some cases within studies, a central task for this committee is to assess the validity of the models used in the studies.

We begin the chapter by describing the key features of the studies we reviewed and giving a brief overview of their data and methods. We then discuss the primary challenges to researchers using panel data and methods to inform the question of whether the death penalty affects the homicide rate: the difficulty in measuring changes over time in the relevant sanction policies for homicide and the difficulties in establishing that any changes in homicides that are concurrent with changes in the death penalty are caused by those changes in the death penalty and not vice versa or by other factors that affect both—such as other sanctions for murder. We conclude with our assessment of the informativeness of the panel research.

PANEL STUDIES REVIEWED

Methods Used: Overview

We begin our review of the panel research by briefly describing the regression models used in the studies. Our intention with this description is to establish the extent to which the methods are largely consistent across studies, as context for understanding the particular dimensions on which the studies differ.

The panel research makes use of multiple regression models involving “fixed effects” that take the following form:

where y it is the number of homicides per 100,000 residents in state i in year t , f(Z it ) is an expected cost function of committing a capital homicide that depends on the vector of death penalty or other sanction variables Z it with corresponding parameter γ measuring the effect of the death penalty on the homicide rate. Importantly, this effect is assumed to be homogeneous across states i and years t .

A primary benefit of panel data is that one observes homicide and execution rates in the 50 states over many years. This allows researchers to effectively account for unobserved features of the state or of the time period that might be associated with both the application of the death penalty and the homicide rate. Some states, for example, might have unobserved social norms that lead to higher (or lower) execution rates and lower (or higher) rates or homicide: Texas is arguably different than Massachusetts in this regard. The panel data model in Equation (4-1) accounts for some of these differences with a state-specific intercept parameter, α i , referred to as a state fixed effect, that allows the mean homicide rate to vary additively

by state, and a time-specific intercept, β it , referred to as a time fixed effect , that allows the mean homicide rate to vary additively over time. These fixed effects account for unobserved factors that are state specific but fixed across time, such as the social norms that make Texas different than Massachusetts, and factors that are year specific but apply to all states, such as macroeconomic events that may affect homicide rates across the country. In addition to these fixed effects, some of the researchers also include state-specific linear time trends that allow each state’s homicide rate trend to vary (linearly) from the year-to-year national fluctuations.

The literature also includes a set of covariates, X it , that are intended to control for additional factors that may vary with both state and year. These sets of covariates are largely similar across studies and include economic indicators, such as the unemployment rate and real per capita income; demographic variables, such as the proportion of the state’s population in each of several age groups; the proportion of the state’s population that is black; and the proportion of the state’s population that reside in urban areas. The covariates also include health and policy variables, such as the infant mortality rate, the legal drinking age, and the governor’s party affiliation; and crime, policing, or sanctioning variables, such as the number of prisoners per violent crime.

Finally, ε it is a random variable that accounts for the unobserved factors determining the homicide rate. 1 Researchers make two general assumptions about the relationship between the death penalty variables, Z it , and ε it . The most common assumption is that the death penalty, as measured by the variable Z it , is statistically independent of the unobserved factors that determine homicide, as it would be in an ideal randomized experiment. An alternative route is to assume that there is some covariate, termed an instrumental variable , that is independent of ε it but not of the death penalty.

The Studies, Their Characteristics, and the Effects Found

Table 4-1 lists the studies reviewed in this chapter and a few of their key characteristics, and briefly notes each one’s results. 2 This list does not

__________________

1 In estimating these models, the data are typically weighted by state population.

2 One characteristic that is not highlighted in Table 4-1 is the choice of outcome variable, yit. All of the studies listed in the table and reviewed in this chapter focused on the overall homicide rate (or the log-rate). However, there are a few studies in the panel data literature that examined different outcome measures. Most notably, Fagan, Zimring, and Geller (2006) focused on all capital murders, and Frakes and Harding (2009) examined child murders which, depending on the state and year, may or may not be death penalty eligible. Otherwise, the key characteristics of these two studies are similar to the ones reviewed in this chapter. Interestingly, although both studies focused on the impact of the death penalty on capital eligible murders, Fagan, Zimring, and Geller found no evidence that the death penalty deters murder,

TABLE 4-1 Panel Studies Reviewed

a Sign of the estimated coefficients: –, the estimated effect of capital sanctions on homicide is negative, indicating a deterrent effect; +, the estimated effect of capital sanctions on homicide is positive, indicating a brutalization effect.

b Statistical significance levels: NS, no statistical significance at p = 0.05; *, p < 0.05; **, p < 0.01.

c Dezhbakhsh, Rubin, and Shepherd (2003) estimate 55 different panel data regression models. In 49 of the models, the estimated effect of capital sanctions on homicide is negative and statistically significant; in 4, the estimates are negative and insignificant; and in 2, the estimates are positive and insignificant.

include every study of deterrence using panel data, but instead provides information on a set of influential studies that use the different approaches found in the research and that draw a wide range of different conclusions. Studies designed to illustrate the fragility of the results reports in the literature, namely, Donohue and Wolfers (2005, 2009) and Cohen-Cole et al. (2009), apply the same basic models and thus are included in our review.

The first study characteristic is how researchers specify the expected cost function of committing a capital homicide f(Z it ). At the most basic level, studies seek to determine the effect of changes in the legal status of the death penalty, changes in the intensity with which the death penalty is applied, or both. Most studies evaluated the intensity of use, but some also focused on the legal status of the death penalty. The specification of the death penalty variables in the panel models varies widely across the research and has been the focus of much debate. The different specifications assume that quite different aspects of the sanction regime are salient for would-be murderers. The research has demonstrated that different death penalty sanction variables, and different specifications of these variables, lead to very different deterrence estimates—negative and positive, large and small, both statistically significant and not statistically significant.

The second characteristic of interest is whether the death penalty measure is assumed to be randomly applied after controlling for the observed covariates and the fixed effects. The choice of whether or not to use instrumental variables, and the particular variables selected, has led to contentious differences in model assumptions invoked across the literature. In most of the studies, the researchers have assumed that the death penalty is unrelated to the unobserved factors associated with the homicide rate. That is, the unobserved factors, ε it , are not associated with the death penalty sanctions. Studies using this independence assumption have drawn conflicting conclusions (see Table 4-1 ) with some reporting statistically significant evidence in favor of a deterrence effect, many others finding that capital punishment has a negative but statistically insignificant association with homicide, and a few others reporting evidence in favor of a brutalization effect, that capital punishment increases homicide.

Dezhbakhsh, Rubin, and Shepherd (2003) and Zimmerman (2004) argue that death penalty sanctions are likely to be correlated with unobserved determinants of homicide, and instead propose using instrumental variables to provide variation in the risk perceptions of potential murderers that is separable from the effects of all of the unobserved factors. The results of

and Frakes and Harding reported substantial deterrent effects. Our review does not consider the choice of the outcome variable: although this choice may have important implications for inference, these issues are secondary relative to the more fundamental issues covered in this chapter.

studies that do not use such instrumental variables vary from those that do, and the results of studies that use different instrumental variables vary from each other.

The fact that the estimated effects of the death penalty on homicide are sensitive to the different data and modeling assumptions used is not surprising. Deterrence estimates from the panel models depend on state changes over time in the legal status of the death penalty or the intensity with which the death penalty is applied. Since the moratorium was lifted, such changes have been few and far between (see Chapter 2 ). Because of the way in which the death penalty has been implemented in the United States in the last 30 years, no executions occur in most states in most years (86 percent of state-year observations), and when there are any, the number is almost always very low. In addition, the executions that do occur are concentrated in particular states, with Texas carrying out executions an order of magnitude more often than any other state. There also tends to be little variability for states over time in their numbers of or rates of executions and whether they legally allow executions. Only 11 states experienced one or more changes in legal status of the death penalty after the national moratorium was lifted. Overall, in recent decades in the United States the death penalty has been a rare practice that is concentrated in a few places.

Not only is there low variability in the application of the death penalty, there are only a small number of state-year observations that exhibit large variations in homicide rates over time. Figure 4-1 illustrates a partial regression plot with a death penalty sanction measure on the horizontal axis and the homicide rate on the vertical axis (adjusted for state and year fixed effects and typical covariates). This plot reflects the data, covariates, and specification used by Kovandzic, Vieraitis, and Boots (2009). 3 In displaying these regression results, the committee is not endorsing this or any other particular study. 4 Instead, our purpose is to illustrate how outlier or influential observations may affect regression results. Since the effect of the death penalty is estimated as the slope of the ordinary least squares regression line between the bulk of the data near zero and the location of the small set of influential values, the estimates in the research studies can vary widely (Berk, 2005). For example, if the particular state-year observations that are influential depend on the death penalty intensity measure used, then the slope of the regression line will vary with this measure. If one believes in the validity of the underlying model applied in Figure 4-1 , then the outlier

3 The execution measure is computed using the number of executions the year before the period year divided by the number of death sentences 7 years prior to the period year. For full model specification, see Figure 4-1 notes in the figure caption.

4 In particular, we note that alternative but similar specifications result in a positive sloping, rather than a negative sloping line.

FIGURE 4-1 Illustration of influential data points.

NOTES: The plot reflects the data, covariates, and specification used by Kovandzic, Vieraitis, and Boots (2009), Table 3, Model 6 with the addition of two common sanction variables: death sentences divided by homicide arrests 2 years prior and homicide arrests divided by homicides. These additional variables required a measure of arrests for homicide, which was obtained from J. Wolfers’ web page and was not available for years after 1998.

The horizontal axis represents the adjusted execution measure (residuals of execution measure regressed on all the rest of the regressors in the model). The execution measure is defined as the number of executions the prior year per number of death sentences 7 years prior, with missing values set to zero.

The vertical axis represents the adjusted homicide rate (residuals of the homicide rate regressed on all the regressors except the execution rate variable). The homicide rate is homicides per 100,000 residents. The regression was run on data for 1984-1998, weighted by state population share, and standard errors were clustered by state.

The coefficient of the ordinary least squares line between these two sets of adjusted variables—and hence the coefficient on the execution measure in the multiple linear regression of homicide rates on the execution measure and all covariates—is –0.183 (p = 0.173).

SOURCES: Data from T.V. Kovandzic (personal communication) and J. Wolfers. Wolfers’ data are available at http://bpp.wharton.upenn.edu/jwolfers/DeathPenalty.shtml.

observations are informative. But if there is uncertainty about the validity of the model, the outliers can make the estimates highly sensitive to the underlying assumptions.

As noted in Chapter 2 , the infrequency of executions does not mean that there is insufficient variation in the data to detect the effect of capital punishment. In fact, as shown in Table 4-1 (above), there is no shortage of statistically significant results reported in the literature. Rather, the problem is that inferences on the impact of the death penalty rest heavily on unsupported assumptions.

SPECIFYING THE EXPECTED COST OF COMMITTING A CAPITAL HOMICIDE: f(Z it )

In light of the variability in the estimated effects of the death penalty on homicide, a central question is whether the correct specification is being used and can be identified. We evaluate this question below by first focusing on measures of the perceived cost of murder and then taking up more generic issues associated with the panel data models in equation (4-1) .

A vital component to evaluating the effect of the death penalty on homicide is to properly specify the expected cost function, f(Zit) , in Equation (4-1) . Yet, researchers have failed to measure the relevant sanction regime and have relied on seemingly ad hoc measures of the relevant sanction probabilities.

What is the relevant treatment? Researchers have struggled to clearly specify and measure the incremental cost of a particular sanction policy. As noted in Chapter 3 , there is little information on the sanction regime, and thus the counterfactual policy of interest. In particular, the research aims to determine the effect of an increase (or decrease) in the risk of receiving the death penalty or being executed relative not to no sanction, but rather relative to the other common sanctions for murder—lengthy prison sentences (with or without the possibility of parole). Moreover, these other aspects of the sanction regime may be changing over time, and any changes in the risks of the death penalty have to be evaluated relative to the varying but always higher risks associated with prison sentences. Two mechanisms that could plausibly create associations between changes in death penalty and prison sentence sanctions for homicide are the plea bargaining process, through which the threat of the death penalty may change the likelihood of sentences of different lengths, including life without parole, and the punitiveness of a state’s culture, which influences the severity of the capital and noncapital aspects of the sanction regime.

