An Impassioned Debate: An Overview of the Death Penalty in America

(Updated June 26, 2008)

In this article:
The role of the courts
Lethal injection and the Baze case
Child rape and the Kennedy case
The history of the death penalty
The death penalty worldwide

Few public policy issues have inflamed passions as consistently and as strongly as the debate over capital punishment. Religious communities have been deeply involved on both sides of the issue, drawing on teachings and traditions that define justice and the dignity of human life. The debate over the death penalty has been complicated in recent years by such concerns as the fairness of the criminal justice system, the role of doctors in carrying out executions, and the possibility of reform and rehabilitation among death row inmates.

The debate over capital punishment has been heating up, prompted by two high-profile Supreme Court cases. The first case, Baze v. Rees, tested the constitutionality of the most commonly used form of lethal injection. In a 7-2 decision handed down on April 16, 2008, the court ruled that the method of lethal injection used in almost all states that have death penalty statutes does not violate the U.S. Constitution’s Eighth Amendment prohibition on cruel and unusual punishment. (See Lethal Injection on Trial: An Analysis of the Arguments Before the Supreme Court in Baze v. Rees.)

The second case, Kennedy v. Louisiana, involved a constitutional challenge to a statute that allows the imposition of capital punishment for a person convicted of raping a child under age 12. In a 5-4 decision issued on June 25, 2008, the court invalidated the statute on the ground that the death penalty is an unconstitutionally severe penalty for crimes that do not result in the victim’s death. (See Q&A: Supreme Court Considers New Case on Capital Punishment.)

While both of these cases are important, the Baze case is the more significant of the two since it applies to many more situations: Only five states besides Louisiana have statutes authorizing the death penalty for child rape, while lethal injection is the method of execution used by the federal government and by all but one of the 37 states with death penalty statutes. Indeed, merely agreeing to hear the Baze case put the use of lethal injection in a state of limbo, prompting states to delay all scheduled executions until a ruling was handed down.

Opponents’ desire to end capital punishment is driven by different arguments, including the belief that the government should not be in the business of taking human life and the concern that the death penalty is inherently unfair because it is disproportionately used on minority and lower-income felons. On a more practical level, many opponents of the death penalty contend that it does not deter violent crime. And even if it did, they argue, profound flaws in the criminal justice system ensure that the government cannot be confident that each person who goes to the death chamber is actually guilty of the crime for which he or she has been convicted. Indeed, they point out, the development of sophisticated DNA testing has, since 1989, resulted in the exoneration of hundreds of inmates – including 18 on death row.

Many supporters of capital punishment, on the other hand, believe some crimes are so brutal and heinous that execution is the only sentence that can ensure justice. Supporters also point to several recent statistical studies that they say show that capital punishment, even though rarely used, does in fact deter violent crime. Moreover, supporters say, modern technology (such as the use of ballistics and DNA evidence) and the lengthy appeals process in most capital cases make it nearly impossible to mistakenly send an innocent person to the death chamber.

Death penalty supporters also point out that a solid majority of the American people have long favored the use of capital punishment. Recent support for the death penalty reached its peak in the late 1980s and early 1990s, when, according to Gallup polls, the number of people in favor of executing convicted murderers climbed as high as 80 percent. Today, 62 percent of the public supports capital punishment for people convicted of murder, according to a 2007 poll by the Pew Forum on Religion & Public Life and the Pew Research Center for the People & the Press.

Although religious groups in the U.S. have helped to lead the fight against the death penalty, not all religious bodies oppose its use. (See Religious Groups’ Official Positions on Capital Punishment.) For instance, although the Catholic Church and most mainline Protestant denominations, such as United Methodists and Episcopalians, officially oppose capital punishment, many evangelical churches, including Southern Baptists, support the death penalty.

The Role of the Courts

While capital punishment laws in the U.S. fall under the states’ purview, the Supreme Court has played a major role in shaping the use of the death penalty in this country. In the 1930s, for example, the Supreme Court intervened on a number of occasions to overturn death sentences it believed could have been the result of racial discrimination. And in a landmark 1972 decision, Furman v. Georgia, the high court ruled 5-4 that the death penalty, as it was being applied at the time by the states, violated both the Eighth Amendment’s prohibition of cruel and unusual punishment and the 14th Amendment’s guarantee of equal protection under the law.

