The Death Penalty in America (Bedau)

• THE DEATH PENALTY IN AMERICA
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The
Death Penalty
in America
CURRENT CONTROVERSIES
Edited by Hugo Adam Bedau
Oxford University Press

New York • Oxford
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Berlin Ibadan
Copyright © 1997 by Hugo Adam Bedau

Published by Oxford University Press, Inc.
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First published by Oxford University Press, Inc., 1997
First issued as an Oxford University Press paperback, 1998
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Library of Congress Cataloging-in-Publication Data

The death penalty in America—current controversies / edited
by Hugo Adam Bedau.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-512286-2
1. Capital punishment—United States. I. Bedau, Hugo Adam.

HV8699.U5D37 1996
364.6'6'0973—dc20 96-7028
10
Printed in the United States of America
on acid-free paper
PREFACE
The death penalty continues to make headlines across the nation, perhaps more
than at any time in this century. Just consider two of the high-profile cases during
1995, the brisk trial of Susan Smith in South Carolina for murdering her two
children and the seemingly endless trial of O. J. Simpson in Los Angeles for the
murder of his ex-wife and her male friend. The national news media gave
the nation a day-by-day account of each case from the courtrooms. For Simpson
the prosecutors ruled out the death penalty before the defendant ever entered the
courtroom. Smith, however, faced from the start a prosecutor openly seeking her
death; fortunately for her, the jury thought otherwise.
Or consider the extensive media campaign during 1995 waged on behalf of
Mumia Abu-Jamal, former Black Panther and radical journalist, under a death sen-
tence for murdering a policeman in Philadelphia in 1981. Is he really innocent, as
his friends and champions insist? Innocent or guilty, did he get a fair trial and
review by the appellate courts? Each year for two decades, beginning with the
death sentence and execution in Utah of Gary Gilmore in 1977, we have been
bombarded from coast to coast with details about the latest gruesome murder or
serial killings (Ted Bundy in Florida, John Wayne Gacy in Illinois) and the cul-
minating events in such cases—trial, conviction, sentencing, and execution.
If one wants to probe more deeply, however, getting behind television sound
bites, the often sensationalist reports in the print media, and the posturing of pol-
iticians, one will discover that there is a vast array of material in our libraries to
help answer more accurately the familiar questions: Is the death penalty an effective
deterrent? Why does it take so long from sentencing to execution? How do pros-
ecutors and juries decide which murderers to sentence to death and which to life
in prison? Are the innocent ever wrongly arrested, tried, convicted, sentenced to
death—and executed? Is the death penalty administered in a racially biased man-
ner? If so, can such bias be avoided? Why did the Supreme Court rule that the
death penalty is not an unconstitutional "cruel and unusual punishment"? These
and a host of other questions arise whenever the death penalty is discussed or
seriously debated. Fortunately, good answers to most of them lie waiting in print
for those who know where to look.
Unfortunately, even those who do cannot get these answers without access to a
major university library. Most of the relevant information appears in law reviews,
scholarly journals, government documents, local news stories, and unpublished
memoranda of various sorts, almost none of which can be found on the shelves of
the local public or college library. The purpose of this book is to remedy that
problem, as much as a single volume can, by reprinting the essential material and
providing a guide to locating the bulk of the rest.
vi Preface
By the mid-1990s, the wealth of relevant literature is little short of over-

whelming. Consequently, no one volume can do full justice to all the important
research, challenging arguments, vivid narratives, and cold statistics that are needed
to tell the story in all its details. What can be done, and what I have attempted to
do in editing this volume, is to review the bulk of the literature published during
the past decade or so (references to events and research prior to 1985 are rare) and
select from it representative items for reprinting here. Regrettably, for reasons of
economy of space, I have had to cut inessential footnote references in many of the
articles chosen for reprinting, as well as some text to avoid redundancies and di-
gressions where possible. (Such deletions have been indicated in the usual manner.)
The reader who demands all the details as they appeared in the originals will thus
need to hunt them up.
A far more regrettable omission from the book as originally designed is the
material I had planned to reprint on the Robert Alton Harris case in California.
Perhaps better than any other recent case, the struggle culminating in his death in
the gas chamber in April 1992 brought federal judges and the lawyers on both
sides to a fever pitch. Their often bitter and angry exchanges, including the un-
precedented peremptory behavior by the Supreme Court, make extraordinary read-
ing. The curious reader can get the flavor of the controversy in the following items
(fully cited in the bibliography): Kroll 1990, Lungren and Krotoski 1992, Noonan
1992, Reinhardt 1992, Caminker and Chemerinsky 1992, Calabresi and Lawson
1992, and Bork 1992.
The book consists of thirty-three chapters, including seven essays that appear
here for the first time and excerpts from five important U.S. Supreme Court deci-
sions, organized into seven parts. The introduction (chapter 1) sketches the main
features of the death penalty today as it emerged during the past three centuries of
our history. Part I digests information on the nation's capital punishment laws, the
volume and rate of criminal homicide in recent years, the distribution of death row
prisoners across the nation, the annual number of executions, and other similar data
that can be presented in tabular form. The part concludes by placing the current
American death penalty scene in an international context. Part II is devoted to
reporting and examining public opinion on the death penalty and alternative pun-
ishments. Part III examines the debate over deterrence and incapacitation in light
of the most recent research. Part IV reviews the Supreme Court's decisions and
opinions on the issue of the death penalty as a "cruel and unusual punishment,"
followed by two commentaries on the constitutional debate and a brief examination
of the death penalty in this country as seen from a perspective of international
human rights law. Part IV also reviews other important Supreme Court decisions
relevant to the death penalty, focusing on the decade-long controversy over federal
habeas corpus. Part V considers two of the main charges brought against the death
penalty as applied: that it is racist, and suffered only by the poor. Part VI focuses
exclusively on the death penalty as applied and tracks the flow of capital cases
from the prosecutor's office to the execution chamber. It opens with a study of a
Pennsylvania prosecutor's decision making in murder cases, then looks at new
research on juror decision making in the sentencing phase of capital trials. This is
Preface vii
followed by a discussion of wrongful convictions in capital cases, a case study of