None of the studies we reviewed made any use of information on other sanction risks for murder or the ways in which they may be changing over time. For this reason, it is not possible to tell if any “treatment” effects

found in these models are due to death penalty sanction changes or to changes in other more frequently used sanctions that are part of a state’s sanction regime for homicide. If changes in the death penalty are part of a larger “law and order” program, then concurrent changes in other much more heavily used sanctions could be at the root of any associated change in homicide rates.

A related problem in specifying a cost function is the ad hoc and inconsistent measures of subjective sanction probabilities. How do potential offenders measure the expected cost of committing a capital offense? The difficulty in answering this question stems from two interrelated problems: first, there is little information on how offenders perceive the relevant probabilities of arrest, conviction, and execution; and second, in practice, these probabilities may be difficult to measure.

In the studies we reviewed, one or both of just two features of the death penalty are assumed to be salient for deterring homicide: the legal status of the death penalty (in each state and year) and what are described as measures of the intensity with which the death penalty is applied (in each state and year). A variety of different and complex temporal structures are used to measure the probabilities of arrest, death sentence, and execution.

Consider, for example, the specifications used for variables described as the risk of execution given a death sentence:

•   the number of executions in the prior year (prior to the current year’s homicide rate);

•   the number of executions in the prior year divided by the number of death sentences in the same prior year (or a variant, using a 12-month moving average of these counts for both the numerator and denominator);

•   the number of executions in the current or prior year divided by the number of death sentences in an earlier prior year (3, 4, 5, 6, and 7 years prior have all been implemented and similar specifications using executions from the first three quarters of the current year and last quarter of prior year divided by death sentences 6 years prior);

•   the number of executions in the prior year divided by the number of death row inmates in the prior year;

•   the number of executions in the current year divided by the number of homicides in the prior year;

•   the number of executions in the prior year divided by the number of prisoners in the prior year (or 2 or 3 years prior); and

•   the number of executions in the prior year divided by the population of the state in the prior year.

There is no empirical basis for choosing among these specifications, and there has been heated debate among researchers about them, particularly on the number of years that should be lagged for the numerator and, even more so, for the denominator in order to best correspond to the relevant risk of execution given a death sentence in each state and year.

This debate, however, is not based on clear and principled arguments as to why the probability timing that is used corresponds to the objective probability of execution, or, even more importantly, to criminal perceptions of that probability. Instead, researchers have constructed ad hoc measures of criminal perceptions. Consequently, the results have proven to be highly sensitive to the specific measures used. Donohue and Wolfers (2005) find, for example, that when reanalyzing the results in Mocan and Gittings (2003), using a 7-year lag implies that the death penalty deters homicide (4.4 lives saved per execution) but using a 1-year lag implies that the death penalty increases the number of homicides (1.2 lives lost per execution). Donohue and Wolfers (2005) question whether would-be murderers are aware of the number of death sentences handed down 7 years prior. Responding to these concerns, Mocan and Gittings (2010) argue that because executions do not take place the same year as a sentence is imposed, models with a 1-year lag are meaningless.

Whether any of these measures accurately reflect the relevant risk probabilities is uncertain. The basic problem is that little is known about how those who may commit murder perceive the sanctions for this crime. If the death penalty is going to have an effect on the behavior of this group, it is their perceptions of the sanction regime for murder that matter. It is not known whether the current legal status of the death penalty is salient to potential murderers; other relevant factors could include how often the legal status of the death penalty has changed in recent years and the presence of high-profile cases, which create greater awareness of the legality of the death penalty in a state. Similarly, it is not known whether specific state and year information is salient to potential murderers; no evidence or theory is presented in the studies we reviewed to argue that the particular measures are valid or that alternative measures—such as executions in surrounding states or in one’s own county or executions in the last 5 years or the last 3 months—are not equally valid. As potential murderers may be attempting to predict the effective sanction regime several or many years into the future, when they might be sentenced or executed, it is particularly unclear what the relevant geographic or time horizon is for obtaining a salient measure.

Suppose that when deciding whether to commit a crime, potential murderers weigh the benefits and risks that committing murder may bring them along with the likelihood of those benefits or risks occurring. In this setting, the probability of being sentenced to death and henceforth being

executed are theorized to be among these perceived risks. The sanction risks are necessarily based on the individual’s perceptions. Either implicitly or explicitly, researchers in this field typically make an additional assumption that the risk perceptions of potential murderers are accurate and thus the perceived risks of receiving a death sentence, being executed, or being executed within a particular time period, are equivalent to the objective measures of these risks. The accuracy of this assertion that the risk perceptions of potential murderers are correct is questionable. There is no clear enforcement mechanism or learning process that would create such accuracy over time in potential murderers’ perceptions of the risk of incurring the death penalty.

Even if potential murderers’ risk perceptions are accurate, researchers must carefully specify the probabilities that might affect behavior and must confront the practical difficulties involved in measuring the relevant probabilities. The studies to date, however, have failed to address either of these issues. Because the post- Gregg panel research has not developed models based on the potential offender’s decision problem, the studies may mis-specify the relevant risk probabilities.

Much of this research considers how different conditional probabilities—say, the probability of execution given capital sanctions—each separately affects behavior (see, e.g., Dezhbakhsh, Rubin, and Shepherd, 2003). Yet, in standard decision models in which potential offenders weigh the uncertain benefits and costs of committing a crime, the joint probability of execution, capital sanctions, and arrests are germane. In this expected utility framework, Durlauf, Navarro, and Rivers (2010) show that the effect of the conditional probability of execution given a death sentence cannot be understood separately from the effects of the conditional probability of being caught and being sentenced to death if caught. Moreover, under a rational choice assumption, what will matter is the expected execution rate at time t + 6, which is not necessarily equal to the t – 6 years used in the literature.

Aside from this important issue of modeling and functional form, researchers also encounter practical obstacles in measuring the objective risks. Consider the risk of being executed given a death sentence, the risk that has been most focused on in the research, and consider how this risk could be objectively measured and updated each year for those in each state, as is assumed relevant in these models. In 1977, the first full year after the Gregg decision, 31 states provided the legal authority to impose the death penalty. In 1977, there were no data on the actual use of the death penalty in any state to create an estimate of the risk of execution. Some people might have predicted that Texas would be more vigorous in its actual use of the death penalty than California or Pennsylvania, but there were as yet no data to confirm such a prediction. Thus, it is unclear what the objective risk of receiving a death sentence or consequently being executed was in

any state for which the death penalty was legal in 1977. Only over time could an objective risk be based on data. Thus, over time one would expect divergent risks to develop in different states as data on the actual use of the death penalty in each state accumulated.

The process of forming and revising objective measures of the risks associated with the death penalty, however, would then be complicated by additional factors. One is that the volume of data on death sentences and executions available for calculating estimates of risk depends on the size of the state. By various measures of execution risk reported in Chapter 2 , Delaware was at least as aggressive in its use of the death penalty as Texas. However, over the period from 1976 to 2000, Delaware sentenced 28 people to death and carried out 11 executions, while Texas sentenced 753 people to death and carried out 231 executions. Thus, potential murderers have far more data on the actual practice of capital punishment each year in Texas than in Delaware. As a consequence, even for well-informed potential murderers living in states with similar sanction regimes, one would expect sanction risk perceptions to evolve along different paths that would depend, among other things, on the size of the state.

Perhaps in an environment in which sanction regimes were plausibly stable, the objective risk of execution could be precisely estimated even in small states with low murder rates. However, sanction regimes do not appear to be uniformly stable in large states for which it is feasible to obtain precise measures of year-to-year variation. Indeed, it is changes in the sanction regime for murder that the panel models use to inform their estimates of deterrence. Moratoriums and commutations may signal changes in regimes, particularly when accompanied by high-visibility announcements such as that by former Illinois Governor George Ryan in 2000. As noted in Chapter 2 , Texas appears to have shifted to a higher intensity execution sanction regime during the 1990s. Thus, in an environment in which sanction regimes are changing, the value of older data in forming a correct estimate of the prevailing sanction regime deteriorates. Moreover, the value of current data in forming a correct estimate of the future sanction regime also deteriorates. This forecast is particularly relevant as those considering murder now would face the sanction regime of the state in which the homicide is prosecuted some significant time in the future. These factors raise the question of whether year-to-year variation in a measure, such as the number of people executed in a state, has any bearing on the risk of execution for someone committing a murder today. Overall, the degree to which this, or other proposed measures of execution risk, predicts later executions has not been established.

To illustrate the problems associated with these different measures, consider using the number of executions in a state 1 year prior to the

year in which the homicide rate is measured divided by the number of death sentences in that state 7 years earlier. Those at risk for execution in any particular year are all those on death row at some point in that year. Those who were sentenced to death 7 years earlier could be executed at any time after their sentence, with different probabilities of being executed in each year based on the particulars of their crime, the appeals process, their health, the current governor, etc. In the early years after the national death penalty moratorium ended, on a national level, those who were executed had spent an average of 6-7 years on death row (Snell, 2010). There are several problems with using this information to justify lagging the denominator of a risk of execution measure by 7 years. First, only 15 percent of those sentenced to death in the United States since 1977 have been executed, with close to 40 percent leaving death row for other reasons (vacated sentences or convictions, commutations, a successful appeal, or death by other causes), and 45 percent are still on death row (Snell, 2010). Moreover, these figures vary substantially across states and over time.

Table 4-2 displays the number of inmates removed from death row in each state by the reasons for removal. First, there is substantial variation in the execution rates across states. For example, of the 150 people in Virginia sentenced to death from 1973 to 2009, 105—70 percent—have been executed. In contrast, in North Carolina, only 8 percent of the 528 people sentenced to death have been executed. Not only do these rates vary across states, but they also vary over time (see, e.g., Cook, 2009). Clearly, the number of years those executed have spent on death row is not an accurate measure of the number of years those on death row will spend there before they are executed, if they are ever executed. Second, the time spent on death row by those executed has varied over time at the national level, and it varies considerably by state (Snell, 2010). Third, no evidence has been given or arguments made to suggest that death sentences that come to some resolution earlier than others are indicative of the resolution for death sentences that have not yet come to resolution. Thus, using a fixed number of years of lag between those sentenced and those executed means that for many states and years this lag will have an uncertain relationship to the objective risk of execution given a death sentence.

The fact that there is a mismatch between the numerator and denominator in the models used is perhaps best illustrated by the many state-year cases in which there are one or more executions the prior year but there were no death sentences imposed 7 years earlier. Researchers have made a variety of ad hoc removals or substitutions for these undefined cases including: replace with zero or treat as missing (Kovandzic, Vieraitis, and Boots, 2009); numerator set to zero regardless of denominator and non-zero numerator and zero denominator considered missing at random (Donohue and Wolfers, 2005; Mocan and Gittings, 2003, 2010); replace with most

TABLE 4-2 Death Sentences and Removals, by Jurisdiction and Reason for Removal, 1973-2009

NOTE: Some inmates executed since 1977 or currently under sentences of death were sentenced prior to 1977. For those inmates sentenced to death more than once, the numbers are based on the most recent death sentence.

SOURCE: Snell (2010), Table 20.

recent defined ratio (Zimmerman, 2004). These (and other) ad hoc adjustments highlight the general problem that the people who were sentenced to death 7 years earlier may be executed before or after the year in which executions are counted, and they are not the only people at risk for being executed in the current or prior year. Overall, the interpretation of this ratio is not clear at all, whether the denominator is lagged any particular number of years, and its relevance to the objective risk of execution for each state and year, let alone to the risk perceptions of potential murderers, is highly questionable.

