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‌the end of the death penalty.

‌‘Unintended consequences’ and the legacy of Furman v. Georgia

More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared overnight.

“Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact.” Carol Steiker

But Furman didn’t abolish capital punishment for very long. Four years later, Gregg v. Georgia and several companion cases made clear that governments could impose capital punishment under certain conditions. Those decisions were a response to the backlash sparked by Furman , which appeared to revive support for a practice that had been in sharp decline for years. Today, 27 states in the U.S., as well as the federal government, retain the death penalty, and as of April 2022, one source reported that there were 2,414 people on death row across the country. Despite what many would have predicted in 1972, when the Furman decision suggested the U.S. would become an international leader in eliminating the death penalty, today it’s the only Western democracy that still imposes it. 

Still, while the death penalty persists in the U.S., it’s not exactly thriving. Indeed, it’s once again “withering” across the country, says Carol S. Steiker ’86 , the Henry J. Friendly Professor of Law at Harvard Law School, who has taught Capital Punishment in America at the school since 1993. Though Furman (and its subsequent overruling) helped fuel the death penalty’s revival, it also set in motion a long series of events that may ultimately eliminate capital punishment in the United States, Steiker says.

“ Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact,” says Steiker, who is co-author, with her brother, Jordan Steiker ’88, of “Courting Death: The Supreme Court and Capital Punishment” (Harvard University Press, 2016) and co-editor, also with him, of “Comparative Capital Punishment” (Edward Elgar, 2019).

“ Furman was a remarkable intervention,” says Jordan Steiker, a professor at the law school at the University of Texas at Austin and co-director of its Capital Punishment Center. “Even though it was quite short-lived in suspending the death penalty in the U.S., it completely changed its course because it essentially inspired or required states to rethink how they were doing capital punishment. And ultimately, the practice of the death penalty changed substantially over time.”

Given the greatly heightened public attention to the power of the Supreme Court today, the 50th anniversary of Furman is an opportunity to reexamine not just the history of the death penalty but the appropriate role of the Court in American life, Carol Steiker and others believe.

“Right now a lot of people are wondering how much of a role we want the courts to play in deciding what rights are guaranteed by the Constitution, and Furman v. Georgia is a unique example of when the Court struck down a policy that was widely prevalent throughout the states for violating the Constitution,” says Gene Young Chang ’24, who has been studying the death penalty with Steiker since he was a freshman in her Harvard College course The American Death Penalty: Morality, Law, and Politics. Furman , he says, “teaches us things about the role of the courts in a democratic society, the scope of constitutional rights, and the proper method for defining those rights.” 

Categorical abolition of the death penalty across the nation is unlikely without another Furman v. Georgia , “what you might call Furman II, which is obviously not forthcoming from this Court or anytime in the foreseeable future,” Carol Steiker says. Instead, the future of the death penalty, she says, is being played out at the local level, in “a kind of guerrilla war going on county by county, state by state, with the election of progressive prosecutors who do not seek the death penalty, state legislative activity, and state constitutional litigation under state constitutions.”

The final death knell for capital punishment will likely depend on a very different Supreme Court from the one we have today, she says. “But at that point,” given other trends in the country, “it may be more like a coup de grâce rather than what it was at the time of Furman .”

History of a ‘remarkable intervention’

In the 1960s, due to a campaign by the NAACP Legal Defense and Educational Fund to challenge its constitutionality in cases across the country, capital punishment was in decline. Indeed, no one was executed in the five years before Furman , as states waited to see what the high court would rule. In 1971, the Supreme Court rejected a due process challenge to capital punishment. But Furman , argued a year later, relied on the Eighth Amendment: The LDF team argued that the arbitrary application of capital punishment — jurors, often with no guidance, had complete discretion on when to impose it — was a cruel and unusual punishment.

”The Supreme Court intervention [in Furman] not only didn’t kill the death penalty but actually made it stronger when it was reinstated.” Carol Steiker

The Supreme Court agreed, 5-4, although the justices issued nine separate opinions, which was very unusual, as Carol Steiker notes. Justice Thurgood Marshall (for whom both Steikers later clerked) and Justice William J. Brennan Jr. LL.B. ’31 maintained that the death penalty was unconstitutional per se. Justice William O. Douglas was troubled by its discriminatory application, given overwhelming evidence that it was more often imposed on Black defendants, the poor, and the politically unpopular. Justices Potter Stewart and Byron White were troubled by its arbitrary application under state statutes, with Justice Stewart famously writing, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He concluded that the Constitution could not “permit this unique penalty to be so wantonly and so freakishly imposed.” 

But abolitionists’ hopes didn’t last long. Soon after Furman, 35 states rewrote their laws to try to comply with the Court’s ruling. In 1976, in a group of consolidated cases known as Gregg v. Georgia , the Supreme Court held that the death penalty was not per se unconstitutional. It ruled the punishment could be revived if state laws provided an objective process for deciding when to apply it and gave sufficient discretion to juries to determine whether it was appropriate. However, mandatory death penalties were unconstitutional, it held, even though some states believed that mandatory penalties were necessary to eliminate sentencing discretion.

Furman created an enormous backlash, the Steikers explain, so that capital punishment — which was becoming less and less popular in public opinion — resurged. It became “more of a wedge issue, part of the tough-on-crime political strategy of [President Richard] Nixon, and political entrepreneurs exploited the resentment at the Supreme Court’s intervention in the death penalty,” says Jordan Steiker, who has frequently taught at Harvard Law School, most recently in 2018 as the Touroff-Glueck Visiting Professor of Law and Psychiatry. “In the short term, the death penalty became more vigorous, there were more death sentences, and by the 1990s, there were many more executions than we were having pre- Furman .”

At least initially, then, “the Supreme Court intervention [in Furman ] not only didn’t kill the death penalty but actually made it stronger when it was reinstated,” says Carol Steiker, something she sees as an “unintended and unforeseen consequence” of the case.

Birth of the capital defense bar

But there was another unforeseen consequence of Furman , one that Jordan Steiker describes as “probably more important and long-lasting” — the birth of a large and highly skilled capital defense bar. 

With the resurrection of the death penalty, new, sophisticated institutions were created and staffed by passionate and skilled anti-capital lawyers: state offices for capital representation at the trial, appellate, and post-conviction levels; capital habeas corpus units within state and federal public defenders’ offices; and numerous non-governmental nonprofits, such as Bryan Stevenson ’85’s Equal Justice Initiative. Today, “we have a whole legion of much more focused and talented advocates working on behalf of people facing capital charges or sentenced to death,” says Jordan Steiker.

Capital litigation has become far more complex, and the costs have soared. This has helped persuade many local prosecutors to avoid seeking the death penalty.

With these developments, as well as the Supreme Court’s imposition of special procedural requirements for cases involving the death penalty, capital litigation has become far more complex, and the costs have soared. “The constitutional decisions post- Furman have not imposed the most rigorous scrutiny of capital practices,” says Jordan Steiker, “but they have produced institutional actors who have made the death penalty much less attractive as a practical matter because to do it reasonably well is just exorbitantly expensive.” This has helped persuade many local prosecutors to avoid seeking the death penalty and has led to an “extraordinary decline in capital proceedings,” he says.

The current Supreme Court has signaled greater willingness to affirm capital sentences than in the recent past, says Jordan Steiker, and some jurisdictions have embraced that signal. The Oklahoma Court of Criminal Appeals had scheduled nearly one execution a month between 2022 and 2024 (although at the request of the new attorney general, the pace has now been slowed to no more than one every 60 days). In Texas, on the other hand, two death sentences were imposed in 2022, which contrasts starkly with the 1990s, when Texas juries were handing out more than 40 a year, Jordan Steiker says. “The practice on the ground is withering in part because of the institutions built in response to Furman ,” he says.

Local prosecutors and state courts take over

Other factors besides cost have decreased the public’s appetite for the death penalty, including media attention to, and public awareness of, the number of innocent people sentenced to death. Since 1973, at least 190 people who were wrongly convicted and sentenced to death have been exonerated, according to the Death Penalty Information Center. For that and other reasons, including declining crime rates, there has been a dramatic decline in public support for the death penalty over the past 20 years. Though the 2021 Gallup poll found that 54% of respondents continued to support it, that is the lowest number in the annual poll since 1972. 

Erica Medley LL.M. ’22 was a prosecutor in the U.S. Air Force before matriculating at HLS. When she was a schoolgirl, in Oregon, two of her friends were raped and murdered by a neighbor, Ward Weaver III. When Weaver received two life sentences, “It made no sense,” Medley recalls. “I thought he should have gotten the death penalty.” When Medley enrolled in Carol Steiker’s class on capital punishment in fall 2021, she was among the very few students who supported the death penalty, according to an informal online class poll. 

But before the first class, Medley did a complete reversal sparked by reading the course materials. “I was so overwhelmed reading everything that I did a 180. It was that fast,” says Medley, who was persuaded by the evidence of the racially disparate impact of the death penalty, its exorbitant expense compared with that of prison sentences, the number of people on death row who turn out to be innocent, and the fact that no other peer nations still impose the penalty.

The shifting demographics of urban counties are also having an effect on the use of the death penalty across the country since such counties are often the only places that can afford to prosecute many capital cases, says Jordan Steiker. As these counties become less politically conservative, they are increasingly controlled by “less zealous prosecutors,” he says. Harris County, Texas, which includes Houston, and Dallas County were “longstanding conservative-controlled political entities, and now they’re not. Now many prosecutors run not on the death penalty but away from the death penalty. That’s a very significant shift.” 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate.” Jordan Steiker

And, just as the resurgence of the death penalty in the 1980s and ’90s paralleled public reaction to a crime surge, a drop in death penalty cases mirrors what has generally been a long-term decline in the homicide rate, as well as public concerns about mass incarceration and racial inequities in the criminal justice system, says Carol Steiker, faculty sponsor of the Capital Punishment Clinic, through which Harvard Law students are placed in externships at capital defense organizations around the country.

And the past 16 years have seen a growing legislative trend toward abolishing the death penalty. In 2007, 38 states retained it; today, there are only 27. In 2021, Virginia, which has executed more people than any other state, became the first Southern state to abolish capital punishment. It was preceded by legislative repeals in Colorado, New Jersey, Illinois, and Connecticut, among other states. In Washington state, the Supreme Court found the death penalty unconstitutional under the state constitution because it was used in an arbitrary and racially biased manner. 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate,” says Jordan Steiker. 

“I think in the short term we’ll end up having more executions because of the Supreme Court’s reluctance to impede them, even though executions have been in as much of a decline as death sentences,” he adds. But with fewer capital sentences taking place, “death row has been shrinking considerably, and at some point we’ll have a death row that seems inconsequential as part of our criminal justice system.” 

Furman’s ultimate impact?

In the end, then, was Furman a victory for those who brought the case? “That’s a good question,” says Jordan Steiker. “There’s one point of view that I’m sympathetic to, that says that Furman revived a practice that was dying on the ground, and had there been no intervention, we might not have had a revival and then a second decline.”

On the other hand, when Michael Meltsner, one of the lawyers on the LDF team who brought Furman , speaks to Carol Steiker’s capital punishment class each year, he emphasizes that there were 629 people on death row in 1972 whose lives were saved by Furman.

“So in that sense, it was a tremendous victory,” says Carol Steiker. “It was a reset moment.”

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Most americans favor the death penalty despite concerns about its administration, 78% say there is some risk of innocent people being put to death.

Pew Research Center conducted this study to better understand Americans’ views about the death penalty. For this analysis, we surveyed 5,109 U.S. adults from April 5 to 11, 2021. Everyone who took part in this survey is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about the ATP’s methodology .

Here are the questions used for the report, along with responses, and its methodology .

The use of the death penalty is gradually disappearing in the United States. Last year, in part because of the coronavirus outbreak, fewer people were executed than in any year in nearly three decades .

Chart shows majority of Americans favor death penalty, but nearly eight-in-ten see ‘some risk’ of executing the innocent

Yet the death penalty for people convicted of murder continues to draw support from a majority of Americans despite widespread doubts about its administration, fairness and whether it deters serious crimes.

More Americans favor than oppose the death penalty: 60% of U.S. adults favor the death penalty for people convicted of murder, including 27% who strongly favor it. About four-in-ten (39%) oppose the death penalty, with 15% strongly opposed, according to a new Pew Research Center survey.

The survey, conducted April 5-11 among 5,109 U.S. adults on the Center’s American Trends Panel, finds that support for the death penalty is 5 percentage points lower than it was in August 2020, when 65% said they favored the death penalty for people convicted of murder.

Chart shows since 2019, modest changes in views of the death penalty

While public support for the death penalty has changed only modestly in recent years, support for the death penalty declined substantially between the late 1990s and the 2010s. (See “Death penalty draws more Americans’ support online than in telephone surveys” for more on long-term measures and the challenge of comparing views across different survey modes.)

Large shares of Americans express concerns over how the death penalty is administered and are skeptical about whether it deters people from committing serious crimes.

Nearly eight-in-ten (78%) say there is some risk that an innocent person will be put to death, while only 21% think there are adequate safeguards in place to prevent that from happening. Only 30% of death penalty supporters – and just 6% of opponents – say adequate safeguards exist to prevent innocent people from being executed.

A majority of Americans (56%) say Black people are more likely than White people to be sentenced to the death penalty for being convicted of serious crimes. This view is particularly widespread among Black adults: 85% of Black adults say Black people are more likely than Whites to receive the death penalty for being convicted of similar crimes (61% of Hispanic adults and 49% of White adults say this).

Moreover, more than six-in-ten Americans (63%), including about half of death penalty supporters (48%), say the death penalty does not deter people from committing serious crimes.

Yet support for the death penalty is strongly associated with a belief that when someone commits murder, the death penalty is morally justified. Among the public overall, 64% say the death penalty is morally justified in cases of murder, while 33% say it is not justified. An overwhelming share of death penalty supporters (90%) say it is morally justified under such circumstances, compared with 25% of death penalty opponents.

Chart shows greater support for death penalty in online panel surveys than telephone surveys

The data in the most recent survey, collected from Pew Research Center’s online American Trends Panel (ATP) , finds that 60% of Americans favor the death penalty for persons convicted of murder. Over four ATP surveys conducted since September 2019, there have been relatively modest shifts in these views – from a low of 60% seen in the most recent survey to a high of 65% seen in September 2019 and August 2020.

In Pew Research Center phone surveys conducted between September 2019 and August 2020 (with field periods nearly identical to the online surveys), support for the death penalty was significantly lower: 55% favored the death penalty in September 2019, 53% in January 2020 and 52% in August 2020. The consistency of this difference points to substantial mode effects on this question. As a result, survey results from recent online surveys are not directly comparable with past years’ telephone survey trends. A post accompanying this report provides further detail and analysis of the mode differences seen on this question. And for more on mode effects and the transition from telephone surveys to online panel surveys, see “What our transition to online polling means for decades of phone survey trends” and “Trends are a cornerstone of public opinion research. How do we continue to track changes in public opinion when there’s a shift in survey mode?”

Partisanship continues to be a major factor in support for the death penalty and opinions about its administration. Just over three-quarters of Republicans and independents who lean toward the Republican Party (77%) say they favor the death penalty for persons convicted of murder, including 40% who strongly favor it.

Democrats and Democratic leaners are more divided on this issue: 46% favor the death penalty, while 53% are opposed. About a quarter of Democrats (23%) strongly oppose the death penalty, compared with 17% who strongly favor it.

Over the past two years, the share of Republicans who say they favor the death penalty for persons convicted of murder has decreased slightly – by 7 percentage points – while the share of Democrats who say this is essentially unchanged (46% today vs. 49% in 2019).

Chart shows partisan differences in views of the death penalty – especially on racial disparities in sentencing

Republicans and Democrats also differ over whether the death penalty is morally justified, whether it acts as a deterrent to serious crime and whether adequate safeguards exist to ensure that no innocent person is put to death. Republicans are 29 percentage points more likely than Democrats to say the death penalty is morally justified, 28 points more likely to say it deters serious crimes, and 19 points more likely to say that adequate safeguards exist.

But the widest partisan divide – wider than differences in opinions about the death penalty itself – is over whether White people and Black people are equally likely to be sentenced to the death penalty for committing similar crimes.

About seven-in-ten Republicans (72%) say that White people and Black people are equally likely to be sentenced to death for the same types of crimes. Only 15% of Democrats say this. More than eight-in-ten Democrats (83%) instead say that Black people are more likely than White people to be sentenced to the death penalty for committing similar crimes.

Differing views of death penalty by race and ethnicity, education, ideology

There are wide ideological differences within both parties on this issue. Among Democrats, a 55% majority of conservatives and moderates favor the death penalty, a position held by just 36% of liberal Democrats (64% of liberal Democrats oppose the death penalty). A third of liberal Democrats strongly oppose the death penalty, compared with just 14% of conservatives and moderates.

Chart shows ideological divides in views of the death penalty, particularly among Democrats

While conservative Republicans are more likely to express support for the death penalty than moderate and liberal Republicans, clear majorities of both groups favor the death penalty (82% of conservative Republicans and 68% of moderate and liberal Republicans).

As in the past, support for the death penalty differs across racial and ethnic groups. Majorities of White (63%), Asian (63%) and Hispanic adults (56%) favor the death penalty for persons convicted of murder. Black adults are evenly divided: 49% favor the death penalty, while an identical share oppose it.

Support for the death penalty also varies across age groups. About half of those ages 18 to 29 (51%) favor the death penalty, compared with about six-in-ten adults ages 30 to 49 (58%) and those 65 and older (60%). Adults ages 50 to 64 are most supportive of the death penalty, with 69% in favor.

There are differences in attitudes by education, as well. Nearly seven-in-ten adults (68%) who have not attended college favor the death penalty, as do 63% of those who have some college experience but no degree.

Chart shows non-college White, Black and Hispanic adults more supportive of death penalty

About half of those with four-year undergraduate degrees but no postgraduate experience (49%) support the death penalty. Among those with postgraduate degrees, a larger share say they oppose (55%) than favor (44%) the death penalty.

The divide in support for the death penalty between those with and without college degrees is seen across racial and ethnic groups, though the size of this gap varies. A large majority of White adults without college degrees (72%) favor the death penalty, compared with about half (47%) of White adults who have degrees. Among Black adults, 53% of those without college degrees favor the death penalty, compared with 34% of those with college degrees. And while a majority of Hispanic adults without college degrees (58%) say they favor the death penalty, a smaller share (47%) of those with college degrees say this.

Intraparty differences in support for the death penalty

Republicans are consistently more likely than Democrats to favor the death penalty, though there are divisions within each party by age as well as by race and ethnicity.