a campaign to obtain clemency for a death row prisoner in Nebraska, a debate over
whether executions ought to be shown on television, and an account from an eye-
witness of an execution in Texas. The final chapter of this part closes by consid-
ering the economic costs of our current death penalty system. Part VH completes
the book with two debates over the death penalty between Christian theologians
and secular philosophers. Readers who have studied all the material preceding these
debates should be in a reasonably good position to evaluate them on their merits.
In 1964, in my preface to The Death Penalty in America: An Anthology (the
grandparent of this book), I warned the reader that it was not a volume conceived
in scholarly neutrality. I was then and still am opposed to the death penalty in all
its forms, no matter how awful the crime or how savage the criminal. Readers who
do not share that conviction may well wonder whether I have been reasonably fair
in presenting both sides of the many controversies that figure in the debate over
the death penalty. I can only plead that I have tried, within the constraints of space
and the relative importance of some material over other, and that the reader dis-
satisfied with my judgment should follow up the references I have made to the
writings of those who disagree with me. By doing so one will easily trace out what
is to be found in print presenting all shades of opinion. I do confess to having
given the opponent of the death penalty the last word in several of these contro-
versies—notably, on deterrence, on whether the death penalty is a "cruel and
unusual punishment," on whether the death penalty is functionally racist, on the
costs of our current death penalty systems, and on miscarriages of justice in capital
cases. I have done this because I sincerely believe the critics of the death penalty
have the better of the evidence and the argument on each of these topics.
It should be added that proponents of the death penalty have done little or no
research on most aspects of the policy they favor. With few exceptions, they have
confined themselves to poking holes in the empirical research that favors abolition
and to making armchair rebuttals of abolitionist arguments; this is most evident in
the controversies discussed in parts IE, V, and VI. As a result, it is simply impos-
sible to present both sides at comparable length and in comparable detail. The
weight of the overall argument is reflected, and properly so in my judgment, by
the greater bulk of the book being given over to the abolitionist side.
The table of cases mentions only cases I have cited in my introductions and
essays; the references cited by the various authors whose work is reprinted here
have not been reproduced in the bibliography. For these additional references one
must consult the works cited (if any) at the end of each article. The reader should
not suppose that I have tried to cite all the relevant publications in the bibliography;
far from it. Nor is omission of an author's work from this list to be taken as
evidence of my low estimate of its worth. No attempt has been made to edit the
reprinted materials to achieve uniformity of citation style.
Readers familar with the third edition of The Death Penalty in America (1982)
may well wonder to what extent the present volume overlaps and goes beyond that
one. Although several of the topics, subtopics, and their sequence in the two books
are the same, the content of this book is entirely new, except for excerpts in part
viii Preface
IV from four of the Supreme Court's death penalty cases. Similarly, the 1982
edition consisted entirely of new material with respect to the first (1964) edition.
(The second edition of 1967 is only a slightly revised version of the first edition
and for most purposes is indistinguishable from it.) Indeed, I have not called this
book the fourth edition of The Death Penalty in America because it would be far
more accurate to think of it as the third volume in a series that includes both the
1964 and the 1982 editions, since the overlapping contents among the three books
is so slight. Taken together, these three volumes—nearly fifteen hundred pages—
preserve and make available a large fraction of all of the most important material
on the death penalty in this country covering the past forty years.
Carmel-by-the-Sea, California H. A. B.
October, 1996
ACKNOWLEDGMENTS
A book such as this could not be completed without the help and advice of a
number of others actively involved in studying (and resisting) the death penalty.
During 1994 the law faculty of the University of Westminster in London generously
provided me with a scholarly home away from home, in which I could do the
spadework undisturbed, leading to the first draft of this book. Twenty years of
frequent conversation with Henry Schwarzschild have had a pronounced impact on
my thinking, and many of his ideas have no doubt crept into this book and appear
here as though they were originally my own. My colleague on the major research
project described in the introduction to Part VI, Michael L. Radelet, has given me
the benefit of his wide knowledge and has helped me avoid many errors and
omissions. I am especially indebted to Joseph L. Hoffman, Larry Myers, and to
William C. Bailey and Ruth D. Peterson for contributing essays that appear for the
first time in this book. Without their willingness to drop everything in order to
meet my deadline, the book would be less complete and up-to-date than it is. I am
also indebted to Vivian Berger, William J. Bowers, Richard C. Dieter, Leigh Din-
gerson, Rick Halperin, David Hoose, Kika Matos, Michael Mello, Richard Moran,
Diann Rust-Tierney, William Schabas, and Robert Spangenberg for their prompt
responses to various specific requests for help. Jeff Silver's sharp eye saved me
from several errors and Anne Belinsky contributed some last-minute typing. My
editors, Cynthia Read and Kim Torre-Tasso, have been supportive from the start
and a pleasure to work with. Above all I am indebted, and delighted to acknowledge
that debt, to Constance E. Putnam. She alone has read all the manuscript, often
putting her own work aside to do so, thereby saving me from countless errors, and
making other sacrifices so that I could complete this manuscript. For the errors,
omissions, and infelicities that remain I have only myself to blame.
CONTENTS
TABLES XV
FIGURES xix
1 Background and Developments 3
Part I The Laws, the Crimes, and the Executions
2 Offenses Punishable by Death 36

3 Proposed State Death Penalty Legislation, 1994 42
4 Criminal Homicide 55
5 Death Row Prisoners 65
6 The Status of the Death Penalty Worldwide 78
Part II The Controversy over Public Support for the Death Penalty:
The Death Penalty versus Life Imprisonment
7 Hardening of the Attitudes: Americans' Views on the Death Penalty 90
Phoebe C. Ellsworth
Samuel R. Gross
8 Sentencing for Life: Americans Embrace Alternatives to the Death
Penalty 116
Richard C. Dieter
Part DI The Controversy over Deterrence and Incapacitation

9 Murder, Capital Punishment, and Deterrence: A Review of the
Literature 135
William C. Bailey
Ruth D. Peterson
10 A National Study of the Furman-Commuted Inmates: Assessing the
Threat to Society from Capital Offenders 162
James W. Marquart
Jonathan R. Sorensen
xii Contents
11 Prison Homicides, Recidivist Murder, and Life Imprisonment 176

H. A. Bedau
Part IV The Controversy over Constitutionality
12 Furman v. Georgia, 1972: The Death Penalty as Administered Is