The majority decision in Furman was highly fractured, and each of the five justices issued a separate opinion. Still, the general thrust of the opinions was that existing state death penalty statutes were too arbitrary to guarantee the fair and uniform application of capital punishment. One of the five justices, Potter Stewart, famously wrote that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” More specifically, the court in Furman found that state-mandated instructions to juries during the sentencing phase in capital punishment cases were too vague and inevitably led to vastly different results, even in cases involving the same type of crime.

As a result of the Furman decision, all death penalty statutes were effectively overturned, and 633 death row inmates in 32 states had their sentences commuted to life in prison. But while the court had essentially invalidated all death penalty statutes, it did not rule that capital punishment itself was unconstitutional. As a result, many state legislatures redrafted their laws to address the criticisms contained in the Furman decision. By 1976, 35 states had new capital punishment laws on the books, and more than 500 inmates were on death row.

Following the Furman ruling and the subsequent enactment of new state death penalty statutes, many thought it was a question of when, rather than if, the court would revisit the issue. That opportunity arrived just four years after Furman in a series of five related decisions involving different state statutes. In these decisions, most significantly Gregg v. Georgia (1976), the court ruled that death penalty sentencing statutes must contain a set of objective criteria to guide judges and juries in determining whether a death sentence is warranted. In Gregg and two other cases, the court ruled that death penalty statutes in Florida, Georgia and Texas had met these criteria and thus were constitutional. However, the court struck down two other statutes (in North Carolina and Louisiana) that automatically imposed the death penalty when someone was convicted of first-degree murder. (These are known as mandatory death sentencing laws.) In these two cases, the court ruled that some discretion must be left to judges and juries to determine whether the death penalty is appropriate.

Since 1976, more than 1,000 inmates have been executed. At the same time, there also have been a number of important high court decisions that have imposed new limits on capital punishment. In Atkins v. Virginia (2002), for instance, the Supreme Court ruled that states could not execute mentally disabled offenders. Three years later, in Roper v. Simmons, the court barred the use of the death penalty for juvenile offenders.

Lethal Injection and the Baze Case

In most states, the process of executing an inmate by lethal injection involves the use of a three-drug combination. First, the inmate is rendered unconscious with sodium thiopental, a sedative used as an anesthetic. Next, pancuronium bromide is used to induce paralysis throughout the body. Finally, sodium chloride is injected to stop the heart from beating.

Ironically, lethal injection was developed in the late 1970s as a more humane alternative to electrocution, which had been the predominant method of execution in the United States for more than 70 years. In the ensuing 30 years, lethal injection has become the sole method of execution for the federal government and for all but one of the 37 states that currently have death penalty statutes; only Nebraska still uses the electric chair.

Opponents of lethal injection argue that far from being humane, the procedure actually can cause excruciating pain. In particular, they say, the anesthetic can wear off prior to death, making inmates conscious and susceptible to pain when the third, heart-stopping drug is injected. At the same time, they argue, an inmate who has regained consciousness may not be able to alert authorities to any pain or suffering due to the total paralysis caused by the second drug.

This allegation – that the current, three-drug method of lethal injection can cause inmates significant levels of pain – was at the heart of the Baze case. Ralph Baze and Thomas C. Bowling, the two Kentucky death row inmates who initiated the litigation in Baze, argued that the high court in their state failed to adequately consider the risk of “significant pain” when it ruled in 2006 that the state’s lethal injection protocol did not violate the Eighth Amendment.

But the U.S. Supreme Court rejected this argument, contending that the risk that Kentucky’s lethal injection protocol might cause substantial pain was not great enough to trigger a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual” under the Eighth Amendment, Chief Justice John Roberts wrote in a plurality opinion.