Basing execution risk measures only on data on executions that have actually been carried out, as has been done in the research being discussed, could result in a serious underestimate of the eventual probability of execution for those given a death sentence. In addition, this fact raises serious questions about whether the risk of ever being executed after a death sentence is the most salient measure or whether additional information is salient, such as measures that consider expected time to death, expected living conditions while on death row, and in comparison, expected time to death during a long prison sentence and conditions while in prison in that state. (Of course, one can only speculate about which, if any, of these variables is salient for potential murderers.)

These many complications make clear that even with a concerted effort by dedicated researchers to assemble and analyze relevant data on death sentences and executions, assessment of the actual and changing objective risk of execution that faces a potential murderer is a daunting challenge. Given the obstacles to obtaining an objective measure of this risk, the committee does not find any of the measures used in the studies to be credible measures of the objective risk of execution given a death sentence. We also reiterate that it is not known whether there is a relationship between any of these measures or any more credible objective measure of execution risk, and the execution risk as perceived by potential murderers.

MODEL ASSUMPTIONS

The conceptual and measurement concerns raised thus far, which are somewhat unique to studies on the effects of the death penalty on homicides, make it difficult to even to envision how one could draw valid inferences on the deterrent effect using the existing data. There is a complete lack of basic information on the noncapital component of the sanction regime, on how offenders perceive sanction risks, and on how to accurately measure those risks.

Even if these measurement problems are some day fully addressed, all studies using observational data must also address the counterfactual outcomes problem that arises because the data cannot reveal the outcome

that would occur if the death penalty had not been applied in treatment states and had been applied in control states. The data alone cannot reveal the effect of the death penalty. Rather, researchers must combine data with assumptions.

In the studies we reviewed, variations of the model in Equation 1 have been used to identify the impact of the death penalty on homicide. In this section, we consider the credibility of the four assumptions that have been applied in this literature: (1) that the death penalty measures are independent of the unobserved factors influencing homicide; (2) that certain observed covariates, called instrumental variables, are correlated with the death penalty but not with the unobserved factors that influence homicide; (3) that the effect of the death penalty is the same for all states and years; and (4) that the sanction regimes of adjacent states do not have any bearing on the effect of the death penalty in a particular state. We begin with a brief discussion of the benefits of random assignment.

Benefits of Random Assignment

As discussed in Chapter 3 , random assignment of treatment to large samples of subjects leads the distributions of all other characteristics of treatment and control subjects, whether observed or unobserved, to be approximately the same across the two groups. With small samples of subjects, this feature will hold on average, meaning that if a given set of subjects is repeatedly randomly assigned to treatment or control conditions, then the features of the subjects over all possible treatment groups and all possible controls groups would be exactly equal. In any particular randomization, however, there may be some features that differ by chance for the subjects in the treatment condition and those in the control condition.

This “balancing” of the characteristics of treatment and control subjects justifies the attribution of any difference in outcomes between the treatment and control groups to the treatment and not to other factors that may differ between the treatment and control subjects. Without randomization, the threat of misattributing the cause of any observed differences in outcomes to the treatment when it is actually due to other factors that differ between the groups is always present. In the remainder of this section we focus on the specific challenges this concern raises with regard to the death penalty and deterrence research, discuss the methodological strategies proposed to overcome these challenges, and assess whether these strategies have been successful.

In research on the death penalty and deterrence, the sanction regime for murder (including the legal status of the death penalty and the intensity with which the death penalty is applied) is, for obvious reason, not randomly assigned to state-by-year units. Hence, the possibility is present

that other factors may be the actual causes of any changes seen in homicide rates. Mechanically, what is required for this misattribution to occur is for death penalty changes to occur at similar times and places as changes in the true underlying causal factors. An example is a shift to a political leader with a “law and order” approach, which could both increase death-penalty-related risks and increase the perceived or actual arrest rates, either or both of which could bring down the homicide rate.

Fixed Effect Regression Model

Two methodological strategies are used to try to identify changes in the homicide rate that are caused by changes in the sanction regime for murder and not by other factors. The first methodological strategy is a fixed effect multiple regression (described above), in which fixed state and year effects are used to account for unobserved determinants of homicide. Given these fixed effects, researchers assume that the death penalty measures are statistically independent of the unobserved determinants of homicide, as would be the case in a randomized experiment. The second methodological strategy is to add an instrumental variables analysis to the fixed effect multiple regression models.

The fixed effects multiple regression models rely on state level variation in death penalty measures over time to attempt to identify a causal effect of death-penalty-related changes on homicide after controlling for the effects of the other variables in the models. But even if one provisionally assumes that the death penalty measures used in these models are correctly specified (i.e., are the salient factors for potential murderers), that the state-year unit is the unit at which potential murderers are assessing death-penalty-associated risks, and that the specification of all other variables and of the functional form of the model are correct, additional strong assumptions are still required for panel models to deliver estimates of a deterrent effect of the death penalty.

In the fixed effect models, states that do not apply the death penalty sanction are used to estimate the missing counterfactual for states that do experience different death penalty sanction levels. This approach identifies a causal effect only if there are no other factors besides the death penalty causing homicide rates to change differently in states that do and do not experience changes in death penalty sanctions. Many such factors may well exist—such as changes in economic conditions, crime rates, public perceptions or political regimes—and there is no reason to believe that these variables are fixed over time or across states. Moreover, the committee considers the omission from these models of other changes in the sanction regime for murder especially problematic. As discussed above, other changes in the sanction regime for murder, such as the likelihood of life without parole or the average sentence length, may well change con-

currently with death-penalty-related changes and so affect homicide rates. If states that do not experience changes in the death penalty also did not experience comparable changes (on average) in other aspects of the sanction regime for murder, then the required assumption is violated, and those states cannot provide the missing counterfactual information for states that do experience changes in the death penalty.

A related concern is that while death penalty sanctions may be affecting the homicide rate, the homicide rate may also be affecting death penalty sanctions and statutes. Since factors causing changes in observed in death penalty sanctions are unknown, one cannot rule out that changes in the homicide rate are among such factors. One way this could occur is that an increase in homicides may influence policy makers to increase the seriousness of sanctions or the likelihood of more serious sanctions for murder. Given this possibility, it is interesting to note that states in an available sanction have higher homicide rates on average than states that do not have the death penalty. Alternatively, an increase in the homicide rate may decrease the intensity with which the death penalty is applied as death penalty proceedings require more resources than non-death-penalty proceedings (Alarcón and Mitchell, 2011; California Commission on the Fair Administration of Justice, 2008; Cook, 2009; Roman, Chalfin, and Knight, 2009). This potential reverse causality problem—termed simultaneity in econometrics and feedback from output to input in the literature on causality—is particularly thorny to overcome. It was a major concern of the earlier National Research Council (1978) report on deterrence.

Instrumental Variables

In light of these concerns, Dezhbakhsh, Rubin, and Shepherd (2003) and Zimmerman (2004) have added an additional identification strategy, the use of instrumental variables. The idea behind an instrument is to separate out the part of any observed relationship between the death penalty and homicide that is spurious (i.e., resulting from the relationship of both to other factors) from the part of the relationship between the death penalty and homicide that is causal. The success of an instrument and the consequent instrumental variables analysis depends on the ability of the instrument to identify the portion of the variation in the treatment that is not contaminated by other causal factors that covary with the treatment and affect the outcome.

The success of an instrument depends on the degree to which it meets two requirements: (1) the death penalty sanction must vary with the value of the instrument, and (2) the average outcome must not vary as a function of the value of the instrument conditional on the treatment and levels of other covariates. A sufficient condition for this to hold is that the instru-

ment affects the homicide rate only through its effect on the death penalty sanctions, that is, that the instrument has no direct effect of its own on homicide rates. The first of these requirements can be checked empirically. The second requirement typically cannot be established using data and empirical analysis; it requires, instead, logic or theory to establish its credibility.

In the studies of death penalty and deterrence, the challenge is to find a variable that predicts death penalty sanctions but does not have a direct effect on the homicide rate. Although successful instrumental variables are notoriously difficult to come up with, making an argument for a particular instrument in this setting is complicated by the same fact that makes a spurious correlation very difficult to rule out. Little is known about the factors that actually affect homicide rates and, thus, the relevant factors may not be observed, measured, and controlled for. Compounding the problem, even less is known about factors that are associated with death-penalty-related-changes in the sanction regime for murder, or more relevantly, changes in perceptions of sanction risks. As noted above, factors contributing to changes in the legal status of the death penalty or the intensity with which the death penalty is applied could include economic, crime, or political changes that may also have direct consequences for the homicide rate.

These two gaps in knowledge—of factors that contribute to the homicide rate and factors that contribute to changes in the legality or practice of the death penalty and of risk perceptions—combine to heighten the concern that any association observed between death penalty changes and homicide rate changes may well be due to other factors. Thus, it is particularly difficult to convincingly establish that a proposed instrument does not directly affect the homicide rate, as is required.

A couple of examples of credible instruments in other settings may be useful to compare with those proposed in the studies of the death penalty and deterrence. In studies of crime and justice, Lee and McCrary (2009) use the age at which an offender can be tried as an adult as an instrument to identify the deterrent effect of incarceration; and Klick and Tabarrok (2005) use terror alerts in Washington, DC, as an instrument to identify the deterrent effect of police on crime on the Washington Mall. In the field of labor economics, a person’s Vietnam draft number has been used as an instrument to identify the effect of military service on future earnings because one’s draft number affects military service but does not have any direct effect on future earnings (Angrist, 1990). Month of birth has been used as an instrument to identify the effect of number of years of schooling on earnings because month of birth affects the academic year in which high school students of similar ages may legally leave school, but it is unlikely to have any direct effect on earnings (Angrist and Kreuger, 1991).

In contrast, the instruments proposed in the panel studies of the death penalty often appear to clearly violate the second requirement and some-

times violate the first. The instruments that have been used include police payroll, judicial expenditures, Republican vote share in each separate presidential election, prison admissions, the proportion of a state’s murders in which the assailant and victim are strangers, the proportion of a state’s murders that are nonfelony, the proportion of murders by nonwhite offenders, an indicator (yes/no) for whether there were any releases from death row due to a vacated sentence, and an indicator (yes/no) for whether there was a botched execution. The specific death penalty variables for which these instruments are proposed are measures of the risk for murderers of being arrested, the risk for those arrested for murder of receiving a death sentence, and the risk for those receiving a death sentence of being executed.

The studies offer very little justification for why these instruments are believed to be unrelated to the unobserved determinants of homicide, and in many cases the committee does not find the assumptions to be credible. To take two examples, it seems highly unlikely that police expenditures or the Republican vote share in a particular presidential election affect homicide rates only through the intensity with which the death penalty is exercised. To the contrary, police expenditures are likely to have a direct effect on homicide rates, and Republican vote shares may be related to a host of factors that are thought to influence crime (e.g., “get tough on crime” policies and a state’s demographic composition).

The idea of using instrumental variables to help identify the effect of the death penalty on homicides is sensible. The problem, however, is finding variables that are related to the sanction regime but not directly related to homicide rates. In general, the committee finds that the instruments proposed in the research are not credible and, as a result, this identification strategy has thus far failed to overcome the challenges to identifying a causal effect of the death penalty on homicide rates. 5

Homogeneity

Still another assumption of the panel regression model in Equation (4-1) is that any effect that the death penalty has on homicide rates is the same

5 In addition to these fundamental problems with the instruments, Donohue and Wolfers (2005) document that the results are highly sensitive to the specification of the instruments. For example, the results of Dezhbakhsh, Rubin, and Shepherd (2003) notably vary depending on whether and how one specifies the Republican vote share instrument: when using vote shares from six different elections, Dezhbakhsh, Rubin, and Shepherd (2003) report that each additional execution saves an average of 18 lives; when using a single vote share measure from the most recent election, Donohue and Wolfers (2005, p. 826) find that “instead of saving eighteen lives, each execution leads to eighteen lives lost.” Moreover, Donohue and Wolfers find that when the partisanship variables are not included among the instruments, more executions lead to substantially more homicides.

in every state and every year. This assumption of a homogeneous treatment effect is unlikely to hold in practice. This assumption relies on “unit exchangeability,” which requires that if the change in the death penalty measure observed in a particular state and year were instead to be observed in a different state and year, then the effect seen on homicide would be the same. For the legal status of the death penalty, this assumption would mean that the death penalty would have the same effect on homicides in the first year a low-crime state instituted the death penalty by legislative action as it would in the 15th year in Texas, a state in which it is widely used. The assumption would also mean that the effect would be the same in the year before the death penalty was removed as a possible sanction due to the courts’ determining the state’s death penalty law was unconstitutional in a state that had the death penalty but did not implement it. The death-penalty-intensity models also invoke this assumption. These models assume that every possible death-penalty-intensity level would have the same effect on homicide rates in every state and year if it was present in that state and year, regardless of the prior sanction regime, a state’s history with the death penalty, or any other factor.