Unconstitutional 189
13 Gregg v. Georgia, 1976: The Death Penalty Is Not Per Se
14 Woodson v. North Carolina, 1976: Mandatory Death Penalties Are
15 Coker v. Georgia, 1977: The Death Penalty for Rape Is
16 Constitutional Interpretation, History, and the Death Penalty 214
David A. J. Richards
17 Why the Death Penalty Is a Cruel and Unusual Punishment 232
H. A. Bedau
18 Habeas Corpus and Other Constitutional Controversies 238
H. A. Bedau
19 International Human Rights Law and the Death Penalty in America 246
H. A. Bedau
Part V The Controversy over Race and Class

20 McCleskey v. Kemp, 1987: A Racially Disproportionate Death
Penalty System Is Not Unconstitutional 254
21 Death Penalty Sentencing: Research Indicates Pattern of Racial
Disparities 268
U.S. General Accounting Office
22 Counsel for the Poor: The Death Sentence Not for the Worst Crime
but for the Worst Lawyer 275
Stephen B. Bright
Part VI Controversies from Prosecution to Execution
23 "A Good Murder" 319

Leigh B. Bienen
24 How American Juries Decide Death Penalty Cases: The Capital
Jury Project 333
Joseph L. Hoffman
Contents xiii
25 Innocence and the Death Penalty: Assessing the Danger of Mistaken

Executions 344
26 An Appeal for Clemency: The Case of Harold Lament Otey 361
Larry Myers
27 To See or Not to See: Televising Executions 384
Henry Schwarzschild
Robert R. Bryan
28 Witness to Another Execution 387
Susan Blaustein
29 Millions Misspent: What Politicians Don't Say About the High
Costs of the Death Penalty 401
Richard C. Dieter
Part VII The Death Penalty: For and Against

30 The New Testament and Moral Arguments for Capital Punishment 415
H. Wayne House
31 Noah's Covenant, the New Testament, and Christian Social Order 429
John Howard Yoder
32 The Death Penalty Once More 445
Ernest van den Haag
33 A Reply to van den Haag 457
H. A. Bedau
BIBLIOGRAPHY 471
TABLE OF CASES 501
INDEX 503
TABLES
Table 1-1: Capital Crimes in the United States, by Executions and

Numbers of Jurisdictions, 1965 7
Table 1-2: Abolition, Partial Abolition, and Restoration of the Death
Penalty, by Jurisdiction, 1846-1995 9
Table 1-3: Persons Executed Under Civil Authority, Annually,
1930-95 11
Table 1-4: Methods of Lawful Execution, by Jurisdiction, 1994 12
Table 1-5: Average Time Served Under Death Sentence, 1977-94 15
Table 1-6: Executive Clemency in Capital Cases, Annually, 1961-94 20
Table 1-7: Prisoners Executed by Jurisdiction in Rank Order, 1930-95
and 1977-95 22
Table 2-1: Offenses Punishable by Death: State Jurisdictions, 1993 36
Table 2-2: Federal Death Penalty, 1994 39
Table 2-3: Minimum Age Authorized for Capital Punishment, by
Jurisdiction, 1994 41
Table 3-1: Proposed State Death Penalty Legislation, 1994 42
Table 4-1: Volume of Crimes Against the Person, Annually, 1974-93 55
Table 4-2: Rate of Crimes Against the Person, Annually, 1974-93 57
Table 4-3: Ten Leading Causes of Death, 1992 58
Table 4-4: Rates of Criminal Homicide, 1990-94, per Hundred
Thousand Population, by Type of Punishment and Jurisdiction 59
Table 4-5: Murder Victims, by Race and Sex, 1993 61
Table 4-6: Distribution of Arrests for Criminal Homicide, by Age,
1993 61
Table 4-7: Victim/Offender Relationship in Criminal Homicide, by
Race and Sex, 1993 62
Table 4-8: Murder Victims, by Type of Weapon Used, 1989-93 63
Table 4-9: Murder Victims, by Type of Murder Circumstances,
1989-93 64
Table 5-1: Prisoners Under Death Sentence, by Jurisdiction, Race, and
Sex, 1995 65
xvi Tables
Table 5-2: Juvenile Offenders Sentenced to Death, by Jurisdiction,

1973-95 67
Table 5-3: Women Sentenced to Death, by Jurisdiction and Race,
1973-95 68
Table 5-4: Length of Time on Death Row, by Jurisdiction and Year of
Entry, 1974-94 69
Table 5-5: Prisoners on Death Row, by Type of Removal, Annually,
1973-94 71
Table 5-6: Prisoners on Death Row, by Jurisdiction and Type of
Removal, 1973-94 72
Table 5-7: Prisoners Executed, by Jurisdiction and Method, 1977-94 74
Table 5-8: Juvenile Offenders Executed, 1976-94 75
Table 5-9: Victim/Executed Offender Relationship, by Race and
Gender, 1977-95 75
Table 5-10: Number and Percent of Death Sentences Carried Out in
Death Penalty Jurisdictions, by Rank Order of Death Sentences,
1973-94 76
Table 6-1: Abolitionist for All Crimes 78
Table 6-2: Abolitionist for Ordinary Crimes Only 80
Table 6-3: Abolitionist De Facto 81
Table 6-4: Retentionist 82
Table 6-5: List of Countries which have Abolished the Death Penalty
Since 1976 83
Table 7-1: Percent Favoring the Death Penalty for Specific Crimes 105
Table 9-1: Murder Rates for Neighboring Death Penalty and
Abolitionist States, 1977-93 139
Table 10-1: Region and State Comparison by List 164
Table 10-2: Criminal History of the Fwraww-Commutees 165
Table 10-3: Comparison of Fwraian-Murderers, Persons Arrested for
Murder Only 1968-72, and the Current Death Row Population 166
Table 10-4: Victim-Offender Relationship by Race of Offender 168
Table 10-5: Number of Serious Rule Violations by Crime 170
Table 10-6: Release from Prison by Region and Crime 171
Table 10-7: Total Recidivism by Offense 172
Table 11-1: Criminal History Profile of Persons Under Sentence of
Death, by Type of Offense and Race, 1994 178
Table 24—1: "How much did the discussion among the jurors [at the
sentencing phase of the trial] focus on the following topics?" 337
Tables xvii
Table 24-2: "How much did the discussion [about the defendant's
guilt] among the jurors focus on the following topics?" 338
Table 24-3: "After hearing the judge's instructions, did you believe
that the law required you to impose a death sentence if the
evidence proved that . . . ?" 338
Table 24-4: "After hearing all of the evidence [at the punishment
phase of the trial,] did you believe it proved that . . . ?" 339
Table 24-5: "How long did you think someone not given the death
penalty for a capital murder in this state usually spends in prison
before returning to society?" 340
Table 24-6: "How long did you think someone not given the death
penalty for a capital murder in this state usually spends in prison
before returning to society?" 340
Table 24-7: "Rank the following from 'most' through 'least'
responsible for [the defendant's] punishment." 341
Table 24-8: "Who was 'most responsible' for the defendant's
sentence?" 342
FIGURES
Figure 1-1: Persons Executed Under Civil Authority, Annually,