In order to establish an “objectively intolerable risk” of pain, those challenging lethal injection or another method of execution on Eighth Amendment grounds need to show that the method in question creates a “demonstrated risk of severe pain,” Chief Justice Roberts wrote. Baze and Bowling failed to do this, he added. Furthermore, Chief Justice Roberts wrote, challengers must show that there are feasible alternative methods that significantly reduce risk of pain.

Although seven justices voted to uphold Kentucky’s lethal injection protocol, there was little agreement among those in the majority. Six of the seven justices wrote their own opinions – an unusual occurrence. And the opinion written for the court by Chief Justice Roberts was signed by only two other justices: Anthony Kennedy and Samuel Alito. Furthermore, one of the seven, Justice John Paul Stevens, wrote that he had voted with the majority only out of respect for the court’s prior precedents upholding the death penalty. Indeed, in his concurring opinion in the Baze case, Justice Stevens, for the first time, called for the abolition of capital punishment in the United States.

The immediate impact of the Baze ruling is that the nationwide moratorium on capital punishment – in force since late 2007 – has ended. In some states, scheduled executions will almost certainly move forward in the coming months. Longer term, the tough standards laid out by Chief Justice Roberts in the decision will make it difficult for death row inmates and death penalty opponents to challenge lethal injection or other methods of capital punishment on Eighth Amendment grounds in the future.

Child Rape and the Kennedy Case

The Supreme Court’s most recent death penalty case has its roots in a 1995 Louisiana law that allows for the imposition of the death sentence in cases of rape of a child under age 12. Five other states – Texas, Georgia, South Carolina, Montana and Oklahoma – subsequently enacted laws making child rape a capital crime, although these statutes, unlike the Louisiana law, allow a death sentence for child rape only in cases where the convicted child rapist already has a prior conviction for the same crime. So far, only Louisiana has actually handed down a death sentence for child rape – to two inmates, including Patrick Kennedy, who appealed his death sentence to the Supreme Court after being convicted in 2004 of raping his 8-year-old stepdaughter .

In his appeal, Patrick Kennedy argued that the Louisiana law was unconstitutional under an important Supreme Court ruling, Coker v. Georgia (1977), which held that Georgia had violated the Eighth Amendment by sentencing the rapist of an adult woman to death. According to the Coker decision, sentencing someone to death for a crime that does not kill the victim is an “excessive penalty.”

In response to Patrick Kennedy’s argument, Louisiana claimed that its law was valid under the Coker ruling because that decision applied only to adult rape. According to Louisiana, the Coker decision left open the possibility that states may sentence people to death for crimes that do not result in death but are more reprehensible than the rape of an adult. Louisiana claimed that its law was therefore constitutional because it did not apply to all rapes but only to the most atrocious form of rape, the rape of a child.

On June 25, 2008, the high court issued a 5-4 decision requiring the Louisiana courts to find a punishment for Patrick Kennedy that is less severe than death because, according to a majority of the court, death is an unconstitutionally severe penalty for the rape of a child.

Justice Kennedy, writing for the majority, explained that there are two factors to consider in determining whether the Louisiana law is constitutional: (1) whether there is a national consensus for capital punishment for child rape, and (2) whether, in the court’s judgment, the death penalty is a proportional punishment for child rape.

Because only six states currently authorize the death penalty for child rape, and because no state besides Louisiana has sentenced someone to death for child rape since 1964, Justice Kennedy found that the states generally agree that the death penalty should not apply to child rape. Moreover, Justice Kennedy wrote, the court’s prior cases confirm that the death penalty should be reserved for cases involving the death of the victim. Given these two factors, the majority held that the government may not sentence people to death for raping children, no matter how brutal or harmful the crime.

In a dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas, declared that the majority had erred in limiting its analysis to these two factors. According to the dissent, the majority should also have considered, among other things, that the “worst child rapists exhibit the epitome of moral depravity” and that the court had previously found that the Eighth Amendment permits states to create “new capital punishment statutes to meet new problems.” Furthermore, the dissent argued, even if the majority was right in limiting its analysis to these two factors, the majority decision was still wrong because it incorrectly assessed each factor.