Republicans ages 18 to 34 are less likely than other Republicans to say they favor the death penalty. Just over six-in-ten Republicans in this age group (64%) say this, compared with about eight-in-ten Republicans ages 35 and older.

Chart shows partisan gap in views of death penalty is widest among adults 65 and older

Among Democrats, adults ages 50 to 64 are much more likely than adults in other age groups to favor the death penalty. A 58% majority of 50- to 64-year-old Democrats favor the death penalty, compared with 47% of those ages 35 to 49 and about four-in-ten Democrats who are 18 to 34 or 65 and older.

Overall, White adults are more likely to favor the death penalty than Black or Hispanic adults, while White and Asian American adults are equally likely to favor the death penalty. However, White Democrats are less likely to favor the death penalty than Black, Hispanic or Asian Democrats. About half of Hispanic (53%), Asian (53%) and Black (48%) Democrats favor the death penalty, compared with 42% of White Democrats.

About eight-in-ten White Republicans favor the death penalty, as do about seven-in-ten Hispanic Republicans (69%).

Differences by race and ethnicity, education over whether there are racial disparities in death penalty sentencing

There are substantial demographic differences in views of whether death sentencing is applied fairly across racial groups. While 85% of Black adults say Black people are more likely than White people to be sentenced to death for committing similar crimes, a narrower majority of Hispanic adults (61%) and about half of White adults (49%) say the same. People with four-year college degrees (68%) also are more likely than those who have not completed college (50%) to say that Black people and White people are treated differently when it comes to the death penalty.

Chart shows overwhelming majority of Black adults see racial disparities in death penalty sentencing, as do a smaller majority of Hispanic adults; White adults are divided

About eight-in-ten Democrats (83%), including fully 94% of liberal Democrats and three-quarters of conservative and moderate Democrats, say Black people are more likely than White people to be sentenced to death for committing the same type of crime – a view shared by just 25% of Republicans (18% of conservative Republicans and 38% of moderate and liberal Republicans).

Across educational and racial or ethnic groups, majorities say that the death penalty does not deter serious crimes, although there are differences in how widely this view is held. About seven-in-ten (69%) of those with college degrees say this, as do about six-in-ten (59%) of those without college degrees. About seven-in-ten Black adults (72%) and narrower majorities of White (62%) and Hispanic (63%) adults say the same. Asian American adults are more divided, with half saying the death penalty deters serious crimes and a similar share (49%) saying it does not.

Among Republicans, a narrow majority of conservative Republicans (56%) say the death penalty does deter serious crimes, while a similar share of moderate and liberal Republicans (57%) say it does not.

A large majority of liberal Democrats (82%) and a smaller, though still substantial, majority of conservative and moderate Democrats (70%) say the death penalty does not deter serious crimes. But Democrats are divided over whether the death penalty is morally justified. A majority of conservative and moderate Democrats (57%) say that a death sentence is morally justified when someone commits a crime like murder, compared with fewer than half of liberal Democrats (44%).

There is widespread agreement on one topic related to the death penalty: Nearly eight-in-ten (78%) say that there is some risk an innocent person will be put to death, including large majorities among various racial or ethnic, educational, and even ideological groups. For example, about two-thirds of conservative Republicans (65%) say this – compared with 34% who say there are adequate safeguards to ensure that no innocent person will be executed – despite conservative Republicans expressing quite favorable attitudes toward the death penalty on other questions.

Overwhelming share of death penalty supporters say it is morally justified

Those who favor the death penalty consistently express more favorable attitudes regarding specific aspects of the death penalty than those who oppose it.

Chart shows support for death penalty is strongly associated with belief that it is morally justified for crimes like murder

For instance, nine-in-ten of those who favor the death penalty also say that the death penalty is morally justified when someone commits a crime like murder. Just 25% of those who oppose the death penalty say it is morally justified.

This relationship holds among members of each party. Among Republicans and Republican leaners who favor the death penalty, 94% say it is morally justified; 86% of Democrats and Democratic leaners who favor the death penalty also say this.

By comparison, just 35% of Republicans and 21% of Democrats who oppose the death penalty say it is morally justified.

Similarly, those who favor the death penalty are more likely to say it deters people from committing serious crimes. Half of those who favor the death penalty say this, compared with 13% of those who oppose it. And even though large majorities of both groups say there is some risk an innocent person will be put to death, members of the public who favor the death penalty are 24 percentage points more likely to say that there are adequate safeguards to prevent this than Americans who oppose the death penalty.

On the question of whether Black people and White people are equally likely to be sentenced to death for committing similar crimes, partisanship is more strongly associated with these views than one’s overall support for the death penalty: Republicans who oppose the death penalty are more likely than Democrats who favor it to say White people and Black people are equally likely to be sentenced to death.

Among Republicans who favor the death penalty, 78% say that Black and White people are equally likely to receive this sentence. Among Republicans who oppose the death penalty, about half (53%) say this. However, just 26% of Democrats who favor the death penalty say that Black and White people are equally likely to receive this sentence, and only 6% of Democrats who oppose the death penalty say this.

CORRECTION (July 13, 2021): The following sentence was updated to reflect the correct timespan: “Last year, in part because of the coronavirus outbreak, fewer people were executed than in any year in nearly three decades.” The changes did not affect the report’s substantive findings.

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Table of contents, 10 facts about the death penalty in the u.s., death penalty draws more americans’ support online than in telephone surveys, california is one of 11 states that have the death penalty but haven’t used it in more than a decade, public support for the death penalty ticks up, most popular.

About Pew Research Center Pew Research Center is a nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping the world. It conducts public opinion polling, demographic research, media content analysis and other empirical social science research. Pew Research Center does not take policy positions. It is a subsidiary of The Pew Charitable Trusts .

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A Reflection on the Death Penalty

death penalty reaction paper

What does the commandment “Thou shalt not kill” (Ex 20:13) mean for us today? In 1972 the supreme court opened the door to states to rewrite death penalty statutes to eliminate the problems cited in Furman v Georgia that is; punishment would be “cruel and unusual” if it was too severe for the crime, if it offended society’s sense of justice, if it was arbitrary, or if it was more effective than a less severe penalty. Regrettably, the death penalty was reinstated in 1977. The 2006 year end report of the Death Penalty Information Center (DPIC) demonstrates that executions have dropped to their lowest level in ten years. States are grappling with problems related to the lethal injection process and wrongful convictions. A 2006 Gallup poll reported that more people support a sentence of life without parole over the death penalty.

Justice and the death penalty in particular, in our land are flawed. This is evident by the number of individuals who have been exonerated. Such flaws were uncovered in the state of Maryland by the findings of the 2003 University of Maryland study of the death penalty after Governor Glendening declared a moratorium on its’ practice. In 2006, Lt. Governor Steele submitted his recommendations for reform of the death penalty in Maryland after being asked by Governor Ehrlich to form a commission to study how Maryland implements this practice. During the recent election, governor-elect O’Malley told leaders of the Catholic Conference that he hopes Marylanders will come to “understand and accept both morally and intellectually that capital punishment doesn’t prevent crime or homicides.” In 2005, China, Iran, Saudi Arabia, and the United States were responsible for ninety four percent of executions in the world. (DPIC statistics).

We are created by God, the author and Lord of life, in his image. Every life is a precious gift from him and is destined for eternity. In responding to the universal call to holiness, our response must include respect for life and the dignity of every human being– even for those who deny the right to others. Those who inflict harm on others must be held accountable. Punishment exacted must temper the demands of justice with respect for human life and dignity. Who will ever forget the example of God’s love and mercy set by Pope John Paul II when he forgave his would be assassin?

In 2005 the USCCB (United States Catholic Conference of Bishops) issued a new pastoral statement approved by its’ full body of Bishops (“A Culture of Life and the Penalty of Death”). In it they renewed their call first issued twenty five years earlier to end capital punishment in our country. “We renew our common conviction that it is time for our nation to abandon the illusion that we can protect life by taking life.”

Less than two weeks after issuing their statement, Cardinal William H. Keeler, Archbishop of Baltimore, displayed God’s mercy and love by paying a visit to death row inmate Wesley Eugene Baker. Despite the plea for mercy to commute his sentence to life without parole issued by Cardinal Keeler and his brother Bishops of the Maryland Catholic Conference to Governor Ehrlich, Baker would later be executed.

When the state ends a human life in this manner despite having non lethal alternatives, it does so in our (taxpayers) name. This act diminishes us all and it suggests that society can overcome one act of violence with another act of violence. As the USCCB statements suggests “ working together to end the use of the death penalty is an integral and important part of resisting a culture of death and building a true culture of life.”

I encourage my fellow Roman Catholics to reflect on our moral, not partisan, commitment to witness to being “…unconditionally pro life….” (Evangelium Vitae, 28) and then act in making an end to capital punishment in our country a reality. We can reflect on this by praying for the victims of crime and their loved ones. We can pray for those awaiting execution. We can pray for our law makers. We can act to make the end of this practice a reality by educating ourselves and others on the Catholic teaching on the death penalty. We can act by reaching out to families whose lives have been disrupted by violence. We can act by advocating for public policies that better protect us from perpetrators of violence without resorting to the death penalty.

“I have set before you life and death, the blessing and the curse. Choose life, then, that you and your descendants may live.” (Dt. 30:19)

———————————————————————————————————–

Biographical Sketch

Marie-Alberte Boursiquot, M.D. is a member of the Respect Life Committee of the Archdiocese of Baltimore and a member of the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary.

death penalty reaction paper

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Journal of Practical Ethics

A journal of philosophy, applied to the real world.

The Death Penalty Debate: Four Problems and New Philosophical Perspectives

Masaki Ichinose

The University of Tokyo

This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate.

I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I will then argue that we should not ignore the so-called “whom-question”, i.e. “To whom should we justify the system of punishment?” I identify three distinct chronological stages to address this problem, namely, “the Harm Stage”, “the Blame Stage”, and “the Danger Stage”.

I will also identify four problems arising from specific kinds of uncertainties present in current death penalty debates: (1) uncertainty in harm, (2) uncertainty in blame, (3) uncertainty in rights, and (4) uncertainty in causal consequences. In the course of examining these four problems, I will propose an ‘impossibilist’ position towards the death penalty, according to which the notion of the death penalty is inherently contradictory.

Finally, I will suggest that it may be possible to apply this philosophical perspective to the justice system more broadly, in particular to the maximalist approach to restorative justice.

----====oooo====----

1. To whom should punishment be justified?

What, exactly, are we doing when we justify a system of punishment? The process of justifying something is intrinsically connected with the process of persuading someone to accept it. When we justify a certain belief, our aim is to demonstrate reasonable grounds for people to believe it. Likewise, when we justify a system of taxation, we intend to demonstrate the necessity and fairness of the system to taxpayers.

What, then, are we justifying when we justify a system of punishment? To whom should we provide legitimate reasons for the system? It is easy to understand to whom we justify punishment when that punishment is administered by, for example, charging a fine. In this case, we persuade violators to pay the fine by bringing to their attention the harm that they have caused, harm which needs to be compensated. (Please note that I am only mentioning the primitive basis of the process of justification.) While we often generalise this process to include people in general or society as a whole, the process of justification would not work without convincing the people who are directly concerned (in this case, violators), at least theoretically, that this is a justified punishment, despite their subjective objections or psychological opposition. We could paraphrase this point per Scanlon’s ‘idea of a justification which it would be unreasonable to reject’ (1982, p.117). That is to say, in justifying the application of the system of punishment, we should satisfy the condition that each person concerned (especially the violator) is aware of having no grounds to reasonably reject the application of the system, even if they do in fact reject it from their personal, self-interested point of view.

In fact, if the violator is not theoretically persuaded at all in any sense—that is, if they cannot understand the justification as a justification—we must consider the possibility that they suffer some disorder or disability that affects their criminal responsibility.

We should also take into account the case of some extreme and fanatical terrorists. They might not understand the physical treatment inflicted on them in the name of punishment as a punishment at all. Rather, they might interpret their being physically harmed as an admirable result of their heroic behaviour. The notion of punishment is not easily applied to these cases, where the use of physical restraint is more like that applied to wild animals. Punishment can be successful only if those who are punished understand the event as punishment.

This line of argument entirely conforms to the traditional context in philosophy concerning the concept of a “person”, who is regarded as the moral and legal agent responsible for his or her actions, including crimes. John Locke, a 17th-century English philosopher, introduced and established this concept, basing it on ‘consciousness’. According to Locke, a person ‘is a thinking intelligent Being, that has reason and reflection, and can consider it self as it self, the same thinking thing in different times and places; which it does only by that consciousness’ (1975, Book 2, Chapter 27, Section 9). This suggests that moral or legal punishments for the person should be accompanied by consciousnesses (in a Lockean sense) of the agent. In other words, when punishment is legally imposed on someone, the person to be punished must be conscious of the punishment as a punishment; that is, the person should understand the event as a justified imposition of some harm. 1

However, there is a problem here, which arises in particular for the death penalty but not for other kinds of punishment. The question that I raise here is ‘to whom do we justify the death penalty?’ People might say it should be justified to society, as the death penalty is one of the social institutions to which we consent, whether explicitly or tacitly. This is true. However, if my claims above about justification are correct, the justification of the death penalty must involve the condemned convict coming to understand the justification at least at a theoretical level. Otherwise, to be executed would not be considered a punishment but rather something akin to the extermination of a dangerous animal. The question I want to focus on in particular is this: should this justification be provided before administering capital punishment or whilst administering capital punishment?

2. ‘Impossibilism’

Generally, in order for the justification of punishment to work, it is necessary for convicts to understand that this is a punishment before it is carried out and that they cannot reasonably reject the justification, regardless of any personal objection they may have. However, that is not sufficient, because if they do not understand at the moment of execution that something harmful being inflicted is a punishment, then its being inflicted would simply result in mere physical harm rather than an institutional response based on theoretical justification. The justification for punishment must be, at least theoretically, accepted both before and during its application. 2 This requirement can be achieved with regard to many types of punishment, such as fines or imprisonment. However, the situation is radically different in the case of the death penalty, for in this case, when it is carried out, the convict, by definition, disappears. During and (in the absence of an afterlife) after the punishment, the convict cannot understand the nature and justification of the punishment. Can we say then that this is a punishment? This is a question which deserves further thought.

On the one hand, the death penalty, once executed, logically implies the nonexistence of the person punished; therefore, by definition, that person will not be conscious of being punished at the moment of execution. However, punishment must be accompanied by the convict’s consciousness or understanding of the significance of the punishment, as far as we accept the traditional concept of the person as a moral and legal agent upon whom punishment could be imposed. It may be suggested that everything leading up to the execution—being on death row, entering the execution chamber, being strapped down—is a kind of punishment that the convict is conscious of and is qualitatively different from mere incarceration. However, those phases are factors merely concomitant with the death penalty. The core essence of being executed lies in being killed or dying. Therefore, if the phases of anticipation were to occur but finally the convict were not killed, the death penalty would not have been carried out. The death penalty logically results in the convict’s not being conscious of being executed, and yet, for it to be a punishment, the death penalty requires the convict to be conscious of being executed. We could notate this in the form of conjunction in the following way in order to make my point as clear as possible:

~ PCE & PCE

(PCE: ‘the person is conscious of being executed under the name of punishment’)

If this is correct, then we must conclude that the concept of the death penalty is a manifest contradiction in terms. In other words, the death penalty should be regarded as conceptually impossible, even before we take part in longstanding debates between retentionism and abolitionism. This purely philosophical view of the death penalty could be called ‘impossibilism’ (i.e. the death penalty is conceptually impossible), and could be classified as a third possible view on the death penalty, distinct from retentionism and abolitionism. A naïve objection against this impossibilist view might counter that the death penalty is actually carried out in some countries so that it is not impossible but obviously possible. The impossibilist answer to this objection is that, based on a coherent sense of what it means for a punishment to be justified, that execution in such countries is not the death penalty but rather unjustified lethal physical violence .

I am not entirely certain whether the ‘impossibilist’ view would truly make sense in the light of the contemporary debates on the death penalty. These debates take place between two camps as I referred to above:

Retentionism (the death penalty should be retained): generally argued with reference to victims’ feelings and the deterrence effects expected by execution.

Abolitionism (the death penalty should be abolished): generally argued through appeals to the cruelty of execution, the possibility of misjudgements in the trial etc.

The grounds mentioned by both camps are, theoretically speaking, applicable to punishment in general in addition to the death penalty specifically. I will mention those two camps later again in a more detailed way in order to make a contrast between standard debates and my own view. However, my argument above for ‘impossibilism’, does suggest that there is an uncertainty specific to the death penalty as opposed to other types of punishment. I believe that this uncertainty must be considered when we discuss the death penalty, at least from a philosophical perspective. Otherwise we may lose sight of what we are attempting to achieve.

A related idea to the ‘impossibilism’ of the death penalty may emerge, if we accept the fact that the death penalty is mainly imposed on those convicted of homicide. This idea is related to the understanding of death proposed by Epicurus, who provides the following argument (Diogenes Laertius 1925, p. 650-1):

Death, therefore, the most awful of evils, is nothing to us, seeing that, when we are, death is not come, and, when death is come, we are not. It is nothing, then, either to the living or to the dead, for with the living it is not and the dead exist no longer.

We can call this Epicurean view ‘the harmlessness theory of death’ (HTD). If we accept HTD, it follows, quite surprisingly, that there is no direct victim in the case of homicide insofar as we define ‘victim’ to be a person who suffers harm as a result of a crime. For according to HTD, people who have been killed and are now dead suffer nothing—neither benefits nor harms—because, as they do not exist, they cannot be victims. If this is true, there is no victim in the case of homicide, and it must be unreasonable to impose what is supposed to be the ultimate punishment 3 —that is, the death penalty—on those offenders who have killed others.

This argument might sound utterly absurd, particularly if it is extended beyond offenders and victims to people in general, as one merit of the death penalty seems to lie in reducing people’s fear of death by homicide. However, although this argument from HTD might sound bizarre and counterintuitive, we should accept it at the theoretical level, to the extent that we find HTD valid. 4 Clearly, this argument, which is based on the nonexistence of victims, could logically lead to another impossibilist argument concerning the death penalty.