Although this homogeneity assumption is commonly invoked in regression models, no support is offered for it in studies of the death penalty, and on its face it appears unlikely to hold. In fact, there is some evidence to the contrary. Figure 4-2 displays the distribution of estimates found by Donohue and Wolfers (2005, p. 810, Figure 4) when they estimate state-specific parameters using the same basic specification as in Dezhbakhsh and Shepherd (2006). They find that reinstatement of the death penalty in 1976 is associated with an increased homicide rate in 17 states and a lower rate in 24 states. Similarly, when Shepherd (2005) estimated state-specific deterrence parameters using the same basic specifications as in Dezhbakhsh, Rubin, and Shepherd (2003), she finds that executions deterred murder in 8 states, and increased murders in 13 states. The committee does not endorse these state-specific models and estimates, but the findings do suggest the potential for substantial heterogeneity in the effect of the death penalty across states, which violates a basic assumption of the panel data model in Equation (4-1) . Moreover, relaxing this homogeneity assumption can lead to very different inferences on the effect of the death penalty (see Chapter 6 ).

Finally, we note that the panel regression models also rely on the assumption that the sanction regimes of adjacent states do not have any bearing on the effect the death penalty in a particular state. In other words, the assumption asserts that the effect of the legalization of death penalty (or an increase to a higher death-penalty-intensity level) is the same for a state regardless of whether it is surrounded by states with a death penalty that is rarely implemented or is adjacent to, say, Texas. Although it is possible that the legal status of the death penalty (or an increase to a higher death-

FIGURE 4-2 Distribution of regression-estimated effects across states. SOURCE: Donohue and Wolfers (2005, p. 810, Figure 4). Used by permission.

penalty-intensity level) may have the same effect in each of these scenarios, it is also plausible that in the first setting the change in the sanction regime for murder would be perceived as small to potential murderers and in the second it would seem large. No research to date has explored whether the assumption that the treatment effect is insensitive to context created by other states is likely to hold, but violations of this assumption are known to lead to biased inferences (see, e.g., Rubin, 1986, p. 961). While accounting for social interactions is known to be difficult, Manski (in press) points to constructive ways of further addressing some of the problems that have been identified in the research to date.

The committee finds the failure of the panel studies we reviewed to address or overcome the primary challenges discussed above sufficient reason to view this research as noninformative with regard to the effect of the death penalty on homicides. The sanction regime is insufficiently specified and the measures of the intensity with which the death penalty is applied are flawed. No connection has been established between these measures and the perceived sanction risks of potential murderers. Neither

the fixed effects multiple regression models nor the proposed instruments are credible in overcoming challenges to identifying a causal link between the death penalty and homicide rates. The homogeneous response restriction that the effects are the same for all states and all time periods seems patently not credible.

Some researchers have argued that fixed effect models without instruments may provide valuable information, although not perfect information about the impact of death penalty on crime. One reason given is that they do not suffer from the defects that attend the use of manifestly invalid instrumental variables (see, for example, Donohue and Wolfers, 2009, and Kovandzic, Vieraitis, and Boots, 2009). This assessment of the informative value of the fixed effects models is dubious for several reasons. Most notably, these models do not address the data and modeling issues discussed throughout this chapter. The fixed effects models estimated in the literature do not specify the noncapital component of the sanction regime and setting aside the issue of how sanction risks are actually perceived, the measures of execution risk that are used do not appear to bear any resemblance to the true risk of execution. In addition, the key assumption that the death penalty sanction is independent of other unobserved factors that might influence homicide rates seems untenable. For these reasons, the fixed effects models are no more informative about the effect of the death penalty on homicide rates than other types of model.

Some studies play the useful role, either intentionally or not, of demonstrating the fragility of claims to have or not to have found deterrent effects (e.g., see Cohen-Cole et al., 2009; Donohue and Wolfers, 2005, 2009). However, even these studies suffer from the intrinsic shortcomings that severely limit what can be learned about the effect of the death penalty on homicide rates by using data on the death penalty as it has actually been administered in the United States in the past 35 years.

The challenges discussed here are formidable, and breakthroughs on several fronts would be necessary to overcome them. Only then might panel models, with or without instruments, be a fruitful methodology for studying the deterrent effects associated with the death penalty.

Alarcón, A.L., and Mitchell, P.M. (2011). Executing the will of the voters?: A roadmap to mend or end the California legislature’s multibillion-dollar death penalty debacle. Loyola of Los Angeles Law Review, 44 (Special), S41-S224.

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Donohue, J.J., and Wolfers, J. (2005). Uses and abuses of empirical evidence in the death penalty debate. Stanford Law Review, 58 (3), 791-845.

Donohue, J.J., and Wolfers, J. (2009). Estimating the impact of the death penalty on murder. American Law and Economics Review, 11 (2), 249-309.

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Frakes, M., and Harding, M.C. (2009). The deterrent effect of death penalty eligibility: Evidence from the adoption of child murder eligibility factors. American Law and Economics Review, 11 (2), 451-497.

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Many studies during the past few decades have sought to determine whether the death penalty has any deterrent effect on homicide rates. Researchers have reached widely varying, even contradictory, conclusions. Some studies have concluded that the threat of capital punishment deters murders, saving large numbers of lives; other studies have concluded that executions actually increase homicides; still others, that executions have no effect on murder rates. Commentary among researchers, advocates, and policymakers on the scientific validity of the findings has sometimes been acrimonious.

Against this backdrop, the National Research Council report Deterrence and the Death Penalty assesses whether the available evidence provides a scientific basis for answering questions of if and how the death penalty affects homicide rates. This new report from the Committee on Law and Justice concludes that research to date on the effect of capital punishment on homicide rates is not useful in determining whether the death penalty increases, decreases, or has no effect on these rates. The key question is whether capital punishment is less or more effective as a deterrent than alternative punishments, such as a life sentence without the possibility of parole. Yet none of the research that has been done accounted for the possible effect of noncapital punishments on homicide rates. The report recommends new avenues of research that may provide broader insight into any deterrent effects from both capital and noncapital punishments.

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Five death penalty cases to follow in the US this year

There are an estimated 2,905 people on death row in the US. Here are five particularly controversial cases.

The United States has put to death more than 1,446 people since 1976, according to the Washington, DC-based Death Penalty Information Center (DPIC). 

Texas leads the country in the number of executions carried out during that 41-year period, killing at least 540 people. Oklahoma and Virginia are tied for second with 112 executions each. 

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Meanwhile, public opinion on the death penalty seems to have been gradually changing. In September 2016, the Pew Research Center found that support for the death penalty was at its lowest in 41 years. 

Since 1973, at least 157 people have been exonerated and released from death row. But the DPIC says that, as of July 2016, 2,905 people remain on death row. 

The following are some of the cases where legal teams or campaigners are hoping to have death sentences overturned. 

In 1995, Duane Buck broke into the home of his ex-girlfriend, Debra Gardner, in Houston, Texas, after they broke up. Armed with two guns, he shot and killed Gardner and her friend Kenneth Butler while Gardner’s three children were in the home. He was tried, convicted and sentenced to death in 1997. 

Although Buck, now 53, never contested his guilt, the decision to deliver a capital punishment verdict rather than a life sentence has been thrown into question after a review of the racially charged testimony of an expert witness during the sentencing trial. 

Psychologist Walter Quijano, who was introduced by Buck’s own defence, testified that Buck would be dangerous in the future because he is African American.

READ MORE: Infographic – Breaking down the death penalty

In six other trials, Quijano testified to juries that black and Hispanic defendants were more likely to commit future crimes – the justification for sentencing them to death rather than life in prison.

In 2000,  Texas Attorney General John Cornyn, who is now a US senator, reviewed those cases and admitted that Quijano’s race-based testimony in those seven trials was “inappropriate”. 

Two years later, the other six death row inmates were granted new sentencing hearings, but Buck was not.

On February 22, 2017, the US Supreme Court ruled six-to-two in favour of granting Buck a chance at a new sentencing. 

Jeffrey Wood 

Jeffrey Wood, 43, was sentenced to death by a Texas court on March 3, 1996. His death sentence stems from the state’s so-called Law of Parties.

During the early morning hours of January 2, 1996, then 22-year-old Wood and Daniel Reneau parked outside a Texaco petrol station in Kerrville, his hometown in central Texas.

While Wood waited outside, Reneau shot dead the station attendant and took off with an estimated $11,350 from the safe and cash register. Reneau was executed in 2002.

The Texas penal code defines a person as “criminally responsible for an offence committed by the conduct of another” if the individual acts “with intent to promote or assist the commission of the offence, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offence”.

READ MORE: Does a Texas man who killed no one deserve death row?

According to the DPIC, at least 10 people have been killed for their role as accomplices in murders since 1979. Five of those were in Texas.

Relatives and defenders of Wood, who reportedly has an IQ of 80, say he suffers from intellectual disability and emotional impairment. 

On August 19, 2016, the Court of Criminal Appeals in Texas granted Wood a stay of execution and decided a state district court should re-examine the validity of testimony provided by Dr James Grigson, a forensic psychiatrist who testified that Wood was likely to be violent in the future despite never having examined him.

Grigson, who died in 2004, was expelled from the American Psychiatric Association and the Texas Society of Psychiatric Physicians for providing testimony against people he had never examined.

He was known as “Dr Death” for testifying against people facing the death penalty. 

Terry Williams 

When he was 17 years old, Williams killed 50-year-old Herbert Hamilton in Philadelphia, Pennsylvania. It was January 1984, and he reportedly lured Hamilton, who had allegedly repeatedly sexually abused the teen, and stabbed and beat him with a baseball bat until he died.

Six months later, Williams, then 18, and his friend Marc Draper lured Amos Norwood to a cemetery, where they beat him to death with a tyre iron. They later stole his car and took off to Atlantic City, New Jersey. 

After surrendering himself to the police in July 1984, Williams was eventually convicted of third-degree murder in the death of Hamilton and was sentenced to 27 years. For Norwood’s death, however, he was convicted of first-degree murder and sentenced to death. 

Williams, however, had been repeatedly raped as a child, and Norwood and Williams were allegedly among the perpetrators. Several others accused Norwood of sexually abusing them while they were young boys. 

Many of those involved in his original trial have publicly changed their minds since Williams was sentenced to death. Five jurors signed statements saying they wouldn’t have voted for capital punishment if they had known of the evidence of sexual abuse. 

READ MORE: Surviving death row

In 2012, Norwood’s wife Mamie signed a declaration that she did not want Williams to be executed for her late husband’s murder. 

A lower court in Pennsylvania found that the Philadelphia District Attorney’s Office had suppressed evidence that Norwood had sexually abused Williams. 

In the 1980s, however, Ronald Castille was district attorney and personally approved the decision to pursue capital punishment against Williams.

Castille later became Pennsylvania Supreme Court Justice and refused to recuse himself from consideration of the inmate’s death penalty – despite the lower court’s finding that the district attorney’s office had suppressed evidence under Castille. 

On June 9, 2016, the US Supreme Court ruled in a five-to-three vote that Williams’ constitutional rights had been violated. 

Willie Jerome Manning 

Willie Jerome Manning, 48, was convicted at two separate trials of two unrelated murders that took place in 1992 and 1993. He received two death penalty sentences. On death row for more than two decades, he has always maintained his innocence. 