The Kennedy decision has a direct legal effect only on the six states that have statutes permitting the death penalty for child rape. These statutes are now invalid. But the decision also signifies a larger trend in the court’s death penalty jurisprudence. Over the last few years, when the court has sided with opponents of the death penalty, the decisions have carved out classes of activities and individuals as ineligible for the death penalty, such as child rapists in the Kennedy decision as well as the mentally disabled in Atkins and juveniles in Roper. These cases suggest that for the opponents of the death penalty to be successful in their efforts, they will need to focus on categories of conduct and persons rather than on the procedures by which states sentence people to death.

The History of the Death Penalty

Capital punishment has a long and nearly uninterrupted history in the United States. Indeed, in the 18th and 19th centuries, the death penalty was used to punish a wide array of crimes, from murder and rape to horse stealing and arson.

The movement to abolish capital punishment has an equally long history. From the earliest days of European settlement in North America, Quakers and other religious and secular groups have worked to end, or at least limit, the use of the death penalty. And, in spite of general support for executions, abolitionists have had their share of successes. In 1847, for instance, Michigan became the first state to effectively end capital punishment. In the ensuing 160 years, 12 other states and the District of Columbia followed suit.

There also has been a decline in the overall number of executions nationwide even as the country’s population has steadily increased. For instance, according to the Death Penalty Information Center, there were 1,670 executions in the 1930s, 1,289 in the 1940s, 715 in the 1950s and 192 in the 1960s. As noted earlier, there have been just over 1,000 executions since 1976, when the Supreme Court ruled that states could once again employ the death penalty.

There were only 42 executions in 2007, in part as a result of the Baze-related moratorium, which is the lowest number since capital punishment was reinstated in 1976. Another milestone also occurred in 2007, when on Dec. 17, New Jersey Gov. Jon Corzine signed legislation abolishing the death penalty, making the Garden State the first and so far only one to repeal a capital punishment law since the 1976 reinstatement.

Opposition to the death penalty also has helped to change the way people are executed. For instance, until the 20th century, most convicted criminals were hanged, often in public. The last 100 years have seen an end to public executions as well as the development of new methods that aim to be more humane, namely the electric chair and, most recently, lethal injection.

A recent source of opposition to the death penalty has come from many of the nation’s physicians. According to the American Medical Association, in 15 states, laws require medical doctors to at least be present during an execution because lethal injection is a medical procedure. At the same time, the AMA has stated that it is a violation of medical ethics for doctors to participate in, or even be present at, executions because physicians are supposed to heal, not hurt, patients. A 2001 survey published in the Annals of Internal Medicine found that fewer than one-in-five physicians said they would be willing to administer lethal drugs for an execution.

Physician opposition has made it difficult for some states to find adequate medical personnel to conduct executions. In California, for instance, a scheduled 2006 execution of convicted murderer and rapist Michael Morales was stayed after two anesthesiologists who originally had agreed to be present changed their minds. In other states, inmates have been forced to endure longer than normal executions due to mistakes by prison personnel who did not have adequate medical training.

The Death Penalty Worldwide

Many countries in the developing world, including China, India and a substantial number of nations in the Middle East and Africa, continue to use the death penalty, but few industrialized countries still employ the practice. Indeed, of the major industrial democracies, only the United States, Japan and South Korea still use capital punishment. No Western European or Central European countries execute felons, regardless of the severity of the crime. The same is true in Canada, Mexico, Australia and much of Southern Africa. Moreover, many countries that still have death penalty laws on the books, including Russia and Brazil, have stopped executing inmates.

In Europe and elsewhere, the worldwide abolition of the death penalty has become a major human rights issue, and countries like the United States are routinely criticized for continuing to execute inmates. Since criminal justice issues largely rest with each individual state in the U.S., executions likely will continue to take place unless the Supreme Court rules that capital punishment is unconstitutional, which most legal experts believe is unlikely in the near future. Likewise, the debate over the death penalty itself also will go on, as both supporters and opponents continue to grapple with the moral, legal and practical aspects of this complex issue.
This report was written by David Masci, Senior Research Fellow, and Jesse Merriam, Research Associate, Pew Forum on Religion & Public Life

Photo credit: Ken Light/Corbis