There are many points to be more carefully examined regarding both types of ‘impossibilism’, which I will skip here. However, I must stop to ponder a natural reaction. My question above, ‘To whom do we justify?’, which introduced ‘impossibilism’, might sound eccentric, because, roughly speaking, theoretical arguments of justification are usually deployed in a generalised way and do not need to acknowledge who those arguments are directed at. Yet, I believe that this normal attitude towards justification is not always correct. Instead, our behaviour, when justifying something, focuses primarily on theoretically persuading those who are unwilling to accept the item being justified. If nobody refuses to accept it, then it is completely unnecessary to provide its justification. For instance, to use a common sense example, nobody doubts the existence of the earth. Therefore, nobody takes it to be necessary to justify the existence of the earth. Alternatively, a justification for keeping coal-fired power generation, the continued use of which is not universally accepted due to global warming, is deemed necessary. In other words, justification is not a procedure lacking a particular addressee, but an activity that addresses the particular person in a definite way, at least at first. In fact, it seems to me that the reason that current debates on the death penalty become deadlocked is that crucial distinctions are not appropriately made. I think that such a situation originates from not clearly asking to whom we are addressing our arguments, or whom we are discussing. As far as I know, there have been very few arguments within the death penalty debate that take into account the homicide victim, despite the victim’s unique status in the issue. This is one example where the debate can be accused of ignoring the ‘whom-question’, so I will clarify this issue by adopting a strategy in which this ‘whom-question’ is addressed.

3. Three chronological stages

Following my strategy, I will first introduce a distinction between three chronological stages in the death penalty. In order to make my argument as simple as possible, I will assume that the death penalty is imposed on those who have been convicted of homicide, although I acknowledge there are other crimes which could result in the death penalty. In that sense, the three stages of the death penalty correspond to the three distinct phases arising from homicide.

The first stage takes place at the time of killing; the fact that someone was killed must be highlighted. However, precisely what happened? If we accept the HTD, we should suppose that nothing harmful happened in the case of homicide. Although counterintuitive, let’s see where this argument leads. However, first, I will acknowledge that we cannot cover all contexts concerning the justification of the death penalty by discussing whether or not killing harms the killed victim. Even if we accept for argument’s sake that homicide does not harm the victim, that is only part of the issue. Other people, particularly the bereaved families of those killed, are seriously harmed by homicide. More generally, society as a whole is harmed, as the fear of homicide becomes more widespread in society.

Moreover, our basic premise, HTD, is controversial. Whether HTD is convincing remains an unanswered question. There is still a very real possibility that those who were killed do suffer harm in a straightforward sense, which conforms to most people’s strong intuition. In any event, we can call this first stage, the ‘Harm Stage’, because harm is what is most salient in this phase, either harm to the victims or others in society at large. If a justification for the death penalty is to take this Harm Stage seriously, the overwhelming focus must be on the direct victims themselves, who actually suffer the harm. This is the central core of the issue, as well as the starting point of all further problems.

The second stage appears after the killing. After a homicide, it is common to blame and to feel anger towards the perpetrator or perpetrators, and this can be described as a natural, moral, or emotional reaction. However, it is not proven that blaming or feeling angry is indeed natural, as it has not been proven that such feelings would arise irrespective of our cultural understanding of the social significance of killing. The phenomenon of blaming and the prevalence of anger when a homicide is committed could be a culture-laden phenomenon rather than a natural emotion. Nevertheless, many people actually do blame perpetrators or feel anger towards them for killing someone, and this is one of the basic ideas used to justify a system of ‘retributive justice’. The core of retributive justice is that punishment should be imposed on the offenders themselves (rather than other people, such as the offenders’ family). This retributive impulse seems to be the most fundamental basis of the system of punishment, even though we often also rely on some consequentialist justification favor punishment (e.g. preventing someone from repeating an offence). In addition, offenders are the recipients of blame or anger from society, which suggests that blaming or expressing anger has a crucial function in retributive justice. I will call this second phase the ‘Blame Stage’, which extends to the period of the execution. Actually, the act of blaming seems to delineate what needs to be resolved in this phase. Attempting to justify the death penalty by acknowledging this Blame Stage (or retributive justification) in terms of proportionality is the most common strategy. That is to say, lex talionis applies here—‘an eye for an eye’. This is the justification that not only considers people in general, including victims who blame perpetrators, but also attempts to persuade perpetrators that this is retribution resulting from their own harmful behaviours.

The final stage in the process concerning the death penalty appears after the execution; in this stage, what matters most is how beneficial the execution is to society. Any system in our society must be considered in the light of its cost-effectiveness. This extends even to cultural or artistic institutions, although at first glance they seem to be far from producing any practical effects. In this context, benefits are interpreted quite broadly; creating intellectual satisfaction, for example, is counted as a benefit. Clearly, this is a utilitarian standpoint. We can apply this view to the system of punishment, or the death penalty, if it is accepted. That is, the death penalty may be justified if its benefits to society are higher than its costs. What, then, are the costs, and what are the benefits? Obviously, we must consider basic expenses, such as the maintenance and labour costs of the institution keeping the prisoner on death row. However, in the case of the death penalty, there is a special cost to be considered, namely, the emotional reaction of people in society in response to killing humans, even when officially sanctioned as a punishment. Some feel that it is cruel to kill a person, regardless of the reason.

On the other hand, what is the expected benefit of the death penalty? The ‘deterrent effect’ is usually mentioned as a benefit that the death penalty can bring about in the future. In that case, what needs to be shown if we are to draw analogies with the previous two stages? When people try to justify the death penalty by mentioning its deterrent effect, they seem to be comparing a society without the death penalty to one with the death penalty. Then they argue that citizens in a society with the death penalty are at less risk of being killed or seriously victimised than those in a society without the death penalty. In other words, the death penalty could reduce the danger of being killed or seriously victimised in the future. Therefore, we could call this third phase the ‘Danger Stage’. In this stage, we focus on the danger that might affect people in the future, including future generations. This is a radically different circumstance from those of the previous two stages in that the Danger Stage targets people who have nothing to do with a particular homicide.

4. Analogy from natural disasters

The three chronological stages that I have presented in relation to the death penalty are found in other types of punishment as well. Initially, any punishment must stem from some level of harm (including harm to the law), and this is a sine qua non for the issue of punishment to arise. Blaming and its retributive reaction must follow that harm, and subsequently some social deterrent is expected to result. However, we should carefully distinguish between the death penalty and other forms of punishment. With other forms of punishment, direct victims undoubtedly exist, and those convicted of harming such victims are aware they are being punished. In addition, rehabilitating perpetrators in order for them to return to society—one aspect of the deterrent effect—can work in principle. However, this aspect of deterrence cannot apply to the death penalty because executed criminals cannot be aware of being punished by definition, and the notion of rehabilitation does not make sense by definition. Only this quite obvious observation can clarify that there is a crucial, intrinsic difference or distinction between the death penalty and other forms of punishment. Theories about the death penalty must seriously consider this difference; we cannot rely on theories that treat the death penalty on a par with other forms of punishment.

Moreover, the three chronological stages that have been introduced above are fundamentally different from each other. In reality, the subjects or people that we discuss and on whom we focus are different from stage to stage. In this respect, one of my points in this article is to underline the crucial need to discuss the issues of the death penalty by drawing a clear distinction between those stages. I am not claiming that only one of those stages is important. I am aware that each stage has its own significance; therefore, we should consider all three. However, we should be conscious of the distinctions when discussing the death penalty.

To make my point more understandable, I will suggest an analogy with natural disasters. Specifically, I will use as an analogy the biggest earthquake in Japan in the past millennium—the quake of 11 March 2011 (hereafter the 2011 quake). Of course, at first glance, earthquakes are substantially different from homicides. However, there is a close similarity between the 2011 quake and homicides, because although most of the harm that occurred was due to the earthquake and tsunami, in fact people were also harmed and killed during the 2011 quake at least partially due to human errors, such as the failure of the government’s policy on tsunamis and nuclear power plants. Thus, it is quite easy in the case of the 2011 quake to distinguish between three aspects, all of which are different from each other.

(1) We must recognise victims who were killed in the tsunami or suffered hardship at shelters. 5 This is the core as well as the starting point of all problems. What matters here is rescuing victims, and expressing our condolences.

(2) Then we will consider victims and people in general who hold the government and the nuclear power company responsible for political and technical mistakes. What usually matters here is the issue of responsibility and compensation.

(3) Finally, we can consider people’s interests in improving preventive measures taken to reduce damages by tsunami and nuclear-plant-related accidents in the future. What matters in this context is the reduction of danger in the future by learning from the 2011 quake.

Nobody will fail to notice that these three aspects are three completely different issues, which can be seen in exactly the same manner in the case of the death penalty. Aspects (1), (2), and (3) correspond respectively to the Harm Stage, the Blame Stage, and the Danger Stage. Undoubtedly, none of these three aspects should be ignored and they actually appear in a mutually intertwined manner: the more successful the preventive measures are, the fewer victims will be produced by tsunami and nuclear-plant accidents in the future. Those aspects affect each other. Likewise, we must consider each of the three stages regarding the death penalty.

5. Initial harm

The arguments thus far provide the basic standpoint that I want to propose concerning the debates on the death penalty. I want to investigate the issue of the death penalty by sharply distinguishing between these three stages and by simultaneously considering them all equally. By following this strategy, I will demonstrate that there are intrinsic uncertainties, and four problems resulting from those uncertainties, in the system of the death penalty. In so doing I will raise a novel objection to the contemporary debate over the death penalty.

Roughly speaking, as I have previously mentioned, the death penalty debate continues to involve the two opposing views of abolitionism and retentionism (or perhaps, in the case of abolitionist countries, revivalism). It seems that the main arguments to support or justify each of the two traditional views (which I have briefly described in section 2 above) have already been exhausted. What matters in this context is whether the death penalty can be justified, and then whether—if it is justifiable—it should be justified in terms of retributivism or utilitarianism. That is the standard way of the debate on the death penalty. For example, when the retributive standpoint is used to justify the death penalty, the notion of proportionality as an element of fairness or social justice might be relevant, apart from the issue of whether proportionality should be measured cardinally or ordinally (see von Hirsch 1993, pp. 6-19). In other words, if one person has killed another, then that person too ought to be killed—that is, executed—in order to achieve fairness. However, as other scholars such as Tonry (1994) have argued, it is rather problematic to apply the notion of proportionality to the practice of punishment because it seems that there is no objective measure of offence, culpability, or responsibility. Rather, the notion of parsimony 6 is often mentioned in these contexts as a more practical and fairer principle than the notion of proportionality.

However, according to my argument above, such debates are inadequate if they are simply applied to the case of the death penalty. Proportionality between which two things is being discussed? Most likely, what is considered here is the proportionality between harm by homicide (where the measured value of offence might be the maximum) and harm by execution. However, I want to reconfirm the essential point. What specifically is the harm of homicide? Whom are we talking about when we discuss the harm of homicide? As I previously argued, citing Epicurus and his HTD, there is a metaphysical doubt about whether we should regard death as harmful. If a person simply disappears when he or she dies and death is completely harmless as HTD claims, then it seems that the retributive justification for the death penalty in terms of proportionality must be nonsense, for nothing at all happens that should trigger the process of crime and punishment. Of course, following HTD, the execution should be similarly regarded as nonsensical. However, if that is the case, the entire institutional procedure, from the perpetrator’s arrest to his or her execution, must be considered a tremendous waste of time, labour, and money.

Some may think that these kinds of arguments are merely empty philosophical abstractions. That may be. However, it is not the case that there is nothing plausible to be considered in these arguments. Consider the issue of euthanasia. Why do people sometimes wish to be euthanised? It is because people can be relieved of a painful situation by dying. That is to say, people wishing to be euthanised take death to be painless, i.e. harmless, in the same manner as HTD. This idea embedded in the case of euthanasia is so understandable that the issue of euthanasia is one of the most popular topics in ethics; however, if so, Epicurus’s HTD should not be taken as nonsensical, for HTD holds in the same way as the idea embedded in the case of euthanasia that when we die, we have neither pain nor any other feeling. What I intend to highlight here is that we must be acutely aware that there is a fundamental problem concerning the notion of harm by homicide, if we want to be philosophically sincere and consistent 7 .

In other words, I assert that the contemporary debate over the death penalty tends to lack proper consideration for the Harm Stage in which victims themselves essentially matter, although that stage must be the very starting point of all issues. We must understand this pivotal role of the Harm Stage before intelligently discussing the death penalty. Of course, in practice, we can discuss the death penalty in a significant and refined manner without investigating the Harm Stage. For example, according to Goldman, one of the plausible positions regarding the justification for punishment in general is a position that combines both retributivism and utilitarianism. Mentioning John Rawls and H. L. A. Hart, Goldman writes (1995, p. 31):

Some philosophers have thought that objections to these two theories of punishment could be overcome by making both retributive and utilitarian criteria necessary for the justification of punishment. Utilitarian criteria could be used to justify the institution, and retributive to justify specific acts within it.

Goldman argues, however, that this mixed position could result in a paradox regarding how severe the punishment to be imposed on the guilty should be, even though this position avoids punishing the innocent (ibid., p.36):

While the mixed theory can avoid punishment of the innocent, it is doubtful that it can avoid excessive punishment of the guilty if it is to have sufficient effect to make the social cost worthwhile.

This argument is useful in providing a moral and legal warning to society not to punish offenders more severely than they deserve, even if that punishment is more effective in deterring future crimes. I frankly admit that Goldman’s suggestion goes to the essence of the concept of justice. However, I must also say that if his argument is applied to the death penalty, then it has not yet touched the fundamental question that forms the basis of the whole issue: whose harm should we discuss? Is it appropriate not to discuss the Harm Stage? Alternatively, I am raising the following question: who is the victim of homicide? At the very least, I think we should admit that this very question is the crucial one constituting the first problem on the death penalty, the Uncertainty of Harm.

6. Feeling of being victimised

Next, I will examine another kind of uncertainty that is specific to the Blame Stage; the idea of retribution matters here. As far as the Japanese context for the death penalty is concerned, according to statistical surveys of public opinion, people tend to strongly support the death penalty in the case of particularly violent homicides in which they are probably feeling particularly victimised. If the death penalty were abolished, it seems that the abolition would be extremely unfair to victims of homicide, as the rights of victims (i.e. rights of life, liberty, property, and so on) would be denied by being killed, whereas those of perpetrators would be excessively protected. Obviously, the notion of retributive proportionality or equilibrium is the basis for this argument. To put it another way, this logic of retribution aims at justifying the death penalty in terms of its achieving equilibrium between the violated rights of victims and the deprived rights of perpetrators in the name of punishment. Is this logic perfectly acceptable? Emotionally speaking, I want to say yes. We Japanese might even say that perpetrators should gallantly and bravely kill themselves to take responsibility for their actions, as we have a history of the samurai who were expected to conduct hara-kiri when they did something shameful. However, theoretically speaking, we cannot accept this logic immediately, because there are too many doubtful points. Those doubts as a whole constitute the second problem concerning the death penalty.

First, we must ask, as well as in the previous section, on the issue of feeling victimised, whom are we discussing? Whose feelings and whose rights matter? Direct victims in the case of homicide do not exist by definition. Then a question arises: why can substitutes (prosecutors and others) or the bereaved family ask for the death penalty based on their feelings rather than the direct victim’s feeling? How are they qualified to ask for such a stringent punishment when they were not the ones killed? The crucial point to be noted here is that the bereaved family is not identical with the direct victim. Second, even if it is admitted that the notion of the victim’s emotional harm are relevant to sentencing (and at least in the sense of emotional harm the bereaved family’s suffering I would agree that this makes them certainly the principal victims even if not the direct victim), it must be asked: can we justify an institution based on a feeling? This question is a part of the traditional debate concerning the moral sense theory. We have repeatedly asked whether social institutions can be based on moral sense or human feeling, when such sense or feeling cannot help but be arbitrary because those, after all, are subjective. The question is still unanswered. Third, if the feelings of being victimised justify the death penalty, then could an accidental killing or involuntary manslaughter be included in crimes that deserve the death penalty? Actually, the feelings of the bereaved family in the case of accidental killing could be qualitatively the same as in the case of voluntary homicide. However, even countries which adopt the death penalty do not usually prescribe that execution is warranted for accidental killing. Fourth, I wonder whether the bereaved family who feel victimised always desire the execution of the killer. It could be that they consider resuming their daily lives more important than advocating the execution of the murderer who killed their family member. As a matter of practical fact, executions of perpetrators need have nothing to do with supporting bereaved families. Fifth, if we accept the logic in which the death penalty is justified by the bereaved family’s feeling of being victimised, how should we deal with cases where the person who was killed was alone in the world, with no family? If there is no bereaved family, then no one feels victimised. Is the death penalty unwarranted in this case? In any case, as these questions suggest, we should be aware that retributive justification based upon the feeling of being victimised is not as acceptable as we initially expected. Once again, there is uncertainty here. Uncertainty of blame leads to the second problem concerning the death penalty.

7. Violation and forfeiture

Of course, the retributive justification for the death penalty does not have to depend upon the feeling of being victimised alone, even if the primitive basis for it might lie in human emotion. The theoretical terminology of human rights themselves (rather than emotional feeling based on the notion of rights) could be used as justification: if a person violates another’s rights (to property, freedom, a healthy life, etc.), then that person must forfeit his or her own rights in proportion to the violated rights. This can be regarded as a formulation of the system of punishment established in the modern era that is theoretically based upon the social contract theory. The next remark of Goldman confirms this point (1995, p.33):

If we are asked which rights are forfeited in violating the rights of others, it is plausible to answer just those rights that one violates (or an equivalent set). One continues to enjoy rights only as long as one respects those rights in others: violation constitutes forfeiture . . . Since deprivation of those particular rights violated is often impracticable, we are justified in depriving a wrongdoer of some equivalent set, or in inflicting harm equivalent to that which would be suffered in losing those same rights.

However, the situation is not so simple, particularly in connection with the death penalty. In order to clarify this point, we have to reflect, albeit briefly, on how the concept of human rights has been historically established. I will trace the origin of the concept of human rights by referring to Fagan’s overall explanation. According to Fagan (2016, Section 2):

Human rights rest upon moral universalism and the belief in the existence of a truly universal moral community comprising all human beings . . . The origins of moral universalism within Europe are typically associated with the writings of Aristotle and the Stoics.

Followed by the remark:

Aristotle unambiguously expounds an argument in support of the existence of a natural moral order. This natural order ought to provide the basis for all truly rational systems of justice . . . The Stoics thereby posited the existence of a universal moral community effected through our shared relationship with god. The belief in the existence of a universal moral community was maintained in Europe by Christianity over the ensuing centuries.

This classical idea was linked during the 17th and 18th centuries to the concept of ‘natural law’ including the notion of ‘natural rights’ that each human being possesses independently of society or policy. ‘The quintessential exponent of this position was John Locke . . . Locke argued that natural rights flowed from natural law. Natural law originated from God’ (ibid.). Fagan continues (ibid.):

Analyses of the historical predecessors of the contemporary theory of human rights typically accord a high degree of importance to Locke’s contribution. Certainly, Locke provided the precedent of establishing legitimate political authority upon a rights foundation. This is an undeniably essential component of human rights.