Manning was found guilty of the December 1992 killing of students Jon Steckler, 19, and Tiffany Miller, 22, in Starkville, Mississippi. He was later sentenced to death. 

Five weeks after the killing of Steckler and Miller, 90-year-old Emmoline Jimmerson and her 60-year-old daughter, Albertha Jordan, were murdered during an attempted robbery. They were both beaten with an iron before their throats were slashed. A court also convicted Manning of their murders and eventually dealt him a second death sentence. 

In 2011, a key witness recanted his testimony that he had witnessed Manning entering Jimmerson’s apartment and filed affidavits that his testimony was false and the result of coercion. 

In 2013, Manning was given an execution date for the Steckler-Miller case. He came within hours of dying before the court granted him a stay of execution. 

In 2015, the Mississippi Supreme Court granted Manning a new trial for the Jimmerson-Jordan murders. He was exonerated and the charges were dropped. 

Still on death row for the Steckler-Miller case, Manning has attempted to challenge hair and DNA evidence presented in his first trial. 

The Federal Bureau of Investigation ( FBI ) has admitted that its forensic expert had made mistakes in testimony during the Steckler-Miller trial, and the US Department of Justice has told the prosecutor that “testimony containing erroneous statements regarding microscopic hair comparison analysis was used” against Manning.

If the forensic evidence eventually comes back in Manning’s favour, he will be the first person to be exonerated for two separate death sentences. 

Kerry Lyn Dalton 

In March 1995, Kerry Lyn Dalton was sentenced to death for the murder of Irene Louise May in a trailer park in Live Oak Springs, California, more than seven years earlier. She was 28 years old and reportedly struggling with drug addiction at the time she was said to have killed May. 

May’s body, however, has never been located, and Dalton was primarily convicted based on confessions the prosecution alleges she gave to other people. 

Victoria Ann Thorpe, Dalton’s sister, wrote a book about the trial and has campaigned for Dalton’s exoneration on the grounds that she was convicted on hearsay and there was neither a body nor a crime scene. 

Dalton has yet to have an appeal heard, although her sister says it is prepared and they have been waiting for years. 

Women make up less than two percent of the total death row population, according to DPIC. 

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Report: Death penalty cases show history of racial disparity

This undated photo provided by the Tennessee Department of Correction shows Pervis Payne. A new report by a think tank examining executions in the United States says death penalty cases show a long history of racial disparity, from who is executed to where and for what crimes. The report also details several case studies in which race may be playing a role today, including Payne, accused of the 1987 stabbing deaths of Charisse Christopher and her 2-year-old daughter, Lacie Jo. (Tennessee Department of Correction via AP)

This preview image of an AP digital embed shows state and federal executions carried out since restoration of the death penalty in 1976. (AP Digital Embed)

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WASHINGTON (AP) — Black people have been overrepresented on death rows across the United States and killers of Black people are less likely to face the death penalty than people who kill white people, a new report found.

The report from the Death Penalty Information Center is a history lesson in how lynchings and executions have been used in America and how discrimination bleeds into the entire criminal justice system. It traces a line from lynchings of old — killings outside the law — where Black people were killed in an effort to assert social control during slavery and Jim Crow, and how that eventually translated into state-ordered executions.

It comes as the U.S. grapples with criminal justice and police reform following George Floyd’s death and the deaths of other Black people at the hands of police and in the wake of mass protest. Across the country, 30 states have the death penalty but executions occur mostly in Southern states.

And the federal government this year began carrying out executions again after a 17-year hiatus despite waning public support for the death penalty. The center, a think tank that studies both state and federal capital cases, wrote that capital punishment must be included in the discussion of the past.

“I think what the data tells us and what history tells us is that they’re all part of the same phenomenon. The death penalty is inextricably linked to our history of slavery, of lynching, and Jim Crow segregation, and we wanted to put what is happening today in its appropriate context,” said Robert Dunham, who leads the Death Penalty Information Center.

The report found that throughout the modern era , people of color have been overrepresented on death row — in 2019, 52% of the death row inmates were Black, but that number has dropped to 42% this year, when approximately 60% of the population is white. But it also showed that the killers of white people were more likely than the killers of Black people to face the death penalty, and cases with white victims were more likely to be investigated.

Since the death penalty resumed in 1977, 295 Black defendants were executed for killing a white victim, but only 21 white defendants were executed for the killing of a Black victim even though Black people are disproportionately the victims of crime.

“If you’re thinking about Black victims of crime, they are more likely to be the victims of homicide, but we’ve created this system where Black victims of crime are less likely to get the services they need, the clearance rate for those crimes is much lower,” said Ngozi Ndulue, author of the study. “Instead what we have is what is seen as the ‘worst of the worst’ being executed, and that means in many cases the person killed was white.”

The report also details several case studies in which race may be playing a role today, including a man named Pervis Payne, accused of the 1987 stabbing deaths of Charisse Christopher and her 2-year-old daughter, Lacie Jo. Payne told police he was at Christopher’s apartment building in Millington, Tennessee, to meet his girlfriend when he saw a man in bloody clothes run past him. Payne, who is African American, has said he found and tried to help the victims, who were white, but panicked when he saw a white policeman and ran away.

Payne is sentenced to die Dec. 3, but he has asked a judge to order DNA testing. At the time of his trial, DNA testing of evidence was unavailable, and no testing has ever been done in his case. A request for DNA testing, in 2006, was refused based on a Tennessee Supreme Court ruling that has since been overturned.

His recent petition said police focused almost exclusively on him as a suspect, although nothing in his history suggested he would commit such a crime. He was a minister’s son who never caused problems either as a child or a teenager.

But prosecutors alleged Payne was high on cocaine and looking for sex when he killed Christopher and her daughter in a “drug-induced frenzy.” The town of Millington is in Shelby County, which has the most death sentences and lynchings of any county in the state.

The report also takes aim at the federal government’s scheduling of executions. The first set were all white men, a move critics argue was a political calculation to avoid uproar. The federal death penalty suffers the same racial bias, according to the report. Of the 57 people on federal death row, 34 are people of color, including 26 Black men, some convicted by all-white juries, the report found.

Christopher Vialva, the first Black inmate on federal death row set to die this year, is scheduled to be executed next week.

Associated Press writer Travis Loller in Nashville, Tennessee, contributed to this report.

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NCJRS Virtual Library

Support for the death penalty in developing democracies: a binational comparative case study, additional details, availability, related topics.

Policy Issues

Studies show no link between the presence or absence of the death penalty and murder rates.

DPIC Podcast: Discussions With  DPIC

Does Capital Punishment Deter Murder? Exploring mur­der rates, killings of police offi­cers, and the death penalty

DPIC Page: Murder Rates

View DPIC's information about state-by-state murder rates. State and regional murder statistics show no correlation between use of the death penalty and reduced crime.

Deterrence is probably the most commonly expressed rationale for the death penalty. The essence of the theory is that the threat of being executed in the future will be sufficient to cause a significant number of people to refrain from committing a heinous crime they had otherwise planned. Deterrence is not principally concerned with the prevention of further killing by an already convicted death-penalty defendant. That falls under the topic of incapacitation.

Deterrence should not be considered in a vacuum. The critical question is not whether potential criminals will be dissuaded from killing because they would face the death penalty rather than no punishment at all. Other punishments such as life without parole might provide equal deterrence at far less costs and without the attendant risk of executing an innocent person. Whether the death penalty is a proven method of lowering the murder rate has been subjected to many studies over many decades.

It is not enough to compare jurisdictions with the death penalty to those without unless the study controls for the many other variables that could affect the murder rate. For example, lower unemployment rates correlate with lower crime rates. More police involvement in the local community seems to reduce crime. The death penalty affects only a tiny percentage of even those who commit murder. Its effect is very difficult to pinpoint, and the National Academy of Sciences has concluded that past studies have neither proven nor disproven a deterrent effect.

If the death penalty is not a proven deterrent to murder, is it worth the excessive costs, risks of error, uncertainty of completion, and other problems that are inherent to its practice? On the political level, the deterrent value of the death penalty is often taken for granted without a careful examination of the research or a consideration of less risky alternatives. This is especially relevant given that death penalty use has been declining dramatically. Most states are not carrying out any executions in a given year.

What DPIC Offers

DPIC has collected many of the deterrent studies that have been conducted in the modern era and has summarized their results. It also provides some of the raw data on which such studies rely, such as the murder rate for each state in each year in the modern era, along with the number of executions and death sentences for each state in the same periods.

News & Developments

Apr 06, 2023

RESEARCH : Halting the Use of the Death Penalty Did Not Result in an Increase in Homicide Rates

Stephen Oliphant’s recent study on the death penalty’s effect on homi­cide rates pub­lished in Criminology &  Public Policy found ​ “ no evi­dence of a deter­rent effect attrib­ut­able to death penal­ty statutes.” Oliphant first dis­cuss­es deter­rence the­o­ry, which ​ “ posits that pun­ish­ment, or the threat of pun­ish­ment, dis­cour­ages indi­vid­u­als from com­mit­ting crime,” and its role in cap­i­tal pun­ish­ment dis­course, where pro­po­nents of the death penal­ty have argued that the threat of the death…

Feb 24, 2022

Despite Ineffectiveness as Public-Safety Tool, Anti-Abolition Lawmakers Push Bills to Reinstate Death Penalty for Killings of Police Officers

Despite the absence of evi­dence that the death penal­ty pro­tects police or pro­motes pub­lic safe­ty, law­mak­ers in sev­er­al states that have abol­ished cap­i­tal pun­ish­ment have intro­duced bills to rein­state cap­i­tal pun­ish­ment for the mur­ders of police…

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• Introduction
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The cumulative probability of dying by the corresponding age was estimated using the results from the model presented in Table 2. Incarcerated <18 y indicates ever spending time in an adult correctional facility as a youth. CLS indicates criminal legal system.

eAppendix 1. Directed Acyclic Graph to Guide Model Selection

eReferences.

eFigure. Directed Acyclic Graph Guiding the Selection of Covariates

eAppendix 2. Missing Case Information

eTable 1. Descriptive Statistics for the Analytical Sample Before Imputation (N = 8,951)

eTable 2. Missing Case Comparison for Key Constructs Before Imputation (n = 8,951)

eAppendix 3. Model Replications With Youth Incarcerated in Juvenile Facilities

eTable 3. Parametric Survival Model Regressing Age at Death on Being Incarcerated in a Juvenile Facility

eTable 4. Parametric Survival Model Regressing Age at Death on Being Incarcerated in a Juvenile Facility, Arrested as a Juvenile, and Incarcerated in an Adult Facility as a Juvenile

eAppendix 4. R Script

Data Sharing Statement

• Error in Wording JAMA Network Open Correction July 24, 2023
• Confining Children in Adult Prisons and Premature Mortality JAMA Network Open Invited Commentary July 5, 2023 Elizabeth S. Barnert, MD, MPH, MS

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Silver IA , Semenza DC , Nedelec JL. Incarceration of Youths in an Adult Correctional Facility and Risk of Premature Death. JAMA Netw Open. 2023;6(7):e2321805. doi:10.1001/jamanetworkopen.2023.21805

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Incarceration of Youths in an Adult Correctional Facility and Risk of Premature Death

• 1 Center for Legal Systems Research, RTI International, Research Triangle Park, North Carolina
• 2 Department of Sociology, Anthropology, and Criminal Justice, Rutgers University, Camden, New Jersey
• 3 New Jersey Gun Violence Research Center, Department of Urban-Global Health, School of Public Health, Rutgers University, New Brunswick, New Jersey
• 4 School of Criminal Justice, University of Cincinnati, Cincinnati, Ohio
• Invited Commentary Confining Children in Adult Prisons and Premature Mortality Elizabeth S. Barnert, MD, MPH, MS JAMA Network Open
• Correction Error in Wording JAMA Network Open

Question   Is incarceration of youths in adult correctional facilities associated with an increased risk of mortality through 39 years of age?