1930-95 10
Figure 1-2: Persons Under Death Sentence, Annually, 1930-95 14
Figure 1-3: Public Opinion on the Death Penalty, 1936-94 17
Figure 7-1: Attitudes Toward the Death Penalty 91
Figure 7-2: Attitudes Toward the Death Penalty by Gender and Race 92
Figure 7-3: Reasons Given for Death Penalty Support 97
Figure 7-4: Support for the Death Penalty, and Crime and Homicide
Rates 109
Figure 8-1: Life Without Parole States 119
Figure 8-2: Restricted Parole: Years Before Parole Eligibility Under
Available Sentences for 1st Degree Murder Convictions 120
THE DEATH PENALTY IN AMERICA
1
Background and Developments
As of April 1996, more than three thousand persons were under death sentence in
the United States. In 1995, 56 convicts were executed and more than two hundred
were sentenced to death; on the average, thirty have been executed so far each year
in this decade. In the past twenty years, thirty-eight of the fifty states have meted
out at least one death sentence; twenty-four have carried out at least one execution.
Over the whole course of this century more than seven thousand men and women
have been lawfully executed; several thousand more were sentenced to death but
spared for various reasons. Since George Kendall had the no-doubt-unsought dis-
tinction of being the first person of European extraction to be sentenced to death
and hanged on these shores, in 1608 in the Jamestown Colony, Virginia,1 perhaps
as many as twenty thousand men and women have been lawfully punished by death.
To be sure, some jurisdictions today—during 1995 there were thirteen2—admin-
ister a penal code devoid of capital statutes, mete out no death sentences, and
execute no one. But these jurisdictions are and always have been the exception in
this country, even if their abolition of the death penalty aligns them with all the
nations of Western Europe—as chapter 6 will show.
The paragraphs that follow present, in capsule form, the salient facts about the
death penalty in America today and their history.3 At least a nodding acquaintance
with the past is essential to an understanding of the present status of the death
penalty and the prospects for its expansion or contraction in the years ahead.
The history of the death penalty in America can be usefully if roughly divided
into six epochs of very uneven duration and importance: first, from the colonial
period up to the adoption of the Constitution and the Bill of Rights; second, the
seven decades leading up to the Civil War; then the five decades through the
Progressive Era; third, from World War I through the post-World War II years;
next, the two decades from the 1950s to the 1970s; and finally from the 1970s to
the present.
Early 1600s to 1790s
Capital punishment was brought to these shores by the earliest colonial govern-
ments in the seventeenth century. The criminal law developed here was little more
than a series of variations, colony by colony, on the law of England, the mother
country. Although the capital laws of the thirteen colonies differed from each other
3
4 Background and Developments
in many interesting and important details concerning the death penalty, and various
changes occurred during the century and a half of the colonial period, all the
colonies authorized public execution by hanging as the mandatory punishment for
various crimes against the state, the person, and property.
1790s to 1860s
The abolition movement in Western civilization is usually dated from 1763, the
year Cesare Beccaria, a young Italian lawyer, published his short but provoca-
tive treatise Dei delitti e delle pene (On Crimes and Punishments). There he ad-
vocated penal servitude as the preferred substitute punishment for the death
penalty; his argument elicited great interest and broad support among Enlighten-
ment thinkers throughout Europe, and his book was widely read in the United
States as well.4
Nevertheless, the founding of the United States and the adoption of the federal
Bill of Rights in 1791 (with comparable constitutional developments in each of
the thirteen original states) worked no significant changes on the practice of capi-
tal punishment in the colonial period. In particular, the adoption of the Eighth
Amendment to the federal constitution, prohibiting "cruel and unusual punish-
ments," was understood to be a prohibition only against inflicting the death pen-
alty in its most aggravated forms, such as by crucifixion or burning at the stake.
Nevertheless, during this period five significant developments reshaped the use of
the death penalty in virtually the whole nation and set patterns that remain to this
day.
Invention of Degrees of Murder

Whereas English law traditionally recognized only two kinds of criminal homi-
cide—murder and voluntary manslaughter—American criminal law typically di-
vides murder itself into two kinds, first-degree and second-degree, with the death
penalty confined to persons convicted of the former offense. Pennsylvania in 1793
was the first jurisdiction to introduce this distinction;5 it was clearly a product of
compromise between those (mostly Quakers) who wanted to abolish the death
penalty entirely and those who wished to keep it essentially unchanged. Indeed, in
the distinction between first- and second-degree murder we see for the first time
what would become the dominant (if often tacit) concern of the defenders of capital
punishment: to shape the law and administration of the death penalty so as to
winnow the worst offenders (for whom, they believe, death is appropriate) from
the bad (those who are no doubt guilty of grave crimes but who for various reasons
ought not to be executed),6 and by this compromise to prevent the complete abo-
lition of capital punishment.
In rapid order most states followed Pennsylvania's lead, so that today every
American jurisdiction that authorizes the death penalty for murder does so by lim-
Background and Developments 5
iting it to those convicted of murder in the first-degree (or, in some jurisdictions,

of "capital murder"; see Chapter 2).
Ending Public Executions

English history is replete with narratives by witnesses at public hangings, attesting
that such spectacles did little to teach the folly of crime or vindicate the majesty
of public justice. The general unruliness of the crowds that gathered to watch pub-
lic executions constituted a growing threat to the legitimacy of the death penalty
itself.7 In this country as early as 1787 Dr. Benjamin Rush, a Philadelphian like
his friend Benjamin Franklin, lectured and wrote against public executions. Not
until 1835 in New York, however, were laws enacted to bring the hangman in-
doors—or, more precisely, behind a wall or fence and into the prison yard. Only
official witnesses (variously defined) were henceforth permitted to view the event,
thereby keeping the crowd at arm's length and ensuring that unwanted mishaps
(decapitation of the offender and a slow death by strangulation were the worst)
would not be seen by the mob and incite turmoil, marring the solemnity of the oc-
casion.
A full century was to pass before every state followed New York's lead. Hang-
ing in public occurred as late as 1936 in Kentucky and 1937 in Missouri. Today,
strict control over who may witness an execution is characteristic of every death
penalty jurisdiction.8 In recent years, however, a proposal in the reverse direction
has been much discussed and even litigated (but without success) in both Texas
and California: filming executions and showing excerpts on prime-time television.
This controversy will be explored in greater detail (see Chapter 27). Meanwhile,
Texas has led the way in permitting members of the murder victim's family to
attend the execution of the murderer.9
Giving the Trial Jury Sentencing Discretion