Although, of course, we should take post-Lockean improvement including Kantian ideas into account to fully understand contemporary concepts of human rights, we cannot deny that Locke’s philosophy ought to be considered first.

As is well known, Locke’s argument focuses on property rights. He put forth the idea that property rights were based on our labour. Thus, his theory is called ‘the labour theory of property rights’. Let me quote the famous passage I have in mind (Locke 1960, Second Treatise, Section 27):

Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Works of his Hands, we may say, are properly his.

This idea could cover any kind of human rights such as those for living a healthy life, liberty, and property, because human rights are supposed to be owned by us. For example, H. L.A. Hart once argued that legal rights are nothing but legal powers to require others to meet correlative obligations, and then pointed out that; ‘we also speak of the person who has the correlative right as possessing it or even owning it’ (Hart 1982, p.185). If this is the case, we can make property rights representative of all human rights.

However, if we follow Locke’s theory (and many countries, including Japan, still do), then it logically follows that what we cannot gain by our labour by definition cannot be objects of human rights. How does Locke’s idea apply to our life itself (rather than simply living a healthy life)? Are we able to acquire our life itself by our labour? No, we cannot. We can realise a healthy life by making an effort to be moderate, but we cannot create our lives. We are creatures or animals; therefore, our lives are not something that we ourselves made by our labour. Locke uses the concept of power (as Hart does) when he discusses various aspects of property rights. Among those, we should pay particular attention to the following (Locke 1960, Second Treatise, Section 23):

For a Man, not having the Power of his own life, cannot, by Compact, or his own Consent, enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he pleases.

Locke also wri tes (1960, Section 24):

No Man can, by agreement, pass over to another that which he hath not in himself, a Power over his own life.

Obviously, Locke assumes that we have no property rights over our own lives or bodies themselves, or more precisely, no property rights in controlling and destroying our own lives as a whole; therefore, we cannot alienate those rights to others. We cannot alienate or forfeit what we do not have. If this is the case and we presuppose the formulation of the system of punishment introduced above in terms of violation and forfeiture, what would result? The answer is clear. Our lives themselves are conceptually beyond the terminology of human rights, and thus, if the death penalty is defined as a punishment requiring the forfeiture of the perpetrator’s right to life, the death penalty should be regarded as conceptually contradictory or impossible. We cannot lose tails, as we do not have tails. Likewise, we cannot own our lives (i.e. we have no property rights in our life itself), so we cannot lose our lives, at least in such a sense as forfeiture of human rights. This is the third route to an ‘impossibilist’ view of the death penalty. This argument depends heavily on Locke’s original theory. Nevertheless, as long as we have to consider Locke’s classical view seriously in order to discuss the relation between punishment and human rights, we must be aware that we could be involved in theoretical uncertainty in justifying the death penalty through the notion of human rights in a retributivist flavour, as the argument thus far suggests. This is the very puzzle that I want to propose as the third problem concerning the death penalty debates.

Moreover, we must acknowledge that retributive ideas in the Blame Stage usually include a kind of evaluation of the psychological state of the agent’s behaviour at the time of the crime as a matter of legal fact. In other words, rationality, freedom, or mens rea are usually needed for agents to be judged guilty. However, from a strictly philosophical perspective, we should say that it is far from easy in principle to confirm those states in the past. Indeed, this psychological trend seems to cause controversy in court proceedings, as seen, for example, in the American context known as ‘battered-woman syndrome’. If a woman who has been routinely battered by her partner suddenly fights back and kills her partner, American courts often find her not guilty. People wonder whether such an evaluation concerning battered women could be correctly made without arbitrariness. Additionally, philosophical debates on free will and the development of the brain sciences must be considered. Some philosophers assert that we have no free will because our personality and actions are intrinsically governed by external factors, such as our environments or biological conditions, which are definitely beyond our control. This philosophical standpoint is often called ‘hard incompatibilism’ (see Strawson 2008). In this respect, my analogy to a natural disaster could be seen as appropriate, as our actions might be taken to be just natural phenomena at the end of the day. 8 Furthermore, brain sciences often provide shocking data to suggest that our will may be controlled by brain phenomena occurring prior to our consciousness, as shown by Benjamin Libet. In view of such contemporary arguments, we have little choice but to say that we cannot be perfectly certain whether a given perpetrator who committed homicide is truly guilty, as long as we adopt the present standard for judging the psychological states of offenders in court. To sum up, the third problem for the death penalty is the difficulty in knowing whether someone has property in their life itself as well as uncertainty about the mental state of the accused, this is the Uncertainty of Rights Violation.

8. The deterrent effect

Finally, I will examine some problems in the Danger Stage. What matters in this context is the utilitarian justification for the death penalty; I will focus on what is called the ‘deterrent effect’. Firstly, I would like to say that the death penalty undoubtedly has some deterrent effect. This is obvious if we imagine a society where violators of any laws, including minor infractions such as a parking ticket or public urination, must be sentenced to death. I believe that the number of all crimes would dramatically reduce in that society, although it would constitute a horrible dystopia. The argument for the deterrent effect of the death penalty probably arises from the same line of ‘common sense’ thinking. For example, Pojman says, ‘there is some non-statistical evidence based on common sense that gives credence to the hypothesis that the threat of the death penalty deters and that it does so better than long prison sentences’ (Pojman 1998, pp. 38-39). Specifically, this deterrent effect presupposes the utility calculus that a human being conducts, whether consciously or unconsciously, in terms of ‘weighing the subjective severity of perceived censure and the subjective probability of perceived censure against the magnitude of the desire to commit the offence and the subjective probability of fulfilling this desire by offending’ (Beyleveld 1979, p. 219). Therefore, if we presuppose the basic similarity of human conditions, it may be plausible to state the following about the deterrent effect of punishment: ‘this can be known a priori on the basis of an analysis of human action’ (ibid., p. 215). However, in fact, the death penalty in many countries is restricted to especially heinous crimes, such as consecutive homicides (although some countries apply the death penalty to a wider range of crimes), which suggests that we must conduct empirical studies, case by case, if we want to confirm the deterrent effect of the death penalty. Therefore, the question to be asked regarding the deterrent effect is not whether the death penalty is actually effective, but rather how effective it is in restricted categories of crimes. What matters is the degree.

There are many statistical surveys concerning this issue. In particular, an economic investigation by Ehrlich is often mentioned as a typical example. After examining detailed statistical data and taking into account various factors, such as race, heredity, education, and cultural patterns, Ehrlich suggest s (1975, p. 414):

An additional execution per year over the period in question [i.e., 1935-1969] may have resulted, on average, in 7 or 8 fewer murders.

Of course, this estimate includes too many factors and presumptions to be perfectly correct. Ehrlich himself is aware of this and thus says (ibid.):

It should be emphasized that the expected tradeoffs computed in the preceding illustration mainly serve a methodological purpose since their validity is conditional upon that of the entire set of assumptions underlying the econometric investigation … however … the tradeoffs between executions and murders implied by these elasticities are not negligible, especially when evaluated at relatively low levels of executions and relatively high level[s] of murder.

Ehrlich’s study drew considerable criticism, most of which pointed out deficiencies in his statistical methodology. Therefore, at this moment, we should say that we are able to infer nothing definite from Ehrlich’s study, although we must value the study as pioneering work.

Van den Haag proposes an interesting argument based upon uncertainty specific to the deterrent effect of the death penalty. He assumes two cases, namely, case (1), in which the death penalty exists, and case (2), in which the death penalty does not exist. In each case there is risk or uncertainty. On the one hand, in case (1), if there is no deterrent effect, the life of a murderer is lost in vain, whereas if there is a deterrent effect, the lives of some murderers and innocent victims will be saved in the future. On the other hand, in case (2), if there is no deterrent effect, the life of a convicted murderer is saved, whereas if there is a deterrent effect, the lives of some innocent victims will be lost in the future (Van den Haag 1995, pp. 133-134). Conway and Pojman explain this argument using the following table, ‘The Best Bet Argument’, which I have modified slightly, having DP stand for the death penalty, and DE the deterrent effect:

Following this table, Conway assumes (after Van den Haag’s suggestion that the life of a convicted murderer is not valued more highly than that of the unknown victims) numerical values about each case (each numerical number stands for not a number of people but a hypothetical value for a person to be saved or killed) :

a murderer saved +5

a murderer executed -5

an innocent saved +10

an innocent murdered -10

Moreover, he assumes that for each execution, only two innocent lives are spared (i.e. he assumes the deterrent effect to be almost the minimum). Then, consequently, executing convicted murderers turns out to be a good bet (Conway 1995, pp. 265-266; Pojman 1998, pp. 40-41).

9. Negative causation and where to give priority

Van den Haag’s ‘Best Bet Argument’ sounds quite interesting. However, Conway has already proposed a fundamental challenge to this argument: it mistakenly regards the actual death of convicted murderers as being on a par with the possible death of innocent victims in the future (Conway 1995, pp. 269-270). This is confusing or possibly a rhetorical sleight of hand. I think that Conway’s reaction to Van den Haag’s argument is a reasonable one.

As I approach my conclusion, I will propose two problems with Van den Haag’s argument. First, I want to acknowledge that any arguments, including Van den Haag’s, supporting the death penalty in terms of its deterrent effect seem to presuppose a causal relationship between the existence of the death penalty and people not killing others. For example, Pojman writes, ‘the repeated announcement and regular exercise of capital punishment may have deep causal influence’ (1998, p. 48). However, epistemologically speaking, that presupposition is extremely hard to confirm, because the effect of this causal relationship is not a positive, but rather a negative event, which is the event of not killing others. This has something to do with the philosophical problem of how to understand negative properties. By negative properties we mean that, for example, my room is not full of seawater; my room does not consist of paper; my room is not melting us, etc. Such descriptions by negative properties can be made almost endlessly. In other words, one identical event described by a positive property (e.g., this room is well lit) can be re-described in infinite ways in terms of negative properties. Take the example that I am now at my computer in Tokyo, writing a paper. This event can also be described as ‘I am not eating’, ‘I am not sleeping’, ‘I am not killing others’ (!), etc. The positive event, ‘I am writing a paper now’, can be understood through a causal relationship. The event was most likely caused by my intention to do so, which was caused by my sense of duty as a professor, etc. How, then, could we understand the negative description of my action, ‘I am not killing others’? Was this caused by the existence of the death penalty in Japan?

Perhaps I was completely unaware of the existence of the death penalty in Japan when I wrote a paper without killing others. Could the death penalty be its cause? Could the negative event ‘I am not killing others’ be an effect of the death penalty? It is hard to say so.

This problem is the same as the problem of ‘causation by absence’ or ‘omission-involving causation’. Generally, causation by absence is usually examined in the form of answering a question about whether nothingness can cause something. For example, David Lewis discusses a question about how a void (understood as being entirely empty or nothing at all, differing from a vacuum) is regarded as a cause of something (Lewis 2004). He says, ‘If you were cast into a void, it would cause you to die in just a few minutes. It would suck the air from your lungs. It would boil your blood. It would drain the warmth from your body. And it would inflate enclosures in your body until they burst’ (ibid., p.277). However, the problem is that the void is nothing. ‘When the void sucks away the air, it does not exert an attractive force on the air’ (ibid.). Furthermore, another, perhaps harder problem would arise. We can say, ‘If I defended you from being cast into a void, you would not die’. Namely, my omission to defend you would cause you to die. However, should only my omission matter? What of your brother’s omission to defend you? Or the Prime Minister of the UK’s omission to defend you? Are not all of those qualified to be the cause of your death, as least as long as we adopt a common-sense counterfactual analysis of causation? As this argument suggests, in the context of the current debate on this problem, the most troublesome phase is that ‘too many’ absences can be supposed to cause a particular effect. I quote Menzies, who says (2004, p.145):

I am writing this essay at my computer. If, however, there were nerve gas in the air, or I were attacked with flamethrowers, or struck by a meteor shower, I would not be writing the essay. But it is counterintuitive to say that the absence of nerve gas, flamethrower attack, and meteor strike are causes of my writing the essay.

This example takes the issue of absence as a cause, but simultaneously his example refers to the case of effect as absence (not writing the essay). As this shows, the current debate on the problem of causation by absence could extend to the case of effect as absence. In any case, what matters is a possibility that ‘too many’ absences can cause something, and something can cause ‘too many’ absences (Menzies calls this problem ‘the problem of profligate causation’ (ibid., pp.142-145). Then the deterrent effect of the death penalty is definitely classified as a case of absence as effect rather than cause. In other words, the absence of homicide (as effect) matters, whereas in this case execution (as cause) is presupposed to exist. It seems that the current debate on causation by absence is highly likely to contribute to discussing the problem of the deterrent effect.

Of course, someone may counter my argument by saying that what matters in this context is a statistical correlation between the number of executions and the number of homicides, which could be confirmed in an empirical way. I admit that the statistical correlation plays a crucial role here, even though we must simultaneously acknowledge that what is called ‘randomized controlled trial’, the most reliable, statistical methodology to confirm causal relations, is unfeasible due to the nature of the problem. Actually, this kind of correlation is too rough to predict the causal relationship between those, although the causation really matters. Causes of a reduction or increase in the number of homicides can be interpreted or estimated in various ways, considering confounding factors, such as education, economic situation, urban planning, and so on. Therefore, in principle, there always remains the possibility that the apparent correlation between the death penalty and the reduction of homicides is merely accidental. For example, there may be another, common cause, that brings about both people’s tendency to support the death penalty and the reduction of homicides 9 . We should recognise that there is intrinsic uncertainty here. These difficulties concerning causal relations give rise to a fourth problem related to the death penalty debates – the Uncertainty of Causal Consequences.

Incidentally, let me now return to my distinction of the three stages regarding the death penalty. Obviously, the issue of the deterrent effect belongs primarily to the Danger Stage. Yet it is vital to consider the Harm Stage. How can the deterrent effect affect the Harm Stage? I must say that the retentionist’s argument, in terms of the deterrent effect of the death penalty, completely dismisses this essential point. We need only recall the analogy of the 2011 quake in Japan. ‘Retentionism’ based upon the deterrent effect corresponds to aspect (3), where the improvement of the preventive system matters. This is important, of course, but cannot be a priority. Priority lies in the issues of how to deal with the actual harm that the victims have already suffered (specifically referring to the bereaved family or others in the case of homicide and the death penalty). Without consideration of how to cope with the harm, even if the theory seriously considers the innocent victims in the future, the retentionists’ theory can hardly be persuasive.

It is true that the retentionists’ theory based on the deterrent effect appropriately considers the person harmed in the process of punishment. For example, Walker considers such a phase in the process of punishment as one of the possible objections against retentionism based on the deterrent effect by saying: ‘if the benefit excludes the person harmed this too is nowadays regarded by many people as morally unacceptable’ (Walker 1980, p. 65). However, as the context clearly shows, by ‘the person harmed’ he means the person punished. He does not mention the initial harm suffered by victims. This problem is concerned with my previous claim; that is, we have to consider the ‘whom-question’ when we discuss the justification of punishment. Whom are we discussing? Whose benefit do we consider? In the face of victims before our eyes, can we emphasise only the improvement of preventive systems for the future? Evidently, actual victims are the first to be helped, although obviously it is not at all bad to simultaneously consider the preventive system in the future. It is necessary for us to respect basic human rights and the human dignity of perpetrators and innocent people in the future; however, that respect must be in conjunction with our first taking care of actual victims. We ought not to get our priorities wrong.

10. Prospects

I have indicated that the debates on the death penalty are inevitably surrounded by four problems over specific kinds of uncertainties: uncertainty concerning the victim of homicide, uncertainty in justifying the death penalty from the feeling of being victimised, uncertainty in justifying the death penalty on the basis of human rights, and uncertainty over negative causation. In the course of examining these problems, I have proposed the option of developing an ‘impossibilist’ position about the death penalty, which I am convinced, deserves further investigation. However, being surrounded by theoretical problems and uncertainties might be more or less true of any social institution. My aim is only to suggest how the death penalty should be understood as involving uncertainties from a philosophical perspective. Most likely, if there is something practical that I can suggest based on my argument, then what we might call a ‘Harm-Centred System’ may be introduced as a relatively promising option instead of, or in tandem with, the death penalty. What I mean by this is a system in which we establish as a priority redressing actual harm with regard to legal justice, where ‘actual harm’ only implies what the bereaved family suffer from, as the direct victims have already disappeared in the case of homicide. In other words, I think that something akin to the maximalist approach to restorative justice 10 or some hybrid of the traditional justice system and the restorative justice system should be seriously considered, although we cannot expect perfect solutions exempt from all of the above four problems. It is certainly worth considering whether some element of restorative justice can play a significant role in the best theory of punishment.

In any case, my argument is at most a philosophical attempt to address problems. How to apply it to the practice of the legal system is a question to be tackled in a future project.

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1. Strangely, few Locke scholars have seriously tried to understand the Lockean meaning of punishment, which is developed in his Second Treatise ,(Locke 1960), in the light of his theory of personal identity based upon ‘consciousness’, which is discussed in his Essay Concerning Human Understanding . Taking into account the fact that ‘person’ appears as the key word in both works of Locke, we must bridge the gap between his two works by rethinking the universal significance of ‘person’ in his arguments. There were, however, some controversies concerning how Locke evaluates the death penalty. See Calvert (1993) and Simmons (1994).

2. There is an additional question about whether justification is needed after the execution when the convict is no longer around, in addition to ‘before’ and ‘during’. According to my understanding of justification, the process of justification must begin with making each person concerned understand what there is no reason to reject, but that is just a starting, necessary point. Justification must go beyond the initial phase to acquiring general consent from society. In this sense, justification seems to be needed even ‘after’ the execution. Actually, if there is no need for justification after the execution, that sounds less like punishment based on a system of justice than merely physical disposal.

3. Is it true that the death penalty is the ultimate punishment? Can we not suppose that the death penalty is less harmful than a life sentence or very lengthy incarceration? However, this view regarding the death penalty as less harmful than a lifelong sentence could lead to a paradox. If this order of severity as punishment is valid, it may be possible to reduce the lifelong sentence (due to an amnesty, some consideration on the prisoner’s rehabilitation, or something like that) to the death penalty. If this is the case, prisoners given the lifelong sentence will not make an effort at all to rehabilitate themselves, due to fear of the sentence being reduced to the death penalty. In addition, if a person is likely to be sentenced to death, the person might try to commit a more heinous crime, perhaps even in the court in order to be given a more severe sentence, i.e. a life sentence in prison. That is a paradox drawn from human nature.