Findings   In this cohort study of 8951 youths, incarceration in an adult correctional facility before the age of 18 years was associated with a 33% increase in the risk of mortality between 18 and 39 years of age.

Meaning   This study suggests that incarceration in an adult correctional facility as a youth was associated with early mortality, potentially through diminished psychological and physical health.

Importance   Youths incarcerated in adult correctional facilities are exposed to a variety of adverse circumstances that could diminish psychological and physical health, potentially leading to early mortality.

Objective   To evaluate whether being incarcerated in an adult correctional facility as a youth was associated with mortality between 18 and 39 years of age.

Design, Setting, and Participants   This cohort study relied on longitudinal data collected from 1997 to 2019 as part of the National Longitudinal Survey of Youth–1997, a nationally representative sample of 8984 individuals born in the United States between January 1, 1980, and December 1, 1984. The data analyzed for the current study were derived from annual interviews between 1997 and 2011 and interviews every other year from 2013 to 2019 (19 interviews in total). Participants were limited to respondents aged 17 years or younger during the 1997 interview and alive during their 18th birthday (8951 individuals; >99% of the original sample). Statistical analysis was performed from November 2022 to May 2023.

Intervention   Incarceration in an adult correctional facility before the age of 18 years compared with being arrested before the age of 18 years or never arrested or incarcerated before the age of 18 years.

Main Outcomes and Measures   The main outcome for the study was age at mortality between 18 and 39 years of age.

Results   The sample of 8951 individuals included 4582 male participants (51%), 61 American Indian or Alaska Native participants (1%), 157 Asian participants (2%), 2438 Black participants (27%), 1895 Hispanic participants (21%), 1065 participants of other race (12%), and 5233 White participants (59%). A total of 225 participants (3%) died during the study period, with a mean (SD) age at death of 27.7 (5.9) years. Incarceration in an adult correctional facility before the age of 18 years was associated with an increased risk of earlier mortality between 18 and 39 years of age compared with individuals who were never arrested or incarcerated before the age of 18 years (time ratio, 0.67; 95% CI, 0.47-0.95). Being arrested before the age of 18 years was associated with an increased risk of earlier mortality between 18 and 39 years of age when compared with individuals who were never arrested or incarcerated before the age of 18 years (time ratio, 0.82; 95% CI, 0.73-0.93).

Conclusions and Relevance   In this cohort study of 8951 youths, the survival model suggested that being incarcerated in an adult correctional facility may be associated with an increased risk of early mortality between 18 and 39 years of age.

Incarceration exposure is associated with early mortality. 1 - 3 Research documents a dose-response association such that more time served in prison corresponds to greater reductions in life span. 4 Mortality excesses associated with incarceration translate to losses of life expectancy of 4 to 5 years, or roughly 13% of the average US life expectancy at the age of 45 years. 5 Numerous mechanisms have been shown to link incarceration to early mortality, including greater risk for violent victimization and homicide, 6 substance use and overdose, 7 , 8 and higher incidence of chronic and infectious disease. 9 , 10

A smaller body of research documents the association of incarceration exposure with early mortality specifically among youths, legally defined as children younger than 18 years. 11 Youths with a history of incarceration have an all-cause mortality rate roughly 5.9 times higher than observed in nonincarcerated Medicaid-enrolled youths of the same age, associated largely with exposure to violence and homicide victimization. 6 Incarcerated youths face greater risk for early death than nonincarcerated youths as involvement in the criminal legal system becomes more protracted and severe. 12 Youths who are incarcerated experience health challenges related to dental care, sexual and reproductive health, risk-taking behaviors, and mental well-being that heighten the likelihood of early death. 13

In most US states, youths can be transferred and sentenced in adult court, resulting in detention in adult prison facilities. 14 , 15 Incarceration in juvenile vs adult correctional facilities represents vastly different experiences. Adult facilities are often much larger, have higher resident to staff ratios, and place less emphasis on treatment, counseling, and education. 16 Even though only approximately 1% of formally processed juvenile delinquency cases are transferred to an adult criminal court, 17 research documents serious extralegal consequences for youths incarcerated in adult facilities. Youths incarcerated in adult facilities report substantially greater rates of posttraumatic stress disorder and depression compared with those in juvenile facilities. 18 - 20 In Texas, youths in adult facilities reported more distress and higher rates of psychiatric symptoms than those in juvenile centers. 18 Most salient to the present study, researchers have observed that detention in jail and transfer to adult court were associated with early mortality among a sample of youths in Indiana. 12

Young people housed in adult correctional facilities report being more afraid for their safety. 14 Youths incarcerated in adult facilities are more likely to engage with antisocial adult peers in prison environments, exposing them to greater risk for sexual and physical assault. 18 , 21 , 22 Youths in adult facilities often struggle to adjust to prison life and display heightened rates of disciplinary misconduct and violence, which can lead to further isolation and loss of socialization during critical developmental periods. 23 Incarceration among adults is likely to have damaging iatrogenic effects for youths as a result of more harmful exposures in prison and disruption to key social, psychological, and developmental processes. Poorer mental and physical health, greater risk for violence and victimization, and higher engagement in risky behaviors, such as substance abuse, may be associated with early mortality after release for those who have been incarcerated as a youth in an adult facility.

We hypothesize that juvenile incarceration in an adult correctional facility will be associated with greater risk for early mortality after accounting for broader exposure to the criminal legal system via arrests, associated risk factors, and demographic differences.

The current study follows the Strengthening the Reporting of Observational Studies in Epidemiology ( STROBE ) reporting guideline for reporting by satisfying all the applicable items (1-21) in terms of reporting on a secondary publicly available cohort study. We did not seek institutional review board approval as the study relied on publicly available deidentified data that can be retrieved by anyone. The approval for the data collection was obtained by the institutional review boards at The Ohio State University and National Opinion Research Center at the University of Chicago by the NLSY97 research team, with which we have no affiliation. All data documentation associated with the National Longitudinal Study of Youth–1997 (NLSY97) is provided on the website of the US Bureau of Labor Statistics. The data for the current study are derived from the publicly available version of the NLSY97, a nationally representative sample of individuals born in the United States between January 1, 1980, and December 1, 1984. 24 The 8984 respondents agreed to participate in yearly interviews from 1997 to 2011 and in interviews every 2 years from 2013 to 2019. In total, 19 interviews have been completed, with the respondents ranging in age from 12 to 18 years during the 1997 interview and from 34 to 39 years during the 2019 interview. If a respondent was incarcerated at the time of the interview, the interview was completed in person in a visitation room or via telephone at no cost to the respondent. The analytical sample included respondents who were 17 years of age or younger during the 1997 interview and alive during their 18th birthday (8951 individuals; >99% of the original sample). Because the study uses publicly available deidentified data, consent was not obtained from any respondents.

Respondents who did not complete an interview because they died were identified as part of the nonresponse tracking for the NLSY97. With the use of this information, 2 variables were created. First, a variable for death was created to indicate if a respondent died between 18 and 39 years of age (0 = no; 1 = yes). Of the 8951 individuals included in the sample, 225 (3%) died between 18 and 39 years of age. The mortality rate observed in the NLSY97 is consistent with the estimates produced by the US Social Security Office. 25 Second, a respondent’s age at death was recorded as their age during the year they died, as reported by family members or friends. The NLSY97 research team did request and confirm death records for all respondents using official data sources from state agencies. Consistent with the implementation of a survival analysis, the age at the final interview was also recorded in the age at death measure for individuals who did not die between 18 and 39 years of age.

The respondents were requested to report the date of each arrest and the start and end date for each incarceration period since their last interview. The NLSY97 research team developed monthly arrays identifying the number of arrests a respondent experienced and if a respondent was incarcerated at any point during a specified month from 1992 to 2019. Due to concerns associated with privacy, the NLSY97 research team considered an individual incarcerated during a specified month if they spent 1 or more days in the correctional facility during that month. With the use of the monthly arrays and the age of the respondent each year, 2 variables were created to measure whether a respondent was arrested or incarcerated before the age of 18 years (0 = no; 1 = yes). Two continuous variables were created to measure the number of arrests and the number of months incarcerated that each respondent experienced before the age of 18 years. Periods of confinement associated with status offenses (eg, truancy), holds for DUI (driving under the influence of alcohol or drugs), holds for public intoxication, pretrial detention, and confinement in juvenile detention centers were excluded from the monthly arrays for incarceration created by the NLSY97 research team. The measures created for the current study capture data on whether an adolescent was incarcerated in an adult correctional facility (jail or prison) and the number of months spent in an adult correctional facility. 26

Study variables were selected to limit the potential bias associated with colliders and confounders—and exclude mediators—following the development of a theoretically and empirically formed, directed acyclic graph (eAppendix 1 and eFigure in Supplement 1 ). 1 , 10 , 12 , 13 Four covariates known to be associated with contact with the criminal legal system and early mortality were included in the survival model. 27 , 28 These covariates include items measuring the self-rated general health of the respondent before the age of 18 years (0 = poor; 1 = fair; 2 = good; 3 = very good; 4 = excellent; measured in 1997), 29 , 30 whether 1 or both of the respondent’s parents were incarcerated before the respondent turned 16 years of age, whether the respondent experienced childhood adversity (eg, experienced homelessness, lived in a place without water or electricity, or resided in emergency housing) before the age of 18 years, and the respondent’s household net worth before the age of 18 years.

In addition to these risk factors, demographic characteristics were adjusted for the inclusion of male sex (reference = female sex), ethnicity (Hispanic; reference = non-Hispanic), and race (American Indian or Alaska Native, Asian, Black, White; reference was other race [including individuals of multiple races and individuals who did not identify a race after initially identifying as Hispanic]). A dichotomous indicator (supplemental sample) for the NLSY97 sample in which the respondent participated (0 = initial sample; 1 = supplemental sample) was also included in the model to adjust for possible differences in the sampling procedures. 24

Statistical analysis was performed from November 2022 to May 2023. A 4-part analytical strategy was implemented. First, a missing data analysis was conducted, and multiple imputation using the random forest method (continuous constructs) and the logistic regression method (dichotomous constructs) was implemented to impute missing values on the covariates (eAppendix 2, eTable 1, and eTable 2 in Supplement 1 ). 31 The imputed values for the covariates represent the first of 5 imputed data sets with 10 iterations each (pulled using the complete function from the mice package in R, version 4.2.3 [R Project for Statistical Computing]). 31 No information was missing on the number of arrests, the number of months incarcerated, or the death status of the respondents. Second, descriptive statistics were produced. Third, death status and the age at death were regressed on the independent and control variables using a parametric survival model. The parametric survival model was estimated using a lognormal distribution given the distributional properties of age at death. An intercept-only model was estimated with each distributional specification—lognormal, exponential, Weibull, gaussian, logistic, and loglogistic—and the resulting Akaike information criteria were compared. A parametric survival model was preferred for the current analysis because the association between the independent variables and the dependent variable did not satisfy the proportional hazard assumption of a Cox proportional hazards regression survival model. 32 - 34 The time ratio (TR) represents the risk of an event occurring across all time periods, where values higher than 1 indicate an increased odds of survival and values lower than 1 indicate an increased risk of death. The TR is calculated as the exponentiated value of the slope coefficient (exp [ b ]). The cumulative probability of death was calculated and plotted to permit a visual evaluation of the results. All P values were from 2-sided tests and results were deemed statistically significant at P  < .05. All analyses were estimated using the survival 35 and the SurvMetrics packages in R, version 4.2.3. 36 To maintain open science, the R script used to clean the data and estimate all of the statistical analyses is provided in eAppendix 4 in Supplement 1 .

The analytical sample of 8951 individuals included 4582 male participants (51%), 61 American Indian or Alaska Native participants (1%), 157 Asian participants (2%), 2438 Black participants (27%), 1895 Hispanic participants (ethnicity; 21%), 1065 participants of other race (12%), and 5233 White participants (59%) ( Table 1 ). A total of 225 respondents (3%) died during the study period, with a mean (SD) age at death of 27.7 (5.9) years. A total of 1597 of the respondents (18%) in the analytical sample were arrested before the age of 18 years, while 109 respondents (1%) were incarcerated as youths in an adult correctional facility. Some youths experienced as many as 17 arrests and were incarcerated for up to 3.5 years in an adult facility.