Under English law, conviction of a capital offense was tantamount to a death
sentence, since the statutes empowered the trial judge to mete out no alternative.
Occasionally juries would convict an offender of a capital crime and then recom-
mend, even plead, that the court sentence the offender to banishment in the colonies
or to prison in the hulks; the judges invariably ignored such unsought advice.
American jurisdictions early in the nineteenth century, however, in keeping with
populist attitudes and practices, began authorizing trial juries to make binding rec-
ommendations in capital cases, requiring the judge to sentence to death (as under
the old law) or to grant "mercy" in the form of a life sentence in prison (defined
variously by different state statutes).
The origins and growth of this practice, as well as its motivation, have yet to
be traced and explained in satisfactory detail. We know, for instance, that in 1841
both Tennessee and Alabama gave the jury sentencing discretion in the punishment
of murder, and in 1846 Louisiana extended this provision to all its capital crimes.
(Was it a device to allow all-white juries to sentence white offenders more leniently
than others? We do not know.)
Jury sentencing discretion in capital cases slowly but steadily grew throughout
the rest of the nineteenth century, although a mandatory death sentence for certain
crimes remained lawful until fairly recently. For example, until 1951 Massachusetts
provided a mandatory death penalty for anyone convicted of first-degree murder,
and until 1975 felony-murder-rape was punishable by a mandatory death penalty.10
Today, largely as a consequence of Supreme Court rulings in the 1970s, jury sen-
tencing discretion in all capital cases is virtually universal across the land. (For
further details, see Chapters 13 and 14.) In a few states, however, notably Florida,
the jury's sentencing determination is only a recommendation, and so it can be—
and often is—overridden by the trial judge.11
Reducing the Variety of Capital Statutes

In the early years of the nineteenth century, English criminal law imposed the death
penalty for scores of crimes, ranging from the obvious (murder, treason) to the
absurd (theft of linens from a bleaching ground). Hundreds of men, women, and
children were sentenced to death each year, though many were spared and shipped
off to the colonies instead. American criminal law never quite reached such ex-
cesses; during most of the same century American states rarely punished offenders
with death except upon conviction for murder. To be sure, the details of progressive
statutory abolition in our history still await the attention of legal historians. Nev-
ertheless, the broad outlines of this reform are clear.
The story in the West and South, however, is somewhat different. Horse thiev-
ery, claim jumping, and cattle rustling in western states were often punished by
hanging. In the South, in the aftermath of the Civil War, rape and other crimes
against the person were capital offenses, especially if the victim was white and the
offender black. Of all the nonhomicidal crimes punishable by death, rape was by
far the most important—some 10 percent of all executions between 1930 and 1977
(when the death penalty for rape was abolished by the Supreme Court) were carried
out for this crime. On occasion, public agitation over "the crime of the hour"—
kidnapping for ransom in the 1930s is a good example; so is large-scale drug
trafficking in the 1990s—could erupt in a rash of new capital statutes. As recently
as three decades ago (1965) a wide variety of crimes were still punishable by death
(indeed, even by a mandatory death penalty in a few cases); execution of offenders
guilty of some of these nonhomicidal crimes was not unknown in modern times
(see Table 1-1).
Today, the only crime clearly punishable by death under American law—the only
crime for which anyone has been executed since 1977 and the only crime punishable
by death whose constitutionality has been upheld by the Supreme Court—is some
form of criminal homicide. This functional limitation of the death penalty to criminal
homicide is a consequence of Supreme Court rulings in the 1970s (see part IV). Yet
as we shall also see (in Chapter 3), legislators in many states never seem to tire of in-
troducing bills that would authorize the death penalty for various crimes not involv-
Table 1-1.
Capital Crimes in the United States, by Executions and Numbers of
Jurisdictions, 1965
Number of Execution(s) carried out

Type of offense jurisdictions3 between 1930 and 1965
Capitally punishable homicide 44 Yes

Murder 40 Yes
Other homicide 20 Yes
Kidnapping 34 Yes
Treason 21 No
Rape 19 Yes
Carnal knowledge 15 No
Armed robbery 10 Yes
Perjury in a capital case 10 No
Bombing 7 No
Assault by a life-term prisoner 5 Yes
Burglary 4 Yes
Arson 4 No
Train wrecking 2 No
Train robbery 2 No
Espionage 2 Yes
Bank robbery 2 Yes
Sabotage 1 Yes
Desertion in wartime 1 Yes
Other 14 No
a
Fifty-five jurisdictions: fifty states, District of Columbia, Puerto Rico, Virgin Islands,
federal civil and military.
Source: Bedau 1982:9, Table 1-1; National Prisoner Statistics, "Capital Punishment,"
no. 42 (June 1968), Table 3; Savitz 1955.
ing homicide. Congress, in the summer of 1994, moved decisively in this direction
when it enacted the Violent Crime Control and Law Enforcement Act, including the
Federal Death Penalty Act, authorizing a federal death penalty for half a hundred
crimes, a few of which do not involve homicide.
All these developments initiated early in the nineteenth century—inventing de-
grees of murder, empowering juries to extend mercy in sentencing, ending public
executions, reducing the variety of crimes punishable by death—were responses to
a growing movement to abolish the death penalty, especially active by the 1840s
in Massachusetts, Ohio, New York, New Jersey, Pennsylvania, and Rhode Island.12
The movement was led variously by secular reformers and Quakers, Unitarians,
and other liberal Christians.
Abolitionists often supported these developments as painful compromises, the
best that could be achieved in the face of strong opposition, and undeniably im-
provements in the right direction. Retentionists could view these revisions as rel-
atively inexpensive concessions that left their main principle intact: Retributive
justice and protection of the innocent required the death penalty in appropriate
cases. Whether these reforms helped the cause of abolition in the long run or only
entrenched what remained of the death penalty more securely is a nice question
not easily answered.
Complete Abolition of the Death Penalty