4. On the current debates on ‘HTD’ of Epicurus, see Fischer (1993). Of course, there are lots of objections against the Epicurean view. The most typical objection is that death deprives people of their chance to enjoy life, and therefore death is harmful. However, it seems to me that “whom-question” must be raised again here. To whom is the deprivation of this chance harmful? In any case, the metaphysics of death is a popular topic in contemporary philosophy, which should involve not only metaphysical issues but also ethical and epistemological problems.

5. In fact, the hardships suffered by those forced to flee to shelters constituted the main problem resulting from the nuclear power plants accident. In general, radiation exposure is the most well-known problemarising from nuclear power plant accidents, but it is not always the case. In particular in the case of the Fukushima nuclear power plant accident in Japan, the overestimation of the danger of radiation exposure, and evacuation activities resulting from that overestimation, caused the biggest and the most serious problems including many of the deaths. We always have to take the risk-tradeoff into account. Radiation exposure is just one risk, and is not the only risk to be considered. See Ichinose (2016).

6. The notion of parsimony was newly offered to avoid a fundamental drawback of the standard retributive system, whether based on cardinal or ordinal proportionality: the standard system tends to inflict excessive, cruel punishment, as its criterion of measuring wrongness is not exempt from being arbitrary. In contrast, the newly offered system could hold inflicted punishment ‘as minimally as possible, consistent with the vague limits of cardinal desert’ (Walen 2015) in terms of introducing an idea of parsimony. The notion of parsimony could make the retributive system of punishment more reasonable and humane while retaining the idea of retribution.

7. Roger Crisp kindly pointed out that it is worth considering an institutional justification according to which punishment wouldn’t have to be tailored to a particular case. In this view, it is sufficient that death is generally bad for both victims and perpetrators. I do not deny the practical persuasiveness of this view. However, from a more philosophical point of view, we should propose a question ‘how can we know that death is generally bad for victims of homicide?’ Following HTD, which is certainly one possible philosophical view, death is not bad at all, regardless of whether we talk about general issues or particular cases, as an agent to whom something is bad or not disappears by dying by definition. Of course, as long as we exclusively focus upon harm which the bereaved family or the society in general suffer, the institutional justification could make good sense, although in that case the issue of direct victims killed would remain untouched.

8. Additionally, my analogy with natural disasters, particularly the case of the 2011 quake, could be re-confirmed to be appropriate in the sense of presenting a similar kind of uncertainty to the case of the death penalty. The danger of constant exposure to low doses of radiation for long periods involves some uncertainty, as far as we now know. Fortunately, however, the dose of radiation to which the people of Fukushima were exposed as a result of the 2011 quake, internally and externally, was low enough for us to be certain, based upon past epidemiological research, that no health problems will arise in the future. Regarding radiation exposure, everything depends upon the level of dose. The smaller the dose, the less dangerous it is.

9. On negative causation and the possibility of common cause, see Ichinose (2013). In particular, my argument on negative causation concerning the death penalty rests on my argument of Ichinose (2013).

10. According to Bazemore and Walgrave, ‘restorative justice is every action that is primarily oriented towards doing justice by repairing the harm that has been caused by a crime (Bazemore and Walgrave 1999 (2), p.48). Restorative justice, that is to say, is a justice system that mainly aims at restoring or repairing the harm of offences rather than punishing offenders as the retributive justice system does. Initially, restorative justice has been carried out by holding ‘a face-to-face meeting between the parties with a stake in the particular offense’ (ibid.) like victim, offenders, or victimised communities. However, this type of justice system works only in a complementary way to the traditional system of retributive justice. Then, the maximalist approach to restorative justice was proposed, which seeks to develop ‘restorative justice as a fully-fledged alternative’(Bazemore and Walgrave 1999 (1). Introduction. P.8) to retributive justice. This approach ‘will need to include the use of coercion and a formalization of both procedures and the relationship between communities and society’ (ibid., p.9.)

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Pro-Death Penalty, Reaction Paper Example

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This paper puts forward the stance that supports the argument in favour of the death penalty in the United States of America.  It is essentially a scholarly review that considers the opinion of subject matter experts and those considered having professional knowledge in this area.  The paper mainly examines the social issues and implications of imposition of the death penalty; it does not examine the counter arguments or those against the death penalty.  The paper is structured into four distinct parts, (i) Introduction and Background to the death penalty in the USA (ii) A statement of the problem ( iii) Analysis of the problem and (iv) Conclusion.  It answers the question – Is the death penalty required in the framework of US Criminal law.

Introduction and Background

In 2009 Amnesty International released its annual report on the state of the world human rights.  Included in the report  is that the USA  has the most active death penalty practice with 100 new death sentences and 52 executions.  Recently a book has been produced voices of the death penalty debate that explores the argument a for and against keeping the death penalty in the USA.  “This text readers through the testimony of experts, ordinary citizens, victims, organizational leaders, religious leaders and those he exonerated and freed from death row.” (Murphy, 2010).

On the 1st April 2008 the death penalty was authorized by 37 states in the USA, the Federal Government and the US Military.  It was in 2008 that the Nebraska Supreme Court sanctioned the use of the Electric Chair in violation of the Nebraska constitution. Statistics record the number of US executions, since 1976, as being 1,099 and 3,267 placed on death row. [1]

The Table in Fig 1 to the right illustrates the number of Executions in the USA by year since 1977 to 2000.  The last decade has seen an alarming increase.

Figure 1: US Executions 1977-2005

Figure 1: US Executions 1977-2005

Figure 2:  Illustrates  that the bulk of those executed  are white males with only a small proportion of female victims.  This somewhat debunks the myth of the bulk of those executed are of black African / American origin.

Executions by Race and Gender

Figure 2:  Executions by Race and Gender

Fig 3 shows those currently on death row by race or origin statistics with nearly half being of white origin and the remainder black people.

Death row by race

Figure3:   Death row by race

It is interesting to note that of all those retained on death row some 65% had previous felony convictions and a record of past criminal behaviour.

Statement of the problem

The debate on the imposition of the death penalty in the USA has  been really based on proper use of the sentence.  The execution of the mentally ill, the ability to get the sentence wrong; there is no reprieve from the death sentence.  Statistics show 63 innocent death row inmates released since 1973 as a result of incorrect picture.  There is however still a large lobby group that supports the retention of the death penalty as a deterrent  for homicide and violent crime.  The USA has a larger juvenile delinquency problems throughout major cities, with places like New York, Chicago, Los Angeles and Detroit having higher rates of statistics.  The death penalty has been imposed against juveniles, particularly the state of Texas, where there is a zero tolerance factor for homicide cases.  It is considered that the juvenile problem is a major social issue and that much more attention should be driven towards rehabilitation of the offenders before they become more hardened criminals and turn towards homicide.  California’s statistics illustrate the point.  The court simply cannot cope with the flow through of the young offenders and various little attempt is made at social rehabilitation or reform.

An example of a case that resulted in detention in Colorado might we have received a different verdict in the State of Texas ” The tranquility of a small Colorado town was shattered on April 25, 1983, when two sisters, ages 9 and 14, were bludgeoned and stabbed to death while at home alone after school. Billy Keenan, a 13-year-old neighbour with a history of psychological problems, became the prime suspect after casually revealing that he knew the order in which the girls were murdered and after a detective found blood spattered on his jeans. In the ensuing investigation, Billy admitted to the crime while under hypnosis, and he was sentenced to two years, the maximum sentence allowed for a convict under 14.”  (Adams, 1991).

The Pro-death penalty lobby group

“If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.”

John McAdams – Marquette University/Department of Political Science, on deterrence

There have been  numerous arguments put forward in support of the death penalty, amongst the most compelling arguments are:

  • Elimination– Capital punishment has been extremely effective in terms of removing the worst elements of criminals from our society.  The merger is cannot reoffend and as such we are protecting other potential innocent victims in our society.
  • Cost– it is extremely expensive to give a convicted murderer life imprisonment, and the cost becomes the burden of the taxpayer.  Equally, the cost of the courts in endless appeals.  Consider that in the USA, the average time spent on death row is 12 years.
  • Deterrence– statistics both in the USA and overseas to support the fact that the death penalty is an activity terror and to violent or major crime.  The city when the criminal is time to stop and reflect about the consequences.  One of the issues here, however is where the murderer is seen to be mentally ill criminally insane.
  • The UK case study– rates of murder in the UK have doubled since the abolition of the death penalty in 1964.  Between 1965 in 1969 recorded statistics showed a 125% increase in murder.  The US simply seen a drop in murder and statistics, where there was an increased use of the death penalty, dropping from 24,562.  In 1993 to 18,209 in 1997.

The country of Singapore actively supports the death penalty and this is seen as a major deterrent in that country. ” Singapore always carries out death sentences where the appeal has been turned down, so its population knows precisely what will happen to them if they are convicted of murder or drug trafficking – is this concept deeply embedded into the sub-consciousness of most of its people, acting as an effective deterrent? In 1995, Singapore hanged an unusually large number of 7 murderers with 4 in 1996, 3 in 1997 and only one in 1998 rising to 6 in 1999 (3 for the same murder”  (Bureau of Justice Statistics, 2010).

Amnesty International did not purely point the finger at the USA in terms of the human rights issues of the death penalty.  They equally looked at other countries that adopted the same philosophy ” Only China, Iran and Vietnam held more executions in 2004 than the US, according to rights group Amnesty International. Texas, Virginia and Oklahoma account for more than half of the 1,000 executions performed since 1977. Texas alone has carried out 355. ”  (Westhead, 2005).

Although in general terms the USA is seen as slowly moving away from the death penalty, nevertheless this is not seen as a view entirely adopted by Congress.  The concept of the mentally ill committing murder does not entirely receive a great deal of support from a number of congressman.  In fact there has been blame placed on the inadequacy of the system to prosecute the death penalty in more efficient and expedient means. ” Three years ago, the court declared it unconstitutional to execute criminals who were mentally retarded. But some Republicans in Congress are concerned that all the legal wrangling is delaying justice. They are now trying to pass legislation to speed up executions and reduce the time between conviction and execution, which usually exceeds 10 years”  (Westhead, 2005).  The Republican members in Congress are also taking a close examination on extending the range of the death penalty considering first degree murder and acts of terrorism. ” Separate measures are under way to increase the range of crimes punishable by death. One proposal would extend the death penalty currently reserved for first-degree murder to offences such as conspiracy to commit terrorist acts and certain gang-related crimes.”  (Westhead, 2005).

Not every one agrees that the Death Penalty is an effective deterrance and Decker produced an interesting piece of research in the Criminal Justice Journal ” The deterrence measure (executions) made no contribution to the variation in homicide rates. Thus, the authors conclude that there is no deterrent effect for the death penalty on homicides in Illinois.”  (Decker & Kohfeld, 1984).

A Gallup poll illustrates that still some 65% of Americans continue to support the use of a death penalty in the USA.  Americans continue to support the fact that the death penalty remains an adequate line of defence and detterant against the more radical emements that would seek to harm society ” However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.”  (Newport, 2009)

In recent years more religious bodies have become involved in the death penalty debate.  The Gallup poll conducted a number of surveys in order to ascertain the views of a number of different religious bodies.  Amongst these were American Christians, Jews, Hispanic, and Buddhists,  to name but a few.  It was discovered that those Americans who attend religious services on a regular basis.  But much more likely to be opposed to the death penalty.  Although a large majority of churchgoers did support the death penalty.  Those individuals who identified as being Protestants were more likely to support the death penalty.  Those with no religious preferences, some 71% of the groups surveyed, supported the use of the death penalty.

Another poll conducted by the research firm.  We was aimed at the Roman Catholic church members.  The report revealed that of the 48% of those surveyed supported the death penalty does voicing opposition cited the need for opposing the death penalty was out of ‘respect for life’.  ” A national poll of Mainline Protestant clergy conducted in 2008 by Public Religion Research, LLC, revealed that 66% of mainline clergy oppose the death penalty while only 27% support it. The level of opposition to capital punishment varies significantly based on denomination. Eighty-two percent of ministers from the Universal Church of Christ (UCC) and 81% of Episcopal ministers oppose capital punishment. However, only 53% of American Baptist ministers oppose the death penalty. The survey also found that Mainline Protestant ministers are less likely to speak out on controversial social issues. Twenty-six percent of Mainline Protestant clergy state that they often discuss the issue of capital punishment.”  (DIPC, 2010).

One interesting observation from the Gallup polls is that in excess of 70% of the people surveyed were in support of the return for hanging with regard to first degree murders. Hanging being one of the cruellest forms of execution  and as witnessed on TV and other live media when Sadaam Hussein and his henchmen were hanged by the Iraqi’s.  This provides some indication of the strength of public opinion in the USA over serious violent crimes ” Public opinion polls show that over 70% of the adult population would like to see a return of hanging for first degree murder. This is almost identical to the level of support in the U.S. The Roman Catholic Church and liberal churches wish to continue the present status; conservative Protestant denominations are overwhelmingly in favour of a return to capital punishment. However, they do not appear to be aggressively promoting the death penalty. Their effort seems to be directed mainly at preventing same-sex couples from marrying, limiting abortion access, and maintaining soliciting for prostitution and marijuana use as criminal acts .”  (Robinson, 2009)

The Gallup poll has also clearly indicated that it is the Republican party at 81% who are clearly the strongest supporters of retaining the death penalty in the USA.

Conclusions

If any change in the overall stance is going to happen to revision of the death penalty in the USA it is most likely going to happen during a democratic government.  Given the USA’s current international war on Terrorism in Afghanistan, Iraq and other regions in the world, it is considered that this is unlikely to happen in the very near future. The current Obama administration has too many other pressing issues to deal with like Health Reform, the oil spill in the Gulf,  the world financial and economic situation and problems in South East Asia.  The Republicans are somewhat galvanised in their approach and this was amply demonstrated during the years of the Bush administration.

America is also under threat from its border controls, particularly with that of Mexico and the vulerability to illegal immigrants, many of which are criminals, equally drug cartels and importation of terrorists from Mexico with illegal arms shipments.  The death penalty provides some means of a viable detterant for those involved in serious crime and equally provides some added confidence to the armed border patrols.

Works Cited

Adams, E. J. (1991). Loss of Innocence: A True Story of Juvenile Murder [Paperback]. In E. J. Adams, Loss of Innocence: A True Story of Juvenile Murder [Paperback] (p. 275). London UK: Avon Books.

Bureau of Justice Statistics. (2010). Bureau of Justice Statistics . Retrieved 6 27, 2010, from The pros and cons of capital punishment in the USA: http://bjs.ojp.usdoj.gov/

Decker, S. H., & Kohfeld, C. W. (1984). Deterrence Study of the Death Penalty in Illinois, 1933-1980 . Criminal Justice Journal, Vol 12 issue 4 , 11.

DIPC. (2010). Death Penalty information Centre . Retrieved 6 27, 2010, from DIPC: http://www.deathpenaltyinfo.org/religion-and-death-penalty

Murphy, R. G. (2010). Voices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment [Paperback]. In R. G. Murphy, Voices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment [Paperback] (p. 328). Boston MA: Vandeplas Publishing .

Newport, F. (2009, 10 13). In U.S., Two-Thirds Continue to Support Death Penalty . Retrieved 6 27, 2010, from Gallup: http://www.gallup.com/poll/123638/in-u.s.-two-thirds-continue-support-death-penalty.aspx

Robinson, B. A. (2009, 12 7). Capital Punishment . Retrieved 6 27, 2010, from Religious Tolerance.org: http://www.religioustolerance.org/execut3.htm

Westhead, J. (2005, 12 2). US support for death penalty wanes . Retrieved 6 27, 2010, from BBC News Washington: http://news.bbc.co.uk/2/hi/americas/4491106.stm

[1] Capital punishment 2005, Department of Justice, Bureau of Justice Statistics.

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The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides

Posted on Jun 04, 1998

  • Executive Summary
  • The Sounds of Racism
  • The Raw Data
  • Taking Into Account the Severity of Murders
  • Mid-Range Cases Versus Extreme Cases
  • Black Defendants and the Race of the Victims
  • Philadelphia Study: Conclusions
  • National Patterns of Race Discrimination
  • Figure 7: Statistical Data in Death Penalty States Showing a Risk of Racial Discrimination 23
  • No Relief in the Courts
  • Study II: The Race of the Decision-Makers
  • Racial Bias Permeates the System
  • Public Reaction
It is tempt­ing to pre­tend that minori­ties on death row share a fate in no way con­nect­ed to our own, that our treat­ment of them sounds no echoes beyond the cham­bers in which they die. Such an illu­sion is ulti­mate­ly cor­ro­sive, for the rever­ber­a­tions of injus­tice are not so eas­i­ly confined.

–Former U.S. Supreme Court Justice William Brennan ( 1987 )

Executive Summary Up

The results of two new studies which underscore the continuing injustice of racism in the application of the death penalty are being released through this report. The first study documents the infectious presence of racism in the death penalty, and demonstrates that this problem has not slackened with time, nor is it restricted to a single region of the country. The other study identifies one of the potential causes for this continuing crisis: those who are making the critical death penalty decisions in this country are almost exclusively white.

From the days of slavery in which black people were considered property, through the years of lynchings and Jim Crow laws, capital punishment has always been deeply affected by race. Unfortunately, the days of racial bias in the death penalty are not a remnant of the past.

Two of the country’s foremost researchers on race and capital punishment, law professor David Baldus and statistician George Woodworth, along with colleagues in Philadelphia, have conducted a careful analysis of race and the death penalty in Philadelphia which reveals that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant. The data were subjected to various forms of analysis, but the conclusion was clear: blacks were being sentenced to death far in excess of other defendants for similar crimes.

A second study by Professor Jeffrey Pokorak and researchers at St. Mary’s University Law School in Texas provides part of the explanation for why the application of the death penalty remains racially skewed. Their study found that the key decision makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.

These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years. Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. The gravity of the close connection between race and the death penalty is shown when compared to studies in other fields. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. The latter evidence has produced enormous changes in law and societal practice, while racism in the death penalty has been largely ignored.

Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief on the grounds that patterns of racial disparities are insufficient to prove racial bias in individual cases. With the single exception of Kentucky which recently passed a version of the Racial Justice Act, legislatures have turned their back on corrective measures. Despite the prior example of legislation in response to similar discrimination in such areas as employment and housing, legislatures on both the federal and state level have failed to pass civil rights laws regarding the death penalty for fear of stopping capital punishment entirely. And so, the sore festers even as executions accelerate and appeals are curtailed.

The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and in the devoting of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks. Such a system of injustice is not merely unfair and unconstitutional—it tears at the very principles to which this country struggles to adhere.