Table 2 provides the results of the parametric survival model that assessed the likelihood of death before the age of 39 years. Incarceration of youths in an adult correctional facility was associated with an approximate 33% increase in the risk of death (TR, 0.67; 95% CI, 0.47-0.95) compared with nonincarcerated youths. In addition, being arrested before the age of 18 years was associated with an increase in the risk of death until the age of 39 years (TR, 0.82; 95% CI, 0.73-0.93) compared with not being arrested. Neither the number of months of incarceration in an adult facility (TR, 1.02; 95% CI, 0.99-1.06) nor the number of arrests (TR, 1.00; 95% CI, 0.97-1.04) were associated with the risk of death prior to 39 years of age. Better general health before 18 years of age was associated with a higher likelihood of survival (TR, 1.10; 95% CI, 1.05-1.15), while being male was associated with a higher risk of early death (TR, 0.84; 95% CI, 0.77-0.91).

We plotted the cumulative probability of death for youths incarcerated in adult correctional facilities, arrested youths, and respondents without legal system contact before 18 years of age. As shown in the Figure , approximately 8% of youths incarcerated in adult correctional facilities were estimated to die by the age of 39 years. In comparison, just over 5% of youths arrested before 18 years of age and just over 2% of youths without legal system contact before the age of 18 years were estimated to have died by the age of 39 years. Overall, the findings suggest that contact with the legal system as a youth—both arrest and, especially, incarceration in adult correctional facilities—was associated with an increased risk of death between 18 and 39 years of age. Supplemental analyses (eAppendix 3, eTable 3, and eTable 4 in Supplement 1 ) assessed whether the findings held after accounting for time served in a juvenile facility. The association between incarceration in an adult correctional facility and an increased risk of death remained virtually identical (TR, 0.67; 95% CI, 0.47-0.95) (eTable 4 in Supplement 1 ).

Although a relatively large body of literature highlights the detrimental associations of incarceration exposure with health overall, a much smaller segment has focused on such associations for youths imprisoned in adult facilities. Youths incarcerated in adult facilities experience a system that is not designed for the crucial developmental years of adolescence, where neuronal and social factors interact to affect personality and behavioral outcomes across the life course. 37 Instead, such youths encounter a system intended exclusively for socially matured individuals. Within such a system, youths may not only engage in risky and harmful behaviors 37 but they may directly experience risk factors associated with the likelihood of early mortality. Experiences of incarceration have been associated with a variety of detrimental outcomes related to well-being; however, to date, no study has examined the extent to which these experiences may be associated with premature death in a national sample, to our knowledge. The current study addressed this gap in the literature using a longitudinal, nationally representative sample of US youths.

The analyses revealed 3 key findings. First, while a relatively small proportion of youths in the analytical sample were incarcerated in an adult facility, there was substantial variability in the length of exposure. Second, our multivariable models accounted for several general risk factors associated with health, family background, and socioeconomic status, yet the association between exposure to an adult correctional facility and early mortality remained. This association is illustrated in the Figure , where the proportion of youths who were estimated to die by the age of 39 years appeared to be approximately 3 times higher for those who were incarcerated in an adult facility compared with those without contact with the legal system. Third, while it appears that any formal contact with the legal system was associated with an increased risk of premature death, being incarcerated in an adult facility as a youth evinced the highest risk for early mortality. The findings of the supplemental models further suggest that the circumstances to which youths are exposed during incarceration in adult correctional facilities could be associated with detrimental health outcomes because incarceration in juvenile correctional facilities was not associated with early mortality (eAppendix 3, eTable 3, and eTable 4 in Supplement 1 ).

Overall, these results point to a handful of potential explanations. First, any exposure to an adult correctional facility as a youth may have an association with early mortality beyond other risk factors, such as general health, being male, and early contact with the legal system. Several potential mechanisms are plausible that align with prior research on the detrimental effects of incarceration (eg, increased risk for violent victimization, substance use, disease, and harmful behaviors). 6 , 7 , 9 These associations, however, were examined in prior literature using adult prisoners in adult facilities. Thus, it is conceivable that the associations are exacerbated when experienced by youths in an adult facility. Future research should further assess potential mechanisms of the association observed here.

Second, the observed association may not be causal but instead indicative of a process unrelated or tangentially related to the legal system. Youths who are incarcerated tend to possess health-related risk factors at much higher rates than youths who do not experience incarceration. 38 , 39 Consequently, the mortality risk factors that youths bring with them to the incarceration process may be amplified by experiences in adult correctional facilities. Whether the association is causal or a function of the risk factors that youths bring with them (or both), the findings observed in the current study highlight the need for rethinking the practice of transferring youths to adult facilities to avoid the potential lethality of such exposure.

Although the current study illustrated an increased likelihood of early mortality for youths incarcerated in adult facilities, at least 5 limitations should temper the findings. First, there could be aspects of the NLSY97 cohort used to form the analytical sample that were associated with the observed findings. 40 Second, the data do not provide for a nuanced assessment of the potential mechanisms for the observed patterns. For example, heterogeneity in the experience of adult facilities among youths transferred to such prisons in the analytical sample is a potential factor associated with the increased likelihood of early death. Third, due to data limitations, the NLSY97 does not identify the cause of death. Fourth, a limited number of individuals died between 18 and 39 years of age (n = 225), and the current study can be generalized only to the birth cohort of individuals born in the US between 1980 and 1984. Fifth, due to the existing literature and the measures available in the NLSY97, the current study adjusted only for mechanisms known to confound the association of interest. Future studies should consider additional confounders not measured or available in the NLSY97.

Our cohort study illustrates that incarcerating youths in adult correctional facilities is potentially very harmful. The observed association between youth imprisonment in adult correctional facilities and increased risk of mortality further illustrates a need for reassessment of this practice. Furthermore, the results emphasize the importance of considering the health-related needs of youths while pursuing rehabilitation in prison. 9 , 10 , 18 Prevention and intervention efforts should be directed at factors to ameliorate the potential extralegal harm—including lethal impacts—of placing youths in adult correctional facilities.

Accepted for Publication: May 12, 2023.

Published: July 5, 2023. doi:10.1001/jamanetworkopen.2023.21805

Correction: This article was corrected on July 24, 2023, to fix an error in wording in the Methods section.

Open Access: This is an open access article distributed under the terms of the CC-BY License . © 2023 Silver IA et al. JAMA Network Open .

Corresponding Author: Ian A. Silver, PhD, Center for Legal Systems Research, RTI International, 3040 E Cornwallis Rd, Research Triangle Park, NC 27709 ( [email protected] ).

Author Contributions: Dr Silver had full access to all of the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.

Concept and design: All authors.

Acquisition, analysis, or interpretation of data: Silver, Nedelec.

Drafting of the manuscript: All authors.

Critical revision of the manuscript for important intellectual content: All authors.

Statistical analysis: Silver, Nedelec.

Conflict of Interest Disclosures: None reported.

Data Sharing Statement: See Supplement 2 .

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The overall increase in U.S. gun deaths since the beginning of the pandemic includes an especially stark rise in such fatalities among children and teens under the age of 18. Gun deaths among children and teens rose 50% in just two years , from 1,732 in 2019 to 2,590 in 2021.

How has the rate of U.S. gun deaths changed over time?

While 2021 saw the highest total number of gun deaths in the U.S., this statistic does not take into account the nation’s growing population. On a per capita basis, there were 14.6 gun deaths per 100,000 people in 2021 – the highest rate since the early 1990s, but still well below the peak of 16.3 gun deaths per 100,000 people in 1974.

The gun murder rate in the U.S. remains below its peak level despite rising sharply during the pandemic. There were 6.7 gun murders per 100,000 people in 2021, below the 7.2 recorded in 1974.

The gun suicide rate, on the other hand, is now on par with its historical peak. There were 7.5 gun suicides per 100,000 people in 2021, statistically similar to the 7.7 measured in 1977. (One caveat when considering the 1970s figures: In the CDC’s database, gun murders and gun suicides between 1968 and 1978 are classified as those caused by firearms and explosives. In subsequent years, they are classified as deaths involving firearms only.)

Which states have the highest and lowest gun death rates in the U.S.?

The rate of gun fatalities varies widely from state to state. In 2021, the states with the highest total rates of gun-related deaths – counting murders, suicides and all other categories tracked by the CDC – included Mississippi (33.9 per 100,000 people), Louisiana (29.1), New Mexico (27.8), Alabama (26.4) and Wyoming (26.1). The states with the lowest total rates included Massachusetts (3.4), Hawaii (4.8), New Jersey (5.2), New York (5.4) and Rhode Island (5.6).

The results are somewhat different when looking at gun murder and gun suicide rates separately. The places with the highest gun murder rates in 2021 included the District of Columbia (22.3 per 100,000 people), Mississippi (21.2), Louisiana (18.4), Alabama (13.9) and New Mexico (11.7). Those with the lowest gun murder rates included Massachusetts (1.5), Idaho (1.5), Hawaii (1.6), Utah (2.1) and Iowa (2.2). Rate estimates are not available for Maine, New Hampshire, Vermont or Wyoming.

The states with the highest gun suicide rates in 2021 included Wyoming (22.8 per 100,000 people), Montana (21.1), Alaska (19.9), New Mexico (13.9) and Oklahoma (13.7). The states with the lowest gun suicide rates were Massachusetts (1.7), New Jersey (1.9), New York (2.0), Hawaii (2.8) and Connecticut (2.9). Rate estimates are not available for the District of Columbia.

How does the gun death rate in the U.S. compare with other countries?

The gun death rate in the U.S. is much higher than in most other nations, particularly developed nations. But it is still far below the rates in several Latin American countries, according to a 2018 study of 195 countries and territories by researchers at the Institute for Health Metrics and Evaluation at the University of Washington.

The U.S. gun death rate was 10.6 per 100,000 people in 2016, the most recent year in the study, which used a somewhat different methodology from the CDC. That was far higher than in countries such as Canada (2.1 per 100,000) and Australia (1.0), as well as European nations such as France (2.7), Germany (0.9) and Spain (0.6). But the rate in the U.S. was much lower than in El Salvador (39.2 per 100,000 people), Venezuela (38.7), Guatemala (32.3), Colombia (25.9) and Honduras (22.5), the study found. Overall, the U.S. ranked 20th in its gun fatality rate that year .

How many people are killed in mass shootings in the U.S. every year?

This is a difficult question to answer because there is no single, agreed-upon definition of the term “mass shooting.” Definitions can vary depending on factors including the number of victims and the circumstances of the shooting.

The FBI collects data on “active shooter incidents,” which it defines as “one or more individuals actively engaged in killing or attempting to kill people in a populated area.” Using the FBI’s definition, 103 people – excluding the shooters – died in such incidents in 2021 .

The Gun Violence Archive, an online database of gun violence incidents in the U.S., defines mass shootings as incidents in which four or more people are shot, even if no one was killed (again excluding the shooters). Using this definition, 706 people died in these incidents in 2021 .

Regardless of the definition being used, fatalities in mass shooting incidents in the U.S. account for a small fraction of all gun murders that occur nationwide each year.

How has the number of mass shootings in the U.S. changed over time?

The same definitional issue that makes it challenging to calculate mass shooting fatalities comes into play when trying to determine the frequency of U.S. mass shootings over time. The unpredictability of these incidents also complicates matters: As Rand Corp. noted in a research brief , “Chance variability in the annual number of mass shooting incidents makes it challenging to discern a clear trend, and trend estimates will be sensitive to outliers and to the time frame chosen for analysis.”

The FBI found an increase in active shooter incidents between 2000 and 2021. There were three such incidents in 2000. By 2021, that figure had increased to 61.