The fifth and final important development during the years 1790 to 1865 was the
first great triumph of the abolition movement: repeal of the death penalty for murder
in Michigan in 1847, followed by Rhode Island in 1852 and Wisconsin a year
later.13 Abolition in Ohio and Pennsylvania almost succeeded in that period as
well.14 With these states setting the pace, a checkered pattern of abolition by state
legislative action began across the nation. (The effort to abolish by legislative
reform must be kept distinct from efforts in the period 1965-1976 to achieve ab-
olition by judicial decree; see part IV.) During the past century, abolition in a given
state by vote of the legislature was followed, more often than not, by legislative
restoration of the death penalty a few years later, as Table 1-2 shows. The strug-
gle—especially in Massachusetts and New York—between those who would re-
instate and even expand the death penalty and those who would keep it abolished
continues to this day.
1860s to 1910s
The third of the six periods in our history, roughly from the Civil War to the early
years of the twentieth century, witnessed no important changes or new trends af-
fecting the death penalty. The search for a method of execution more efficient than
hanging led to the development in New York in 1888 of the electric chair, and
this method of execution (despite its many drawbacks) eventually was adopted by
more than three dozen states. But the abolition movement languished after the Civil
War, and during the Gaslight Era few states significantly revised the death penalty
provisions of their criminal codes.
1910s to the Early 1950s
This lassitude was abruptly ended during the Progressive Era. Within a few years
outright repeal of all death penalties was accomplished in nine states (Arizona,
Kansas, Minnesota, Missouri, North Dakota, Oregon, South Dakota, Tennessee,
Washington). But the abolition tide rapidly receded, often within only a few years,
in all but two of these jurisdictions.15 The movement to abolish the death penalty
by state legislative reform never regained momentum. Not only that: Within a few
Table 1-2.
Abolition, Partial Abolition, and Restoration of the Death Penalty,
by Jurisdiction, 1846-1995
Year of Year of
partial complete Year of Year of
Jurisdiction abolition abolition restoration reabolition
Alaska 1957
Arizona 1916a 1918
Colorado 1897 1901
Delaware 1958 1961
D.C. 1973
Hawaii 1957
Iowa 1872 1878 1965
Kansas 1907, 1973 1935, 1994
Maine 1876 1883 1887
Massachusetts 1984
Michigan 1847a 1963
Minnesota 1911
Missouri 1917 1919
New Mexico 1969b,c
bd
New York 1969 - 1995
North Dakota 1915
Oregon 1914, 1964 1920, 1984
Rhode Island 1852d
South Dakota 1915, 1977 1939, 1979
Tennessee 1915e 1919
Vermont 1965b-c
Washington 1913 1919
West Virginia 1965
Wisconsin 1853
a
Death retained for treason.
b
Death retained for killing a law officer on duty.
c
Death retained for a second offense of murder.
d
Death retained for murder of a guard by a life-term prisoner.
e
Death retained for rape.
Source: Bureau of Justice Statistics, "Capital Punishment, 1982," pp. 10-11; "Capital Punishment
1984," p. 4; NCADP "Lifelines," Jan.-Mar. 1994, p. 3; New York Times, 8 March 1995, p. 1.
years, during the 1930s and 1940s, executions reached their highest levels in this
century (see Figure 1-1 and Table 1-3), most likely as a consequence of public
anxiety over the "crime wave" generated by the Great Depression (1929-40) and
Prohibition (1916-32). Nevertheless, two less radical changes inspired in part by
the abolition movement also occurred during this period; each represents a trend
still manifest today.
Figure 1-1. Persons executed under civil authority, annually, 1930-95.

Source: Bureau of Justice Statistics, "Capital Punishment 1993," Figure 2, p. 2; NAACP
Legal Defense and Educational Fund, "Death Row, U.S.A." (winter 1995), p. 3.
Humanizing the Method of Execution

The electric chair, widely adopted early in this century, may have been an im-
provement over hanging in some respects.16 But death in the electric chair was and
remains one of the most barbaric ways to kill a person. Why it remains authorized
by statute in a dozen states even today is unclear. The other widely adopted method
of execution invented in this country during this period—lethal gas, first authorized
and used in Nevada in 1923—was introduced precisely because it was viewed,
with some plausibility, as a humane improvement on both hanging and the electric
chair. Its days, however, seem to be numbered; in 1994 a federal judge in California
ruled that death by cyanide gas violated the eighth amendment ban on "cruel and
unusual punishments."17
What was true of attitudes toward the gas chamber in the 1930s is even truer
today regarding lethal injection, first authorized by law in Oklahoma in 1977, first
used in Texas in 1982, and now the law in some two dozen jurisdictions (see Table
1-4). Without doubt, humanizing executions so that they are as quick, painless,
reliable, and as little disfiguring as possible is an essential aspect of preserving
capital punishment in any society today that regards itself as civilized. Abolitionists
and retentionists alike agree that the more barbaric the mode of execution, the less
willing society will be to permit its use.18 Objections on such humanitarian grounds
to death by firing squad in Utah—still the method of lawful execution most fre-
Table 1-3.
Persons Executed Under Civil Authority, Annually, 1930-95
All years 4,175

1995 56
1994 31
1993 38
1992 31
1991 14
1990 23
1989 16 1969 — 1949 119
1988 11 1968 1948 119
—
1987 25 1967 2 1947 153
1986 18 1966 1 1946 131
1985 18 1965 7 1945 117
1984 21 1964 15 1944 120
1983 5 1963 21 1943 131
1982 2 1962 47 1942 147
1981 1 1961 42 1941 123
1980 — 1960 56 1940 124
1979 2 1959 49 1939 160
1978 — 1958 49 1938 190
1977 1 1957 65 1937 147
1976 — 1956 65 1936 195
1975 — 1955 76 1935 199
1974 — 1954 81 1934 168
1973 — 1953 62 1933 160
1972 — 1952 83 1932 140
1971 — 1951 105 1931 153
1970 — 1950 82 1930 155
Source: Bureau of Justice Statistics, "Capital Punishment 1978," p. 16, Table 1 (for years 193O-79);
NAACP Legal Defense and Educational Fund, "Death Row, U.S.A.," winter 1995, p. 3 (for years
1980-95).
quentiy used there (although death by lethal injection is also permitted)—were aired
and argued in the state legislature in January 1996, just days prior to the execution
of John Albert Taylor (Brooke 1996). Nor has death by hanging disappeared; this
method was used in Delaware as recently as January 1996.
Expanding the Role of Federal Appellate Courts