– U.S. Supreme Court Justice William Brennan ( 1987 ) [ 2 ]

The Sounds of Racism Up

Blatant racism is seen and heard too often in courtrooms around the country. In death penalty cases, the use of derogatory slurs kindles the flames of prejudice and allows the jury to judge harshly those they wish to scapegoat for the problem of crime. A few examples illustrate the intensity of this racism:

  • “One of you two is gonna hang for this. Since you’re the nigger, you’re elected.”3 These words were spoken by a Texas police officer to Clarence Brandley, who was charged with the murder of a white high school girl. Brandley was later exonerated in 1990 after ten years on death row.
  • In preparing for the penalty phase of an African-American defendant’s trial, a white judge in Florida said in open court: “Since the nigger mom and dad are here anyway, why don’t we go ahead and do the penalty phase today instead of having to subpoena them back at cost to the state.”4 Anthony Peek was sentenced to death and the sentence was upheld by the Florida Supreme Court in 1986 reviewing his claim of racial bias.
  • A prosecutor in Alabama gave as his reason for striking several potential jurors the fact that they were affiliated with Alabama State University — a predominantly black institution. This pretext was considered race neutral by the reviewing court. 5
  • During the 1997 election campaign for Philadelphia’s District Attorney, it was revealed that one of the candidates had produced, as an Assistant D.A., a training video for new prosecutors in which he instructed them about whom to exclude from the jury, noting that “young black women are very bad” on the jury for a prosecutor, and that “blacks from low-income areas are less likely to convict.”6 The training tape also instructed the new recruits on how to hide the racial motivation for their jury strikes.
  • In Missouri, Judge Earl Blackwell issued a signed press release about his judicial election announcing his new affiliation with the Republican Party while presiding over a death penalty case against an unemployed African-American defendant. The press release stated, in part: “[T]he Democrat party places far too much emphasis on representing minorities … people who dont’ (sic) want to work, and people with a skin that’s any color but white … .”7 The judge denied a motion to recuse himself from the trial. The defendant, Brian Kinder, was convicted and sentenced to death, and Missouri’s Supreme Court affirmed in 1996.8

These examples are symbolic of a more systemic racism, and they provide a sense of how damaging racial prejudice and insensitivity can be when someone is facing execution. Empirical studies which provide the national evidence of racism in capital punishment are critical to understanding that this problem goes far beyond individual examples of prejudice.

The Raw Data Up

The first step in determining the presence of racial discrimination in the death penalty is to look at the raw data: from among the eligible homicides, how often are black defendants sentenced to death and how often are others sentenced to death?

The raw data of death sentences in Philadelphia between 1983 and 1993, provide the first piece of disturbing evidence that race discrimination may be operating. The rate at which eligible black defendants were sentenced to death was nearly 40% higher than the rate for other eligible defendants. A sentencing rate is simply a ratio of the number of death sentences for a particular group compared to the total number of cases of that group which would be eligible for a death sentence. In the chart below, a death sentencing rate of .18 for blacks means that for every 100 eligible black defendants, 18 will be sentenced to death. For other defendants, only 13 out of 100 will be similarly sentenced.

Taking Into Account the Severity of Murders Up

In order to determine whether race influences death sentencing, the researchers turned to the same techniques used in medical research to determine whether cigarette smoking causes cancer, or frequent exercise and good diet reduces heart attacks. Murder cases become death eligible through the existence of certain aggravating factors which make one murder “worse” than another. In deciding whether the death penalty should be sought, the prosecutor is supposed to consider the presence of such factors as whether a murder was committed with grave risk to the life of others, whether the murder was committed in the course of another serious crime such as robbery or rape, whether torture was used in the commission of the murder, or whether the defendant had a significant violent history. The jury is similarly told to consider such factors when deciding whether the sentence should be life or death, once a guilty verdict is rendered.12

Through an analysis of murders in which the death penalty could have been sought, it is possible, through an analysis of the defendants that were and were not sentenced to death, to assign a predictive score, or coefficient, to various aggravating factors to measure how heavily each influences the likelihood of a death sentence. The researchers screened hundreds of factors, statutory and non-statutory, to develop models to explain how the system works. All statutory factors, and those non-statutory factors which significantly correlated with the outcome were included.

Comparing the coefficients permits an average assessment of how much reliance was placed on the factor by the decision-makers. For example, the fact that the murder was committed in the course of another felony has less impact than the fact that the defendant caused great harm, fear or pain. Statistically, in this study committing another felony had a relative predictive value of 0.8. On the other hand, if the murder was accompanied by torture, that factor was very significant and registered a predictive value of 1.9. A murder committed with grave risk of death to others had a relatively high predictive value of 1.5. A factor which had no apparent effect would have a value of 0. The study looked at a large class of such variables.

The race of the defendant is not supposed to influence whether a person is sentenced to death, but in Philadelphia it clearly does. (See Chart below.) Murders by blacks are treated as more severe and “deserving” of the death penalty because of the defendant’s race. Being a black defendant merits a score of 1.4 in predicting whether a death sentence will ultimately result. This extra burden for black defendants is comparable to such legitimate aggravating factors as torture or “causing great harm, fear or pain,” which earned scores of 1.9 and 1.0 respectively, in predicting the sentence. Stated differently, in Philadelphia, the capital sentencing statute has operated as though being black was not merely a physical attribute, but as if it were one of the most important aggravating factors actually justifying the death penalty.

The race of the defendant is a much stronger predictor that a case will result in a death sentence than the fact that the crime was committed along with another felony (0.8) or that the defendant killed with multiple stab wounds (0.9). Either when the prosecutor decides to seek the death penalty in a particular case, or when the jury decides that death is the appropriate sentence, on average, black defendants are considered “worse,” regardless of the other factors in their case.

Mid-Range Cases Versus Extreme Cases Up

Race does not affect all cases equally. Notorious serial killers like Ted Bundy or John Wayne Gacy, both white, are nearly certain to receive the death penalty regardless of their race. In the most highly aggravated cases, the fact that the defendant is black is less of a factor pushing a case toward a death sentence. The same can be said for cases of very low severity: race is less likely to be a factor in cases where there is little inflammatory evidence.

But in the “mid-range” of severity (or aggravation), race plays a very significant role. When cases were ranked from 1 to 8 in increasing severity, cases in categories 1 (least severe) and 8 (most severe) showed little or no discrimination against black defendants. But in the middle categories 3 through 7, the disproportionate treatment of black defendants, as compared to all other defendants, was quite pronounced. For example, in cases of level 5 severity, 25% of the black defendants received the death penalty, but only 5% of the other defendants received death, and the difference between these sentencing rates is 20 percentage points. At level 6 severity, the difference was 15 percentage points, and at level 4 severity, the difference in death sentencing rates was 11 percentage points higher for black defendants. These results are summarized in the graph below.

In other areas of society, such as employment or housing, racial disparities similar to those shown in this death penalty study have raised deep concerns and have prompted civil rights legislation to protect the rights of minorities.13 But with the death penalty, this clear evidence of racial bias has gone uncorrected.

Black Defendants and the Race of the Victims Up

Another measure of race’s impact on the death penalty is the combined effect of the race of the defendant and the race of the victim. In the Philadelphia study, the racial combination which was most likely to result in a death sentence was a black defendant with a nonblack victim , regardless of how severe the murder committed. Black-on-black crimes were less likely to receive a death sentence, followed by crimes by other defendants, regardless of the race of their victims.

As noted above, in cases deemed to be least severe and those found to be most severe, the connection between race and the likelihood of a death sentence tends to lessen. For example, few defendants of any race are likely to get the death penalty in a case involving defendants with no prior record and where the killing may have been accidental. But for the bulk of crimes which are in the mid-level of severity, blacks who kill nonblacks are more likely to receive the death penalty than blacks who kill blacks, and they have a death sentencing rate much larger than the rate for defendants of other races who commit similarly severe murders of black victims.

It is important to note that these mid-range cases are precisely the ones in which prosecutors and jurors have the most discretion on seeking and imposing the death penalty. And when discretion is more prevalent, race may more easily become the deciding factor in who lives and who dies.

These results are summarized in the graph below. Reading the graph from left to right, black defendants, regardless of their victims’ race, are consistently more likely to receive a death sentence than other defendants, and this holds true to varying degrees throughout the increasing levels of crime severity. Similarly, black victim cases are less likely to receive the death penalty, regardless of the race of the defendant.

Philadelphia Study: Conclusions Up

After controlling for levels of crime severity and the defendant’s criminal background, the average death sentencing rates in Philadelphia were .18 for black defendants and .13 for other defendants, which amounts to a 38% higher rate for blacks (coincidentally, these rates were approximately the same as the unadjusted rates on p.8). The disparities for various racial combinations of defendant and victim were even wider and are shown in the table below.

Whichever measures the researchers employed, the statistics pointed to the same conclusion: black defendants on average face a distinctly higher risk of receiving a death sentence than all other similarly situated defendants. The various independent tests were so thoroughly consistent that they pointed to race discrimination as the underlying cause. The researchers stated: “In the face of these results, we consider it implausible that the estimated disparities are a product of chance or reflect a failure to control for important omitted case characteristics… . In short, we believe it would be extremely unlikely to observe disparities of this magnitude and consistency if there were substantial equality in the treatment of defendants in this system.”14

For those on death row from Philadelphia, these numbers translate into a harsh and deadly reality: if the death penalty were applied to blacks as it is to others, there would be far fewer blacks facing execution.

death penalty reaction paper

National Patterns of Race Discrimination Up

When people of color are killed in the inner city, when homeless people are killed, when the “nobodies” are killed, district attorneys do not seek to avenge their deaths. Black, Hispanic, or poor families who have a loved one murdered not only don’t expect the district attorney’s office to pursue the death penalty—which, of course, is both costly and time consuming—but are surprised when the case is prosecuted at all. - Sister Helen Prejean, CSJ 15

If the racial disparities documented in the study of capital cases in Philadelphia were unique, they might be dismissed as simply a local problem requiring a local solution. But such racial patterns have appeared in study after study all over the country and over an extensive period of time.

In the late 1980s, Congress asked the General Accounting Office (GAO) to review the empirical studies on race and the death penalty which had been conducted up to that time. The agency reviewed 28 studies regarding both race of defendant and race of victim discrimination. Their review included studies utilizing various methodologies and degrees of statistical sophistication and examined such diverse states as California, Florida, Georgia, Illinois, Kentucky, Louisiana, Mississippi, New Jersey, and Texas. Their conclusion in 1990, based on the vast amount of data collected, was unequivocal:

In 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. The finding held for high, medium, and low quality studies. 16

One of the most sophisticated of the studies reviewed by the GAO was the study of race and the death penalty in Georgia. This study looked at 2400 cases processed in Georgia over a seven year period. It showed that, even when controlling for the many variables which might make one case worse than another, defendants whose victims were white, faced, on average, odds of receiving a death sentence that were 4.3 times higher than similarly situated defendants whose victims were black.17 The study controlled for hundreds of variables such as the level of violence in the crime and the prior criminal record of the defendant.

The significance of this racial disparity is highlighted by comparing it to a smoker’s increased odds of dying from coronary artery disease. A pivotal study found their odds of dying were approximately 1.7 times higher than for non-smokers of similar ages,18 a factor smaller than that linking race and the death penalty. Such statistical evidence about the dangers of smoking led the Surgeon General to conclude that “cigarette smoking is a cause of coronary heart disease,”19 which, in turn, helped trigger legislation and significant reform. Yet the correlation between race and the death penalty is much stronger and has been met with virtual silence.

The study of racial disparities in Georgia was the basis for the most important case brought before the U.S. Supreme Court on the issue of race and the death penalty, McCleskey v. Kemp (1987).20 The research was conducted by David Baldus, Professor of Law at the University of Iowa College of Law, and George Woodworth, Professor of Statistics also at the University of Iowa, both of whom participated in the Philadelphia study discussed above. For their work in what has become known as “the Baldus study,” these researchers were awarded the Harry Kalven Prize for distinguished scholarship by the Law and Society Association.

In a recent report prepared for the American Bar Association, Professors Baldus and Woodworth have expanded on the GAO’s review of studies on race discrimination in capital cases.21 They found that there are some relevant data in three-quarters of the states with prisoners on death row. In 93% of those states, there is evidence of race-of-victim disparities, i.e., the white race of the person murdered correlated with whether a death sentence will be given in a particular case. In nearly half of those states, the race of the defendant also served as a predictor of who received a death sentence. The disparities in nine states (CA, CO, GA, KY, MS, NJ, NC, PA and SC) are particularly notable because of their reliance on well-controlled studies.

These disparities reveal a disturbing and consistent trend indicating race-of-victim discrimination. For example, in Florida, a defendant’s odds of receiving a death sentence are 4.8 times higher if the victim was white than if the victim is black in similarly aggravated cases. In Illinois, the multiplier is 4, in Oklahoma it is 4.3, in North Carolina 4.4, and in Mississippi it is 5.5.22 The table below shows how frequently race-of-victim discrimination has been detected, as well as the states where race-of-defendant disparities have been shown.

Figure 7: Statistical Data in Death Penalty States Showing a Risk of Racial Discrimination 23 Up

Only studies whose results were statistically significant, or where the ratio between death sentencing (or prosecutorial charging) rates (e.g., between white victim and black victim cases) was 1.5 or larger and with a sample size of at least 10 cases in each group, were included. The disparities in nine states (CA, CO, GA, KY, MS, NJ, NC, PA and SC) are based on well-controlled studies. The results in the other states are from less well-controlled studies and are only suggestive.

All of the race of victim disparities except one (Delaware) were in the direction of more death sentences in white victim cases.

All of the race of defendant disparities except two (Florida and Tennessee) were in the direction of more death sentences for black defendants.

A particularly egregious example of race of victim discrimination was revealed in a recent review of the cases from Kentucky’s death row. Researchers at the University of Louisville had found in 1995 that, as in other states, blacks who killed whites were more likely to receive the death penalty than any other offender-victim combination.24 In fact, looking at the makeup of Kentucky’s death row in 1996 revealed that 100% of the inmates were there for murdering a white victim, and none were there for the murder of a black victim, despite the fact that there have been over 1,000 African-Americans murdered in Kentucky since the death penalty was reinstated.25This gross disparity among capital cases sends a message that the taking of a white life is more serious than the taking of a black life, and that Kentucky’s courts hand out death sentences on that basis.

This biased use of the death penalty for the murder of those in the white community, but not those in the black community, led to the introduction of legislation allowing consideration of such patterns of racial disparities. The bill, referred to as the “Racial Justice Act,” failed in the Kentucky legislature in 1996,26 but was passed in 1998. It will permit race-based challenges to prosecutorial decisions to seek a death sentence.

No Relief in the Courts Up

Despite these pervasive patterns implying racial discrimination, courts have been closed to challenges raising this issue. In McCleskey v. Kemp, the U.S. Supreme Court held that the defendant had to show that he was personally discriminated against in the course of the prosecution. “Merely” showing a disturbing pattern of racial disparities in Georgia over a long period of time was not sufficient to prove bias in his case.27

The federal courts have taken their cue from McCleskey and have not granted relief based on a racial application of the death penalty in any case.28 When such claims of racial bias are raised in civil rights suits alleging employment or housing discrimination, civil rights legislation instructs the courts to employ a more commonsensical burden of proof and provides a chance for relief.29 In criminal cases, however, the courts require the defense to “get inside” the mind of the prosecutor or jury and show purposeful race discrimination directed at the defendant, an almost impossible task.

Study II: The Race of the Decision-Makers Up

The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups. -Rev. Jesse Jackson (1996) 30

As the analysis above indicates, racially biased decisions can readily enter the criminal justice system through the discretion given to prosecutors to selectively seek the death penalty in some cases but not others. The GAO review of race discrimination noted that “race of victim influence was found at all stages of the criminal justice process” and that “[t]he evidence for the race of victim influence was stronger for the earlier stages of the judicial process (e.g., prosecutorial decision to charge the defendant with a capital offense, decision to proceed to trial rather than plea bargain) than in later stages.”31

The death penalty could be sought in far more cases than it actually is, and prosecutors use a variety of factors to determine which cases are deserving of the state’s worst punishment. That discretion more likely results in capital prosecutions when the victim in the underlying murder is white, and in some states, when the defendant is black. Except for extreme cases, as when a black police officer is killed, the murder of people of color is not treated as seriously as the murder of white people.

One of the likely reasons for this discrepancy is that almost all the prosecutors making the key decision about whether death will be sought are white . According to a new study soon to be published in the Cornell Law Review, only 1 percent of the District Attorneys in death penalty states are black. This staggering imbalance in the racial makeup of the life and death decision-makers may partially explain the persistent racial imbalance in the use of the death penalty.

Professor Jeffrey Pokorak of St. Mary’s University School of Law collected data regarding the race and gender of the government officials empowered to prosecute criminal offenses, and in particular, capital offenses from all 38 states that use the death penalty. The study was concluded in February, 1998.

It revealed that only 1% of the District Attorneys in death penalty states in this country are black and only 1% are Hispanic. The remaining 97.5% are white, and almost all of them are male. The chart below Fig. 9) summarizes the racial findings of Professor Pokorak’s study.

The implications of this study go far beyond the shocking numbers and racial isolation of those in this key law enforcement position. When a prosecutor is faced with a crime in his community, he often consults with the family of the victim as to whether the death penalty should be sought. If the victim’s family is prominent, white, and likely to support him in his next election, there may be a greater willingness to expend the extensive financial resources and time which a death penalty prosecution will take. Justice Harry A. Blackmun

The way that racial bias can play out in practice is illustrated by one of the key death penalty jurisdictions in the country: Georgia’s Chattahoochee Judicial District, which has sent more people to death row than any other district in the state. In a recent law review article, Stephen Bright, of the Southern Center for Human Rights in Atlanta, described the prosecutor’s practice there:

  • [A]n investigation of all murder cases prosecuted … from 1973 to 1990 revealed that in cases involving the murder of a white person, prosecutors often met with the victim’s family and discussed whether to seek the death penalty. In a case involving the murder of the daughter of a prominent white contractor, the prosecutor contacted the contractor and asked him if he wanted to seek the death penalty. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know. He obtained the death penalty at trial. He was rewarded with a contribution of $5,000 from the contractor when he successfully ran for judge in the next election. The contribution was the largest received by the District Attorney. There were other cases in which the District Attorney issued press releases announcing that he was seeking the death penalty after meeting with the family of a white victim. But prosecutors failed to meet with African-Americans whose family members had been murdered to determine what sentence they wanted . Most were not even notified that the case had been resolved. As a result of these practices, although African-Americans were the victims of 65% of the homicides in the Chattahoochee Judicial District, 85% of the capital cases were white victim cases.33

Racial Bias Permeates the System Up

Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die. - Justice Harry Blackmun, 1994 34

Prosecutors not only decide who should be charged with a particular level of offense, they also have a significant impact on the way the trial is conducted. When a prosecutor refers to an Hispanic defendant as “a chili-eating bastard,”35 as happened in a Colorado death penalty case, it sets a tone of acceptance of racial prejudice for the entire trial. Similarly, the selection of juries is an essential part of this process, and some prosecutors have made a practice of eliminating blacks from their prospective juries, thereby increasing the likelihood of a race-based decision.