Which types of firearms are most commonly used in gun murders in the U.S.?

In 2020, the most recent year for which the FBI has published data, handguns were involved in 59% of the 13,620 U.S. gun murders and non-negligent manslaughters for which data is available. Rifles – the category that includes guns sometimes referred to as “assault weapons” – were involved in 3% of firearm murders. Shotguns were involved in 1%. The remainder of gun homicides and non-negligent manslaughters (36%) involved other kinds of firearms or those classified as “type not stated.”

It’s important to note that the FBI’s statistics do not capture the details on all gun murders in the U.S. each year. The FBI’s data is based on information voluntarily submitted by police departments around the country, and not all agencies participate or provide complete information each year.

Note: This is an update of a post originally published on Aug. 16, 2019.

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'Huh?' A Donald Trump pardon recipient would face the death penalty under his new plan

WASHINGTON - Part of Donald Trump's record in office - freeing convicts with long prison sentences for relatively minor drug offenses - has run up against one of his 2024 campaign planks: The death penalty for drug dealers .

Trump seemed rattled this week when told that Alice Johnson , a high-profile pardon recipient, would be vulnerable to execution under his new criminal justice proposal.

"Huh?" Trump said during an interview broadcast Tuesday when Fox News anchor Bret Baier told him that "she'd be killed under your plan."

Johnson received a pardon from Trump shortly after she spoke on his behalf at the 2020 Republican Party convention . In 2018, Trump commuted her life prison sentence at the behest of celebrity Kim Kardashian West and other supporters.

Johnson had served 21 years after her conviction for her role in cocaine trafficking.

Trump and his aides promoted Johnson's case as part of their "First Step" criminal justice reform bill , the subject of criticism from some of Trump's 2024 campaign opponents.

During the Fox interview, Baier cited studies showing that, of 13,500 released under the law, about 12% have gone on to commit new crimes.

Trump's stumbling answer to the question of Johnson and the death penalty drew much comment on social media .

A longtime supporter of the death penalty for drug dealers, Trump said Johnson played a minor role in drug sales and that his death penalty proposal would apply to major dealers.

"It would depend on the severity," Trump said. "It would depend on the severity."

Five takeaways from Donald Trump's Fox News interview on classified docs, China, Ukraine and more

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Long COVID Basics

• Long COVID is a serious illness that can result in chronic conditions requiring comprehensive care.
• Long COVID can include a wide range of ongoing symptoms and conditions that can last weeks, months, or even years after COVID-19 illness.
• Anyone who had a SARS-CoV-2 infection, the virus that causes COVID-19, can experience Long COVID, including children.
• COVID-19 vaccination is the best available tool to prevent Long COVID.
• Living with Long COVID can be difficult and isolating, especially when there are no immediate answers or solutions.

About Long COVID

Long COVID is defined as a chronic condition that occurs after SARS-CoV-2 infection and is present for at least 3 months. Long COVID includes a wide range of symptoms or conditions that may improve, worsen, or be ongoing.

Long COVID occurs more often in people who had severe COVID-19 illness, but anyone who gets COVID-19 can experience it, including children.

Most people with Long COVID experience symptoms days after first learning they had COVID-19, but some people who later develop Long COVID do not know when they were infected. People can be reinfected with SARS-CoV-2 multiple times. Each time a person is infected with SARS-CoV-2, they have a risk of developing Long COVID. Long COVID symptoms and conditions can emerge, persist, resolve, and reemerge over weeks and months. These symptoms and conditions can range from mild to severe, may require comprehensive care, and can even result in a disability .

While rates of new cases of Long COVID have decreased since the beginning of the COVID-19 pandemic, it remains a serious public health concern as millions of U.S. adults and children have been affected by Long COVID.

Signs and symptoms

People with Long COVID can have a wide variety of symptoms that can range from mild to severe and may be similar to symptoms from other illnesses. Symptoms can last weeks, months, or years after COVID-19 illness and can emerge, persist, resolve, and reemerge over different lengths of time. Long COVID may not affect everyone the same way. Some people can experience health problems from different types and combinations of symptoms that may:

• Be difficult to recognize or diagnose
• Require comprehensive care
• Result in disability

Fatigue, brain fog, and post-exertional malaise (PEM) are commonly reported symptoms, but more than 200 Long COVID symptoms have been identified.

General symptoms 

• Tiredness or fatigue that interferes with daily life
• Symptoms that get worse after physical or mental effort

  Respiratory and heart symptoms

• Difficulty breathing or shortness of breath
• Fast-beating or pounding heart (also known as heart palpitations)

  Neurological symptoms

• Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
• Sleep problems
• Dizziness when you stand up (lightheadedness)
• Pins-and-needles feelings
• Change in smell or taste
• Depression or anxiety

  Digestive symptoms

• Stomach pain
• Constipation

  Other symptoms

• Joint or muscle pain
• Changes in menstrual cycles

Symptoms that are hard to explain and manage

Some people with Long COVID have symptoms that are hard to explain or difficult to manage. There is no laboratory test that can determine if your unexplained symptoms are due to Long COVID. People with these unexplained symptoms may sometimes even be misunderstood or experience stigma. This can result in a delay in diagnosis and receiving the appropriate care or treatment. Long COVID treatment is focused on managing symptoms, reducing their impact on daily activities, and improving your quality of life.

Talk to your healthcare provider if you are experiencing symptoms that are hard to explain or that persist, or if you think you or your child has Long COVID.

Complications

Some people, especially those who had severe COVID-19, may experience multi-organ effects or autoimmune conditions lasting weeks, months, or even years after COVID-19 illness. Multi-organ effects can involve many body systems, including the heart, lungs, kidneys, skin, and brain. Symptoms for many of these multi-organ complications are similar to commonly reported Long COVID symptoms. As a result of these effects, people who have had COVID-19 may be more likely to develop new or worsening of health conditions such as:

• Heart conditions
• Blood clots
• Neurological conditions

Who is at risk

While anyone who gets COVID-19 can develop Long COVID, studies have shown that some groups of people are more likely to develop Long COVID than others, including (not a comprehensive list):

• Hispanic and Latino people
• People who have experienced more severe COVID-19 illness, especially those who were hospitalized or needed intensive care
• People with underlying health conditions and adults who are 65 or older
• People who did not get a COVID-19 vaccine

Health inequities affect populations at risk for Long COVID

Health inequities from disability , economic, geographic, and other social factors disproportionately affect some groups of people. These inequities can increase the risk of negative health outcomes and impact from Long COVID.

CDC emphasizes core strategies  to lower health risks from COVID-19, including severe outcomes such as hospitalization and death. Preventing severe outcomes from COVID-19 illness helps prevent Long COVID. Steps you can take to protect yourself and others include:

• Staying up to date on COVID-19 vaccination .
• Practicing good hygiene  (practices like handwashing that improve cleanliness)
• Taking steps for cleaner air
• Use precautions to prevent spread
• Seek healthcare promptly for testing and/or treatment if you have risk factors for severe illness ; treatment  may help lower your risk of severe illness

Research shows COVID-19 vaccination  is the best available tool to prevent Long COVID.

Testing and diagnosis

Long COVID is not one illness. There is no laboratory test that can determine if your symptoms or conditions are due to Long COVID. A positive SARS-CoV-2 test is not required for a Long COVID diagnosis. Your healthcare provider considers a diagnosis of Long COVID based on:

• Your health history
• If you had a diagnosis of COVID-19 by a positive test, symptoms, or exposure
• A health examination

Clinical evaluations and results of routine blood tests, chest X-rays, and electrocardiograms may be normal in someone with Long COVID. People experiencing Long COVID should seek care from a healthcare provider to create a personal medical management plan and improve their symptoms and quality of life. Talk to your healthcare provider if you think you or your child has Long COVID.

Similar conditions

Some people experiencing Long COVID symptoms have symptoms similar to those reported by people with myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS)  and other poorly understood chronic illnesses that may occur after other infections. These unexplained symptoms or conditions may be misunderstood by healthcare providers, which can result in a delay in diagnosis and people receiving the appropriate care or treatment.

What CDC is doing

CDC is working with other federal agencies to better understand and address the long-term impacts of Long COVID , who gets Long COVID, and why. CDC supports these goals by:

• Partnering with state and local jurisdictions
• Supporting healthcare providers
• Promoting and conducting research

Studies are in progress to learn more about Long COVID and identify further measures to help prevent Long COVID. CDC and partners use multiple approaches to support and conduct research that estimates:

• How many people experience Long COVID and why
• Which groups of people are disproportionately impacted by Long COVID
• How new variants may affect Long COVID
• The role that COVID-19 vaccination plays in preventing Long COVID

Each approach helps CDC and its partners better understand Long COVID and how healthcare providers can treat or support patients living with these long-term effects. CDC posts data on Long COVID and provides analyses. The most recent CDC data and analyses on Long COVID can be found on the  U.S. Census Bureau’s Household Pulse Survey . CDC will continue to share information with healthcare providers to help them evaluate and manage these conditions.

• The Office of Long COVID Research and Practice (OLC) (HHS)
• Long COVID (Veterans Affairs)
• Coronavirus Resources (Department of Labor)
• RECOVER COVID Initiative

Long COVID Reports

• A Long COVID Definition: A Chronic, Systemic Disease State with Profound Consequences | The National Academies Press
• Long-Term Health Effects of COVID-19: Disability and Function Following SARS-CoV-2 Infection | The National Academies Press
• Implementation of the Government-wide Response to Long COVID (HHS)
• National Research Action Plan (covid.gov)
• Services and Supports for Longer-Term Impacts of COVID-19
• Health+ Long Covid Human-Centered Design Report (HHS)
• Whole Health System Approach to Long COVID (Veterans Affairs)

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Together Against Trafficking in Human Beings

Trafficking in human beings is a crime that should have no place in today’s society. It destroys individuals’ lives by depriving people of their dignity, freedom and fundamental rights. It is often a violent crime committed by organised crime networks.

Facts about trafficking in human beings

37% of the victims of trafficking in the EU are EU citizens, and a significant number of them are trafficked within their own country. However, non-EU victims have increased in recent years and they now outnumber victims with an EU citizenship. The majority of victims in the EU are women and girls who are mainly trafficked for sexual exploitation. The ratio of male victims has more than doubled in the last years.

Around 15% of victims of trafficking in the EU are children.

The most common forms of trafficking in the EU is sexual exploitation and labour exploitation . Both forms of exploitation amount to an equal share of victims. Most traffickers in the EU are EU citizens and often of the same nationality as their victims. More than three quarters of perpetrators are men.

Links with organised crime

This crime brings high profits to criminals and carries with it enormous human, social and economic costs. Trafficking in human beings is often linked with other forms of organised crime such as migrant smuggling, drug trafficking, extortion, money laundering, document fraud, payment card fraud, property crimes, cybercrime and other.

This complex criminal phenomenon continues to be systematically addressed in a wide range of EU policy areas and initiatives from security to migration, justice, equality, fundamental rights, research, development and cooperation, external action and employment to name a few.

Discover the 'End human trafficking. Break the invisible chain' campaign

Learn about EU Anti-trafficking actions

A comprehensive EU approach to fight trafficking in human beings is anchored in the EU Anti-trafficking Directive, and complemented by the EU Strategy on Combatting Trafficking in Human Beings (2021-2025).

The EU Anti-Trafficking Coordinator is responsible for improving coordination and coherence among EU institutions, EU agencies, Member States and international actors, and for developing existing and new EU policies to address Trafficking in Human Beings.

Part of the mandate of the EU Anti-Trafficking Coordinator is to foster cooperation and policy coherence, including the EU Networks of the National Rapporteurs and Equivalent Mechanisms, the EU Civil Society Platform and the cooperation with the EU Agencies.

This section provides comprehensive information on how each EU country, tackles, prevents and identifies instances of trafficking in human beings.

Recent calls for proposals and EU projects and Funding for projects addressing trafficking in human beings are presented.

This section provides an overview of relevant publications and studies on EU anti-trafficking actions.

News on combatting trafficking

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