Early in this century it was rare, though not unknown, for a capital offender to
receive no review of his death sentence or of the underlying criminal conviction
by any appellate court, state or federal. Bit by bit, however, at least perfunctory
review by state appellate courts became almost routine, although very few states
went so far as to enact statutes requiring their appellate courts to review convictions
and sentences in every death penalty case.
Table 1-4.
Methods of Lawful Execution, by Jurisdiction, 1994
Lethal Injection Electrocution Lethal gas Hanging Firing squad

3 3 0
Arizona a>b
Alabama Arizona Delaware - Utah3
Arkansas34 Arkansas34 California3 Montana3
California3 Connecticut Maryland3-6 New Hampshirea'f
Colorado Florida Mississippi3-8 Washington3
Delaware3'0 Georgia Missouri3
Idaho Indiana North Carolina3
Illinois Kentucky Wyoming3-11
Kansas Nebraska
Louisiana Ohio3
Maryland3-6 South Carolina
Mississippi3'8 Tennessee
Missouri3 Virginia
Montana3
Nevada
New Hampshirea>f
New Jersey
New Mexico
North Carolina3
Ohio3
Oklahoma
Oregon
Pennsylvania
South Dakota
Texas
Utah3
Washington3
Wyoming3
Note: The method of execution of Federal prisoners is lethal injection, pursuant to 28 CFR, Part 26.
For offenses under the Violent Crime Control and Law Enforcement Act of 1994, the method is that
of the State in which the conviction took place, pursuant to 18 USC 3596.
Authorizes 2 methods of execution.
b
Arizona authorizes lethal injection for persons whose capital sentence was received after 11/15/92; for
those sentenced before that date, the condemned may select lethal injection or lethal gas.
c
Delaware authorizes lethal injection for those whose capital offense occurred after 6/13/86; for those
whose offense occurred before that date, the condemned may select lethal injection or hanging.
d
Arkansas authorizes lethal injection for those whose capital offense occurred after 7/4/83; for those
whose offense occurred before that date, the condemned may select lethal injection or electrocution.
e
Maryland authorizes lethal injection for those whose capital offense occurred after 3/25/94 and also
for those whose offense occurred before that date, unless within 60 days from that date, the condemned
selected lethal gas.
^ew Hampshire authorizes hanging only if lethal injection cannot be given.
8
Mississippi authorizes lethal injection for those convicted after 7/14/84 and lethal gas for those con-
victed prior to that date.
h
Wyoming authorizes lethal gas if lethal injection is ever held to be unconstitutional.
Source: Bureau of Justice Statistics, "Capital Punishment, 1994," p. 5, Table 2.
Major change occurred only when state prisoners on death row sought and
found relief in the federal courts. In this connection it needs to be remembered,
first, that the protections of the federal Bill of Rights have been used to review
convictions and sentences in state criminal courts with some frequency only
since the 1960s; and, second, that the vast proportion of all capital trials in this
country occur in state, not federal, courts. Late in 1994, for example, of the
roughly three thousand persons on death row in the United States, only six—
fewer than 0.2 percent—had been convicted in a federal court under a federal
death penalty statute. Landmark cases, notably those that grew out of the Elaine,
Arkansas, race riot (Moore v. Dempsey, 1923)19 and the Scottsboro Boys rape
case (Powell v. Alabama, 1932),20 paved the way for the federal courts to con-
sider claims that the nation's Bill of Rights had been violated by state criminal
proceedings in capital cases. At best, however, such litigation attacked the death
penalty only case by case, and the litigation—aimed solely at protecting the
rights of a given defendant—was intermittent and uncoordinated as well. Few, if
any, jurists or legal scholars supposed that appeals to "due process of law" or
to "equal protection of the law" could persuade the courts to reject the death
penalty itself.
1950s to 1970s
During these two decades the abolition movement was significantly revived and
achieved some of its greatest successes. Repeal of the death penalty by the
Delaware legislature in 1958 proved to be the inspiring event,21 galvanizing op-
ponents of the death penalty in many states to organize and seek repeal of the
capital statutes in their own backyard. Abolition by public referendum in
Oregon in 196422 and by the legislatures in Iowa and West Virginia a year
later were the chief accomplishments during this period. In addition, three new
factors came into play, two of which remain important in understanding the
current scene.
Decline in Executions
As Table 1-3 shows, executions dropped steadily in the 1950s to an annual average
of seventy-two, a reduction by half of the annual average for the 1930s and 1940s.
No single factor explains this precipitous drop, though increasing sensitivity of the
federal courts to postconviction appellate litigation on behalf of capital defendants
no doubt was one important cause. The decline in executions that began in the
1950s accelerated in the early 1960s, prefacing the complete cessation of executions
from 1968 to 1976 while the constitutionality of the death penalty was being tested
in the courts.
The judicial moratorium on executions ended in 1977; since then, despite the
growing numbers under death sentence each year (see Figure 1-2), the number of
those executed annually is still quite small, although it may be increasing slightly.
In the short term it seems very likely that the rate of execution will increase,
Figure 1-2. Persons under death sentence, annually, 1930-95.