Jack McMahon, for example, was an Assistant District Attorney for many years in Philadelphia. During his recent campaign for the District Attorney’s position, it was revealed that he carefully instructed new prosecutors in his office on the importance of keeping many blacks off high level criminal cases. His training video for prosecutors stated that “young black women are very bad” on the jury for a prosecutor, and that “blacks from low-income areas are less likely to convict.”36

If a new prosecutor did not follow his directives, he or she faced dismissal: “And if you go in there and any one of you think you’re going to be some noble civil libertarian and try to get jurors [who say they’ll be fair], that’s ridiculous. You’ll lose and you’ll be out of the office; … .”37

His tape urged his fellow prosecutors to pick juries that they knew would be unfair: “[T]he only way you’re going to do your best is to get jurors that are as unfair and more likely to convict than anybody else in that room.”38

Mr. McMahon, himself, prosecuted 36 murder cases and some of those defendants are presently on death row in Pennsylvania. In selecting juries, McMahon practiced what he preached. In a review of 16 first-degree murder cases prosecuted by McMahon, black jurors were struck four times as often as other jurors, and black women jurors were struck six times as often as non-African-American males.39

But McMahon was certainly not alone in this practice of racial discrimination in jury selection. Statistics from the race study in Philadelphia discussed above showed that from 1983 to 1993 prosecutors struck 52% of all black potential jurors, but only 23% of other potential jurors.

These same practices are common in other jurisdictions. According to a recent federal court decision in Alabama reviewing a death penalty case, the Tuscaloosa District Attorney’s Office had a “standard operating procedure … to use the peremptory challenges to strike as many blacks as possible from the venires in cases involving serious crimes.” 40

In the Chattahoochee Judicial District of Georgia, described above, prosecutors used 83% of their peremptory jury strikes against African-Americans. Six black defendants were tried by all-white juries.41

In the Ocmulgee Judicial District of Georgia, District Attorney Joseph Briley tried 33 capital cases between 1974 and 1994. Twenty-four were against black defendants. In cases in which the defendant was black and the victim was white, Briley used 96 out of his 103 jury challenges against African-Americans.42

In Chambers County, Alabama, the prosecutor kept lists dividing prospective jurors into four categories: “strong,” “medium,” “weak,” and “black.” Such a process led to striking 26 African-American jurors, resulting in three all-white juries in the death penalty prosecution of Albert Jefferson, a black defendant whose victim was white. An Alabama court found that no racial discrimination had occurred.43

The U.S. Supreme Court in Batson v. Kentucky ruled that it is unconstitutional to strike jurors solely on the basis of race. Prosecutors, however, sometimes circumvent this ruling by providing race-neutral reasons as a pretext for eliminating unwanted black jurors. In Philadelphia, Assistant D.A. Jack McMahon prepared his new prosecutors for just such manipulation in his training tape mentioned above:

So if—let’s say you strike three blacks to start with, the first three people. And then it’s like the defense attorney makes an objection saying that you’re striking blacks. Well, you’re not going to be able to go back and say, oh— and make up something about why you did it. Write it down right then and there… . And question them [the black jurors], say, “Well, he had a —had a” — “Well the woman had a kid about the same age as the defendant and I thought she’d be sympathetic to him” or “She’s unemployed and I just don’t like unemployed people” … .

So sometimes under that line you may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race .45

In another jurisdiction, prosecutors followed McMahon’s strategy precisely. Their spurious reasons for excluding black jurors were exposed by the Florida Supreme Court in reviewing the death penalty conviction of Robert Roundtree. At trial, the judge simply accepted the state’s explanations at face value as the prosecutor eliminated ten black jurors from the jury pool. The first two black jurors were dismissed because they were “inappropriately dressed” and one had on “pointy New York shoes.” At the same time, a similarly dressed white juror was accepted. Another black juror was rejected because she was thirty years old and unemployed, but a white unemployed female was accepted. Three blacks were excused, in part, because they were single, but five white single jurors were accepted. And the reason given for striking another black woman was that the state preferred a predominantly male jury, although the state had accepted 13 white females, 6 of whom sat on the final jury. The reviewing court found that “the proffered reasons were a pretext for racial discrimination” and reversed the conviction.46

Prosecutors are not alone in acting out of racial prejudice. Judges, defense attorneys and jurors can also display harmful racial bias. It is the defendant, however, who suffers the consequences. In the death penalty trial of Ramon Mata in Texas, the prosecutor and the defense attorney agreed to excuse all prospective minority race jurors, thereby ensuring an all white jury. The U.S. Court of Appeals for the Fifth Circuit found this to be harmless error.47

In the Georgia trial of Wilburn Dobbs, a black man charged with the murder of a white man, both the judge and his attorney referred to Dobbs as a “colored boy.” The defense attorney expressed his opinion that “blacks are uneducated and would not make good teachers, but do make good basketball players,” and referred to the black community in Chattanooga as “black boy jungle.”48 Dobbs was sentenced to death, and his conviction has been upheld by the Georgia courts.

In Utah, African-American William Andrews was executed despite the presence of a note found by a juror depicting a stick figure on a gallows with the inscription: “Hang the Nigger’s (sic).” Even after seeing this evidence of racial prejudice within the all-white jury, the trial judge never sought to determine who wrote the note or how many jurors saw it.49

William Henry Hance, a mentally impaired black man was sentenced to death in Georgia despite the fact that one of the jurors said she did not vote for death. The only black person on the jury stated that she had voted for a life sentence because of Hance’s mental condition, but her vote was ignored. In the courtroom, she was intimidated against speaking out, but she later revealed her vote and the strong racial overtones in the jury room. Another juror signed an affidavit confirming the black juror’s story, but Mr. Hance was executed anyhow in 1994.50

Public Reaction Up

By reserving the penalty of death for black defendants, or for the poor, or for those convicted of killing white persons, we perpetrate the ugly legacy of slavery— teaching our children that some lives are inherently less precious than others. - Rev. Joseph E. Lowery, former President, Southern Christian Leadership Conference, 1989 51

After the Civil War and the emancipation of the slaves, lynchings of black people were common in the U. S. From the late 1800s, at least 4,743 people were killed by lynch mobs, with 90% of the lynchings occurring in the South, and most of the victims being black people.52 Lynchings were praised as necessary and just, and even some governors deferred to the public demand for vengeance. Georgia populist Tom Watson observed that “Lynch law is a good sign; it shows that a sense of justice yet lives among the people.”53

Revulsion at the spectacle and gross injustices of the lynching era eventually led to the formation of the National Association for the Advancement of Colored People and then to the demise of lynching.54 But the disparities evident in today’s death penalty indicate that prejudice and racism remain a potent force infecting our system of justice.

These racial disparities in capital punishment have drawn increasingly critical reaction from legal and civil rights groups both nationally and internationally. After the Supreme Court narrowly rejected a challenge to the racially biased application of the death penalty in Georgia,55 civil rights groups and many newspaper editorials called for the passage of the Racial Justice Act to remedy this injustice on a national level. Although this proposed legislation was passed by the U.S. House of Representatives in 1994 and 1990, it was ultimately defeated on the theory that such a racial inquiry would “abolish” the death penalty. Only Kentucky has passed similar legislation on the state level.

As a result of this and other inequities in the administration of capital punishment, the ABA, which had earlier recommended the passage of the Racial Justice Act,56 has called for a complete moratorium on executions until such problems can be adequately addressed. Other bar associations such as the Pennsylvania Bar, the Ohio Bar, the Chicago Council of Lawyers, the Massachusetts Bar and the Philadelphia Bar have either endorsed the ABA’s resolution or passed similar resolutions. Over 100 other organizations have also endorsed motions to stop executions, at least until a greater sense of justice can be restored to the process.57

Evidence of racial discrimination in the U.S. death penalty system has attracted worldwide attention. In 1996, the International Commission of Jurists, whose members include respected judges from around the world, visited the United States and researched the use of the death penalty. Their report was sharply critical of the way the death penalty is being applied, particularly in regards to race: “The Mission is of the opinion that … the administration of capital punishment in the United States continues to be discriminatory and unjust — and hence ‘arbitrary’ —, and thus not in consonance with Articles 6 and 14 of the Political Covenant and Article 2(c) of the Race Convention.”58

In a March, 1998 decision,59 the Inter-American Commission on Human Rights concluded that the U.S. had violated international law and should compensate the relatives of William Andrews, who was executed in Utah in 1992, because of racial bias in his case (discussed above).

And most recently, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions filed a report with the U.N. Commission on Human Rights after his visit to the U.S. stating that “race, ethnic origin and economic status appear to be key determinants of who will, and will not, receive a sentence of death.”60

In Philadelphia, the Secretary General of Amnesty International criticized Pennsylvania’s death penalty as “one of the most racist and unfair in the U.S.”61 Hours after his speech, the Philadelphia Bar voted in favor of a resolution calling for a moratorium on the death penalty in that state. The Governor’s office responded by pointing out that the only two persons executed in Pennsylvania in recent times were both white. However, these men were the exception, having been executed before others only because they waived their appeals. The overwhelming majority of those on the state’s death row are black, and 84% of those on death row from Philadelphia are black.62

Religious opposition to the death penalty has also cited the racial unfairness in its application. Recently, all the Catholic Bishops in Texas signed a statement calling for an end to the death penalty, noting: “The imposition of the death penalty has resulted in racial bias. In fact, the race of the victim has proven to be the determining factor in deciding whether to prosecute capital cases.”63 Similar concerns have been voiced by the National Conference of Catholic Bishops and the leaders of other denominations.

The public in this country is very aware of the role race plays in the death penalty. A recent poll by Newsweek Magazine revealed that about half of all Americans believe that a black person is more likely to receive the death penalty than a white person for the same crime.65 When such public reaction will result in a challenge to this injustice is not clear. Until then, it remains a serious source of division among the races and an embarrassment to the U.S.’s pursuit of international human rights.

Conclusion Up

Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. - Justice William Brennan, 1987 66

The influence of race on the death penalty is pervasive and corrosive. In other areas of the law, protections have been built in to limit the effects of systemic racism when the evidence of its impact is clear. With the death penalty, however, such corrective measures have been blocked by those who claim that capital punishment would bog down if racial fairness was required. And so, the sore festers.

The new studies revealed through this report add to an overwhelming body of evidence that race plays a decisive role in the question of who lives and dies by execution in this country. Race influences which cases are chosen for capital prosecution and which prosecutors are allowed to make those decisions. Likewise, race affects the makeup of the juries which determine the sentence. Racial effects have been shown not just in isolated instances, but in virtually every state for which disparities have been estimated and over an extensive period of time.

Those who die because of this racism are not the kind of people who usually evoke the public’s sympathy. Many have committed horrendous crimes. But crimes no less horrendous are committed by white offenders or against black victims, and yet the killers in those cases are generally spared death. The death penalty today is a system which vents society’s anger over the problem of crime on a select few. The existing data clearly suggest that many of the death sentences are a product of racial discrimination. There is no way to maintain our avowed adherence to equal justice under the law, while ignoring such racial injustice in the state’s taking of life.

Note: All pho­tographs are print­ed with per­mis­sion. The pho­tographs of Justices Marshall and Blackmun are by Joseph Lavenburg (Natl. Geographic Soc.), and the pho­to­graph of Justice Brennan is by Ken Heinen, all from the Collection, The Supreme Court of the United States, cour­tesy The Supreme Court Historical Society. The oth­er pho­tographs were received with per­mis­sion from their subjects.

1 . J. Pokorak, Probing the Capital Prosecutor’s Perspective: Race and Gender of the Discretionary Actors, xx Cornell Law Review xxx ( 1998 ) (forth­com­ing).

2 . McCleskey v. Kemp, 481 U.S. 279 , 344 ( 1987 ) (Brennan, J., dissenting).

3 . N. Davies, White Lies: Rape, Murder, and Justice Texas Style 23 ( 1991 ) (quot­ing tes­ti­mo­ny in the appeal of Clarence Brandley).

4 . Peek v. Florida, 488 So. 2 d 52 , 56 (Fla.  1986 ).

5 . See B. Stevenson &  R. Friedman, Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice, 51 Wash. &  Lee L. Rev. 509 , 522 ( 1994 ).

6 . See M. Janofsky, Under Siege, Philadelphia’s Criminal Justice System Suffers Another Blow, New York Times, April 10 ,  1997 .

7 . See Appellant’s Brief, Missouri v. Kinder, No. 75082 (Missouri Supreme Court, 1996 ) for com­plete text of press release (on file with the Death Penalty Information Center).

8 . See State v. Kinder, 942  S.W. 2 d 313 (Mo.  1996 ).

9 . Speech at Annual Dinner in Honor of the Judiciary, American Bar Association, 1990 , quot­ed in The National Law Journal, Feb. 8 ,  1993 .

10 . T. Rosenberg, The Deadliest D.A., N.Y. Times Magazine, July 16 , 1995 , at  22 .

11 . This study was con­duct­ed by David Baldus, George Woodworth and oth­ers in 1996  –  98 . Statistical data is avail­able in part from the Death Penalty Information Center. The pre­lim­i­nary Philadelphia results report­ed here­in will be pub­lished in the Cornell Law Review in the Fall of  1998 .

12 . In Pennsylvania, the jury can arrive at a death sen­tence in two ways: a) it finds at least one aggra­vat­ing fac­tor, but no mit­i­gat­ing fac­tors, which then requires a manda­to­ry death sen­tence; or b) it finds at least one aggra­vat­ing fac­tor and one mit­i­gat­ing fac­tor, which then must be weighed to deter­mine the prop­er sen­tence. Pa. Stat. Ann. tit. 42 , § 9711 ©( 1 )(iv) (Purdon 1982 ).

13 . See Title VII of the Civil Rights Act of 1964 , 42 U.S.C. §§ 2000 e to e‑ 17 ( 1988 ) (equal employ­ment oppor­tu­ni­ties); 42 U.S.C. §§ 3601  –  3619 ( 1988 ) (fair housing).

14 . D. Baldus, et al., Race Discrimination and the Death Penalty in the Post Furman Era: An Empirical and Legal Overview, with Preliminary Findings from Philadelphia, xx Cornell Law Review xxx ( 1998 ) (forth­com­ing).

15 . H. Prejean, Would Jesus Pull the Switch?, Salt of the Earth, March/​April, 1997 , at  12 .

16 . U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities ( 1990 ), at 5 (empha­sis added) (here­after GAO Report).

17 . See D. Baldus, et al., Reflections on the ​ “ Inevitability” of Racial Discrimination in Capital Sentencing and the ​ “ Impossibility” of Its Prevention, Detection, and Correction, 51 Washington &  Lee Law Review 359 , 365 ( 1994 ).

18 . See S. Gross &  R. Mauro, Death &  Discrimination: Racial Disparities in Capital Sentencing 151 ( 1989 ).

19 . Id. at 172 , cit­ing U.S. Dept. of Health, Education &  Welfare, Smoking and Health, A Report of the Surgeon General, at 60 ( 1979 ).

20 . 481 U.S. 279 ( 1987 ).

21 . D. Baldus &  G. Woodworth, Race Discrimination in America’s Capital Punishment System Since Furman v. Georgia ( 1972 ): The Evidence of Race Disparities and the Record of Our Courts and Legislatures in Addressing This Issue ( 1997 ) (report pre­pared for the American Bar Association) (here­inafter ABA Report).

22 . See Gross &  Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stanford L. Rev. 27 , 78 , 96 ( 1984 ); S. Gross &  R. Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing 65  –  66 ( 1989 ).

23 . The sta­tis­ti­cal bases of many of these dis­par­i­ties can be found at D. Baldus, et al., Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts, 15 Stetson Law Review 133 , 159  –  60 , 163  –  64 ( 1986 ), and in the works of Gross &  Mauro, note 22 above; see also ABA Report, note 21 above, at Appendix A, for a cita­tion for each state study.

24 . T. Keil &  G. Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976  –  1991 , 20 American Journal of Criminal Justice 17 ( 1995 ).

25 . See Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7 , 1996 (cit­ing Univ. of Louisville study).

26 . See M. Chellgren, Race-bias Bill Rejected, Could Get New Hearing, The Kentucky Enquirer, Mar. 26 ,  1996 .

27 . See McCleskey v. Kemp, 481 U.S. 279 , 292 ( 1987 ).

28 . See J. Acker, et al., edi­tors, America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction 409 ( 1998 ) (arti­cle on race dis­crim­i­na­tion by D. Baldus &  G. Woodworth).

29 . See Title VII of Civil Rights Act of 1964 , note 13  above.

30 . J. Jackson, Legal Lynching: Racism, Injustice and the Death Penalty 97 ( 1996 ).

31 . GAO Report, note 16 above, at  5 .

32 . See Pokorak, note 1  above.

33 . S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara Law Review 433 , 453  –  54 ( 1995 ) (empha­sis added).

34 . Callins v. Collins, 114  S. Ct. 1127 , 1135 ( 1994 ) (Blackmun, J., dis­sent­ing from denial of certiorari).

35 . See People v. Sharpe, 781 P. 2 d 659 , 660 (Colo. 1989 ) (cen­sur­ing the prosecutor).

36 . See Janofsky, note 6  above.

37 . DATV Productions, Jury Selection With Jack McMahon, tran­script at 45  –  46 ( 1987 ) (here­inafter McMahon Tape).

38 . Id. at  46 .

39 . Petitioner’s Brief, Commonwealth v. Wilson, Nos. 3267 , 3270 &   3271 (Pa. Ct. of Com. Pleas, Phil. Oct., 1997 ), Supplement to Petition for Post-Conviction Relief Under Article I, Sec. 14 and Post-Conviction Relief Act, ¶¶ 3 &   4 .

40 . Jackson v. Thigpen, 752  F. Supp. 1551 , 1554 (N.D. Ala. 1990 ), rev’d in part and aff’d in part, sub nom. Jackson v. Herring, 42  F. 3 d 1350 ( 11 th Cir.  1995 ).

41 . See Bright, note 33 above, at  456 .

42 . Id. at  457 .

43 . Id. at  448 .

44 . 476 U.S. 79 ( 1986 ).

45 . McMahon Tape, note 37 above, at 69  –  71 (empha­sis added).

46 . See Roundtree v. State, 546 So. 2 d 1042 (Fla.  1989 ).

47 . Mata v. Johnson, 99  F. 3 d 1261 ( 5 th Cir.  1996 ).

48 . Dobbs v. Zant, 720  F. Supp. 1566 , 1577 (N.D. Ga. 1989 ), aff’d, 963  F. 2 d 1403 ( 11 th Cir. 1991 ), rev’d, 113  S. Ct. 835 ( 1993 ).

49 . See J. Yang, A Rallying Point for Blacks in Utah, Washington Post, Feb. 26 , 1992 , at A 4 ‑ 5 .

50 . See Georgia Rejects Clemency for a Killer Who Says He’s Retarded, N.Y. Times, Mar. 31 , 1994 , at  A 19 .

51 . Testimony of Rev. Dr. Joseph E. Lowery, President, Southern Christian Leadership Conference, before the Senate Judiciary Committee, Oct. 2 , 1989 , at  3 .

52 . See S. Bright, note 33 above, at  440 .

53 . R. Johnson, Death Work: A Study of the Modern Execution Process 33 ( 1998 ).

54 . See, e.g., J. Marquart, et al., The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923  –  1990 8  –  13 ( 1994 ).

55 . McCleskey v. Kemp, 481 U.S. 279 ( 1987 ).

56 . American Bar Association, Policy and Procedures Handbook ( 1988 ).

57 . A list of endors­ing orga­ni­za­tions is avail­able from Equal Justice, a project of the Quixote Center, Hyattsville, MD .

58 . International Commission of Jurists, Administration of the Death Penalty in the United States (June, 1996 ), at 68 (Findings of The Mission, vi).

59 . Inter-American Commission on Human Rights, Report No. 57 /​ 96 ( 1998 ).

60 . E. Olson, U.N. Report Criticizes U.S. for ​ ‘ Racist’ Use of Death Penalty, N.Y. Times, April 7 , 1998 , at  A 17 .

61 . M. Matza, Activist Blasts Pa. Over Death Penalty, Philadelphia Inquirer, Nov. 26 ,  1997 .

63 . Statement by Catholic Bishops of Texas on Capital Punishment, Oct. 20 ,  1997 .

64 . See, e.g., R. Marquand, Death-Penalty Issue Stirs Divergent Religious Views, The Christian Science Monitor, June 12 , 1997 (“Conventional reli­gious oppo­si­tion to the death penal­ty includes points famil­iar to sec­u­lar oppo­nents. They include … the dis­pro­por­tion­ate rate of exe­cu­tion of poor and minor­i­ty inmates;”).

65 . See T. Morgenthau &  P. Annin, Should McVeigh Die?, June 16 , 1997 , at 27 (“ 49 % of all those polled say a black is more like­ly than a white to receive the death penal­ty for the same crime”).

66 . McCleskey v. Kemp, 481 U.S. 279 , 343 ( 1987 ) (Brennan, J., dissenting).

CNN

Opinion: I witnessed an execution and regretted it. Now I’m not so sure

E ditor’s Note: Jonathan Eig is a journalist and author. His most recent book is “ King: A Life .” The views expressed here are his own. Read more  opinion  on CNN.

The coroner wore a tuxedo. The condemned man wore blue jeans and a white short-sleeve shirt. Though his ankles were no longer shackled, he still took baby steps as he approached the electric chair. The yellow cinderblock walls of the execution chamber looked and smelled as if they’d been freshly painted.

In May of 1990, I watched through a window of a building at Angola State Penitentiary as  Dalton Prejean  became one of the last criminals put to death by electrocution in the state of Louisiana. I saw his chest heave, his fists clench and his right wrist twist outward. A spark and a puff of smoke shot from the electrode attached to his left leg.

Over the years, I came to regret my decision to witness an execution. It made me feel complicit, ashamed, a cog in a machine that dehumanized the process of death. But recent events have forced me to reconsider.

Last month,  Alabama  became the first state to use nitrogen gas to execute a prisoner. A small group of people, including  five journalists , witnessed the execution of convicted murderer Kenneth Eugene Smith. They were not allowed to wear watches, to carry phones or even to use pen and paper to make notes.

Some of the witnesses  said Mr. Smith tried to hold his breath.  One said  he struggled for four minutes against the straps that held him to his gurney and appeared to remain conscious for another two to three minutes. The commissioner of Alabama’s prison system said the prisoner “struggled against his restraints a little bit” but “nothing was out of the ordinary of what we were expecting.”

Witness statements matter. The witness of  Sister Helen Prejean  (no relation to Dalton) helped move public opinion when she used her experiences at Angola to write “Dead Man Walking,” a book that became a movie.

In 1990, when I reported in The New Orleans Times-Picayune that I had seen that spark and a puff of smoke from the area where electrodes had been attached to Dalton Prejean’s leg, lawyers and prison journalists seized on the detail and investigated further. Attorneys for one man on death row claimed that the electric chair caused  burning , mutilation and torture. The  Angolite , the Louisiana State Penitentiary’s inmate-run news magazine,  published photos  revealing the seared flesh of a man who’d died in the chair. Soon after Prejean’s execution, the Louisiana legislature passed laws  mandating lethal injections for executions .

Louisiana hasn’t executed anyone since 2010, in part because state officials have been  unable to acquire the chemicals  needed for lethal injections. Now, Gov.  Jeff Landry , who campaigned on a promise to bring back the death penalty, is calling for  a special legislative session  beginning  February 19  to enact a bill making lethal injection, nitrogen asphyxiation and electrocution legal methods of execution. The governor’s proposed legislation would also seal records related to the drugs and materials used in executions, which could be perceived as an attempt to limit scrutiny of the process.

Around the time I witnessed Prejean’s execution, roughly 80% of Americans said they approved of the death penalty, according to a  Gallup poll . Now,  only 53% say they support it , and about half of those surveyed say they believe it is applied unfairly.

Since the 1990s, Americans have grown more skeptical of capital punishment, coming into alignment with much of the  rest of the world . Their views seem to be rooted in morality, in the belief that its legality depends on its respect for human dignity. Public opinion has no doubt been shaped by reports from witnesses like me who have provided accounts indicating that despite all our advances in technology we have not yet found a humane method for killing.

That Landry would seek to reinstitute the electric chair despite this trend should come as no surprise. Politicians often play to fear and anger. But fear and anger are not the only emotions at play. Americans live now with the greater awareness that innocent people have been convicted and executed for their crimes. Private cell phones and body cameras on police have shown us  that official accounts of incidents can’t always be trusted . We also live with the awareness that legal standards and community standards change over time while executions remain final in their judgment.

Prejean, who was convicted and executed for the murder of Donald Cleveland, a Louisiana state trooper, was 17 at the time of the murder. In 2005, the  Supreme Court  made it unconstitutional to execute people who commit crimes before the age of 18.  The court held  that executing young criminals violates “the evolving standards of decency that mark the progress of a maturing society,” and noted that American society had come to regard juveniles as less culpable than adult criminals. Today, Prejean would not have been executed.

As our society matures, we should resist the temptation to return to crude forms of punishment. If we can’t, we should demand accountability from the officials carrying out executions. We should permit witnesses to carry pens, paper and cameras. As long as the death penalty remains a part of our system of justice, we shouldn’t shrink from looking at it.

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Alabama Says Embryos in a Lab Are Children. What Are the Implications?

A ruling by the state’s Supreme Court could change common practices at fertility clinics in the state and possibly nationwide.

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A medical professional, wearing blue scrubs, blue rubber gloves, facial protection and a cap, uses long utensils to pull embryo samples from cryogenic storage in a clinic setting.

By Jan Hoffman

The Alabama Supreme Court has opened a new front in the legal debate over when human life begins. Embryos created and stored in a medical facility must be considered children under the state’s law governing harmful death, the court ruled.

Friday’s ruling was cheered by anti-abortion activists nationwide, who have long argued that life begins at conception. They were thrilled that, for the first time, a court included conception outside the uterus in that definition. But the strongest and most immediate effect of the decision will be on fertility patients trying to get pregnant, not women seeking to end their pregnancies.

The Alabama ruling invites states to enact strict new regulations over the fertility industry that could sharply limit the number of embryos created during a cycle of medical treatment and affect the future of millions of stored frozen embryos. A concurring opinion even offered road maps for such statutes. That could have a chilling effect on a person seeking to have children through in vitro fertilization, whether single or part of a same-sex or heterosexual couple.

What did the ruling say?

The ruling is actually somewhat narrow. It applies to three couples who had sued the Center for Reproductive Medicine, a fertility clinic in Mobile, for inadvertently destroying their embryos. The plaintiffs argued that they were entitled to punitive damages under Alabama’s 1872 Wrongful Death of a Minor Act. Two lower state courts disagreed, saying the embryos were neither people nor children. The State Supreme Court reversed those rulings, saying that the embryos fell squarely under Alabama’s definition of minors and that the negligence lawsuits could proceed. The case will now go back to the State District Court for further litigation.

What did the ruling not say?

The decision is silent on the fate of other frozen embryos in Alabama because that issue was not before the court. The ruling is only about the terms under which plaintiffs may bring a negligence case against a fertility clinic for embryo destruction. However, it could eventually have major consequences for Alabama patients and providers.

On Wednesday, the I.V.F. clinic at the University of Alabama at Birmingham announced it was pausing fertility treatments to explore the implications of the court’s ruling on its patients and providers. One fear is that the clinic, doctors and even patients may face daunting new liability issues surrounding the handling of embryos.

What will it mean for fertility patients and clinics?

“The honest answer is that we don’t know for sure,” said Dr. Paula Amato, president of the American Society for Reproductive Medicine , an organization that lobbies on behalf of fertility experts and patients. “But the ruling is very concerning.”

Freezing embryos is a widespread practice. During a standard cycle of in vitro fertilization, a woman takes hormones to maximize her production of eggs. A doctor then retrieves as many eggs as possible and injects them with sperm in the clinic’s lab, with the goal of creating viable embryos for implantation.

That process will often result in numerous embryos. Because of dangers associated with multiple births from I.V.F., protocols now urge doctors to implant only one embryo at a time. But success with implantation is hardly guaranteed, and so typically doctors freeze remaining embryos for subsequent attempts.

But if laws prevent providers in Alabama from freezing embryos, patients may face the medically challenging and financially draining prospect of many more cycles, Dr. Amato said. Success rates would most likely plummet. “It will disproportionately affect lower income people, people of color and people in L.G.B.T. communities,” she said.

Overall, according to federal data, infertility affects 9 percent of men and 11 percent of women of reproductive age in the United States.

The ruling may therefore restrict the ways that reproductive medicine is practiced in Alabama. “The ruling potentially criminalizes or sets a high civil penalty for standard procedures that we do every day,” Dr. Amato said.

Did the Alabama court suggest protocols for frozen embryos?

No. The court was clear that it could not regulate fertility clinics and the practice of reproductive medicine. But in a concurring opinion, Chief Justice Tom Parker strongly urged the Alabama legislature to examine the matter. He said that other countries, including Italy, New Zealand and Australia, limited the number of embryos that could be created as well as implanted, and suggested that states look to them for regulatory templates.

Is this case headed to the U.S. Supreme Court?

Not imminently, legal experts predicted. The clinic would have to appeal the decision, a move that could be risky, said Katherine L. Kraschel, an expert on reproductive law at Northeastern University School of Law. In light of the United States Supreme Court’s 2022 Dobbs ruling that overturned the national right to abortion, she said, the clinic’s chances at even getting to the door of the Supreme Court would be slender, “because the case hinges on a State Supreme Court’s interpretation of its own state statute.”

Lawyers for the clinic did not return requests for comment.

Also, the case is far from finished in Alabama. The State Supreme Court directed the parties to return to the district court to litigate the case in light of the new ruling, including the suggestion that other legal avenues be explored. One issue it identified was whether a clinic’s standard contract with fertility patients, which typically allows providers to donate or destroy embryos at some future point, could limit the clinic’s liability in this case.

Does all this have any effect on abortion?

In recent years, anti-abortion groups have been pressing for fetuses to be granted “personhood” status, which would entitle them to legal protections. In extending that umbrella to cover embryos in a lab , the Alabama Supreme Court employed reasoning that runs through the U.S. Supreme Court’s 2022 abortion ruling: that fetuses deserve a court’s shield under the 14th Amendment’s equal protection clause.

“The Supreme Court is making this bid to think about the fetus as a vulnerable, unprotected minority that courts are obliged to step in and protect, whether that is through upholding anti-abortion restrictions or moving forward toward accepting and recognizing the fetus as a person,” said Melissa Murray, an expert on reproductive law at the New York University School of Law.

Americans United for Life, the country’s oldest anti-abortion organization, was particularly encouraged by Alabama’s embrace of that theme.

“The Alabama Supreme Court held that the text of the Wrongful Death of a Minor Act is clear and applies to all pre-born children, including the plaintiffs’ embryonic pre-born children. In doing so, the Court correctly acknowledged the legal status of embryos as human persons,” Danielle Pimentel, the policy counsel for the organization, said in a statement. “This decision is a step in the right direction toward ensuring that all pre-born children are equally protected under the law.”

Dr. Amato said she found it ironic that anti-abortion groups were supporting rulings that could severely limit I.V.F.

“I.V.F. is about family building,” she said. “It should be viewed by red states as a pro-life activity.”

Jan Hoffman writes about behavioral health and health law. Her wide-ranging subjects include opioids, tribes, reproductive rights, adolescent mental health and vaccine hesitancy. More about Jan Hoffman

What to Know About I.V.F.

In vitro fertilization can be daunting, but preparation and learning about the side effects can make it a lot easier. Our guide can help .

There are still large gaps in our knowledge about how I.V.F. procedures affect women years later. Here’s why .

Many insurance companies don’t cover I.V.F. treatments. But there are ways to ease the financial burden .

For L.G.B.T.Q. couples, the path to parenthood can be long . One writer shared her absurd but ultimately successful experience  using I.V.F. to become pregnant.

Have you gone through an I.V.F. treatment? Tell us about your experience .

Man found guilty of murder in Alaska Native woman’s killing that was captured on stolen memory card

FILE - Brian Steven Smith arrives in a courtroom after a break, Tuesday, Feb. 6, 2024, in Anchorage, Alaska. Smith, who recorded the violent death of an Alaska Native woman on his cellphone, was found guilty of two counts of first-degree murder, Thursday, Feb. 22, 2024, in her death and that of another Alaska Native woman. (AP Photo/Mark Thiessen, File)

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A South African man who tortured an Alaska Native woman and narrated as he recorded a video of her dying was found guilty of first-degree murder on Thursday for killing her and another Native woman.

The Anchorage jury returned a unanimous verdict against Brian Steven Smith after deliberating for less than two hours.

Smith, a 52-year-old from South Africa, showed no reaction in court and stared ahead as the judge read the jury’s verdict. He was arrested after a woman stole his cellphone from his truck and discovered the gruesome footage from 2019. The woman, a sex worker who became a key witness during the trial in Anchorage, then copied the footage to a memory card and ultimately turned it over to police, prosecutors said.

Smith later confessed to killing another Alaska Native woman whose body had been found earlier but had been misidentified.

Smith was found guilty of all 14 charges, including two counts of first-degree murder in the deaths of Kathleen Henry in 2019 and Veronica Abouchuk, either in 2018 or 2019. He was also convicted of multiple counts of sexual assault.

Sentencing was set for July 12 and July 19. Alaska does not have the death penalty.

Freda Dan, who is part of the Abouchuk family by marriage, sat through the trial nearly every day and gave high marks to law enforcement and the judicial system for their thorough work.

“We weren’t invisible, and we are people,” said Dan, who is from the village of Stebbing, adding they were treated with respect. Other family members declined to comment.

Also attending the trial was Smith’s wife, Stephanie Bissland of Anchorage.

“He was very good for me, but he had another life, I guess,” she said, adding his problems were likely exacerbated by heavy drinking.

Bissland said when he was first jailed, he was in a very dark place. “He got better,” she said.

She plans to write him and visit him when he is transferred to a prison. Divorce is not in the cards. “I said my vows,” she said.

Jurors stayed in the courtroom Thursday after delivering the verdict to hear more evidence about whether the first-degree murder conviction involved aggravating factors. They later found the murder involved “substantial physical torture” after hearing additional arguments from attorneys. That will subject Smith to a mandatory 99-year sentence.

For Abouchuk’s murder, he faces 30 to 99 years.

The graphic videos were only shown to the jury during the three-week trial, but audio could be heard in the gallery, where some heard Henry gasping for breath before dying. Prosecutors said he drove around with Henry’s body in the back of his pickup for two days before dumping her corpse on a rural road south of Anchorage.

The video never shows the man’s face but his distinctive accent is heard on the tape. He narrates as if to an audience and urges Henry to die as she’s repeatedly beaten and strangled in an Anchorage hotel room.

“In my movies, everybody always dies,” the voice says on one video. “What are my followers going to think of me? People need to know when they are being serial-killed.”

Henry and Abouchuk were from small villages in western Alaska, Henry from Eek and Abouchuk from Stebbins. Both women had experienced homelessness.

Authorities say Henry was the victim whose death was recorded at the TownePlace Suites by Marriott, a hotel in midtown Anchorage. Smith was registered to stay from Sept. 2 to Sept. 4, 2019; the first images showing her body were time-stamped at about 1 a.m. on Sept. 4, police said.

The last images on the card were taken early on Sept. 6 and showed Henry’s body in the back of a black pickup, according to charging documents. Location data showed that at the time the photo was taken, Smith’s phone was near Rainbow Valley Road, along the Seward Highway south of Anchorage, the same area where Henry’s body was found several weeks later, police said.

Valerie Casler, the woman who provided the images to police, has changed her story over the years about how she came into possession of the SD memory card.

She first claimed she found the card, labeled “Murder at the Midtown Marriott” on the ground.

Later, she claimed she stole the card from the center console of Smith’s pickup when they were on what she described as a “date,” but then changed it to say she stole Smith’s phone from the truck.

When she charged the phone, she said she found 46 images and one video on it, and later transferred those to an SD card she stole from a department store. She then labeled the card. Authorities later said the SD card contained 39 images and 12 videos.

During an eight-hour police interrogation at the Anchorage airport, Smith confessed to police that he also killed Abouchuk. Smith had picked her up in Anchorage while his wife was out of town. He said she smelled, but Abouchuk refused to take a shower when he asked.

He became upset, retrieved a pistol from the garage and shot her in the head before dumping her body north of Anchorage. He told police where the body was left, and authorities later found a skull with a bullet wound there.

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