Source: Bureau of Justice Statistics, "Capital Punishment 1993," Figure 3, p. 12; and
NAACP Legal Defense and Educational Fund, "Death Row, U.S.A." Winter 1995, p. 1 (as
of 31 January 1996).
perhaps even double the rate of the early 1990s (for reasons to be explained shortly
and in greater detail in Chapters 7 and 22-24).
Increase in Time Served Under Death Sentence

Concomitant with the decline in executions in the 1950s, there has been a steady
growth in the average time served on death row from imposition of the death
sentence to the final disposition of the case. Already in the early 1960s voices were
raised in alarm over this development. As Table 1-5 shows, the average time served
under death sentence in the years since executions resumed (1977-92) has slowly
grown to about ten years. Perhaps no other feature of the current administration of
capital punishment so agitates those who favor executions as does (what they regard
as) this flagrant example of the law's inordinate delay. Yet nothing short of a
breathtaking rate of executions—two or three every day—or radical changes in the
laws affecting postconviction appeals (or, even more radically, a sharp drop in the
Table 1-5.
Average Time Served Under Death Sentence, 1977-94
Year of Average elapsed time, in months, from

execution Number executed sentence to execution for:
Total 226 94
1977-83 11 51
1984 21 74
1985 18 71
1986 18 87
1987 25 86
1988 11 80
1989 16 95
1990 23 95
1991 14 116
1992 31 114
1993 38 113
1994 31 122
Note: Average time was calculated from the most recent sentencing date.
number of death sentences issued by trial courts) could both dispose of the steadily
increasing backlog of capital cases slowly wending its way through the appellate
courts and prevent their replacement by as many or more in the future.
Challenges to the Constitutionality of the Death Penalty

Until fairly recently, opposition to executing a given capital prisoner usually took
one or both of two forms: using the appellate courts to challenge the procedures
whereby the defendant was tried and sentenced, and pleading for a commutation
of the death sentence at a clemency hearing. Not until the mid-1960s was any
serious attempt made to challenge the very constitutionality of the death penalty
itself.23
This campaign caused an abrupt and complete suspension of all executions for
nearly a decade and reached its climax in June 1972 with the ruling of the Supreme
Court in Furman v. Georgia. For the brief period of a few months in the summer
of 1972 (and apart from a few state mandatory death penalties, most of them in
desuetude) the entire nation experienced for the first time virtually complete abo-
lition of the death penalty.
The Supreme Court's decision in Furman also required the state courts to re-
sentence all the more than six hundred prisoners then on death row because their
death sentences (though not their convictions) had been nullified indirectly by this
ruling. Other decisions by the Court in the aftermath of Furman further narrowed
the scope and shaped the subsequent administration of capital punishment in many
respects, three of which are paramount: no more mandatory death penalties, no
more death penalties except for some form of criminal homicide, and no more
executions without review of the death sentence and the underlying criminal con-
viction by a state appellate court. These decisions consolidated trends already ev-
ident and in some states incorporated by statute into their criminal codes. (Further
details will be found in part IV.)
Yet the campaign to abolish the death penalty permanently and nationally by
federal constitutional interpretation and court decree failed to achieve its principal
aim. Within months after the decision in Furman, legislatures in many states en-
acted new death penalty statutes designed to repair the flaws identified by the Court.
Four years later, in Gregg v. Georgia (1976) and allied cases from Florida and
Texas, the Court itself sustained the constitutionality of capital punishment.
Whether at some future date the Supreme Court will once again prove receptive
to abolition, as it was in the 1970s, is impossible to predict.24
1970s to the Present
The current death penalty scene in the United States begins in 1976 when the
Supreme Court held that the death penalty as such is not unconstitutional—or, to
be more precise, that the prohibition against "cruel and unusual punishments" in
the Eighth Amendment of the federal Bill of Rights does not bar the death penalty
per se. Those decisions of the mid-1970s, in conjunction with an important ruling
a decade later (McCleskey v. Kemp, 1987), have more or less settled the constitu-
tionality of the death penalty for the foreseeable future.
Meanwhile, at least half a dozen factors now characteristic of the national pos-
ture toward the death penalty began to manifest themselves. Each is likely to con-
tinue at least into the immediate future.
Increasing Public Support for the Death Penalty

In his important concurring opinion in Furman in 1972, Justice William J. Brennan
Jr. cited public opinion polls that showed the American people to be slightly in-
clined in favor of abolition. Four years later, in his plurality opinion for the Court
in Gregg, Justice Potter Stewart cited subsequent polls to the opposite effect. Even
the Supreme Court in interpreting the Bill of Rights apparently cannot ignore public
opinion.
As Figure 1-3 shows, except for a brief period in the early 1960s, the American
public has given lip service in support of the death penalty, and this support has
been very large and stable for a generation. Beginning in the mid-1970s, probably
no other factor regarding the death penalty in America has been so prominent,
important, and enduring as the popular support for capital punishment. To be sure,
it is far from clear whether this mile-wide support is more than an inch deep; recent
research suggests it may not be (see part II). Here it suffices to identify and em-
phasize this factor because it is so closely connected with two others that deserve
mention.
Figure 1-3. Public opinion on the death penalty, 1936-94.

Source: Erskine 1970:291; Gallup Poll 1994:5.
Politicization of the Death Penalty

Until recent decades, the death penalty played little or no visible role in American
electoral politics. Neither major political party took any interest in the issue in
national or state electoral contests or in deciding who should be elected or ap-
pointed to the judiciary. This indifference came to a noticeable end with two major
Republican Party political campaigns, Richard Nixon's in 1968 (which put him in
the White House) and Ronald Reagan's in 1972 (which gained him the governor's
mansion in California). In each of these campaigns, the death penalty card was put
into play with considerable effect against Democrats who were seeking reelection.
Ironically, it was in the year 1968 that the Supreme Court, writing in Witherspoon
v. Illinois, observed in passing that death penalty supporters were a "distinct and
dwindling minority." Perhaps that had been true briefly in the early 1960s, but it
would soon prove to be otherwise.
In recent years, notably in California, Florida, and Texas, campaigns for state
offices have been fought out in part over which candidate would sentence to death
and execute the most offenders. In the 1988 presidential campaign, Governor Mi-
chael Dukakis's opposition to the death penalty was effectively used against him
by Vice President George Bush. In March of 1992, Governor Bill Clinton pointedly
interrupted his campaign in New Hampshire seeking the Democratic nomination
for the presidency so that he could return to Arkansas for the execution of Rickey
Ray Rector, a convicted murderer whose brain was half destroyed by a gun-shot
from his own hand.25 Unlike his fellow competitors for the Democratic nomination
and his eventual Republican opponent, Clinton alone could claim to have presided
over executions (three)—and so the death penalty card quietly disappeared from
the deck during the rest of the campaign, though not before it had been adroitly
used. The off-year elections in 1994 presented the spectacle of rival candidates for
various public offices vying with each other over who would prosecute capital cases
more vigorously, who would sign more death warrants, and who would champion
the restoration or expansion of the death penalty.
For several years it has been virtually impossible for any candidate for high
elective office in the states—governor, attorney general, appellate court judge—to
appear hesitant over (much less opposed to) the death penalty. (Governor Mario
Cuomo in New York, who vetoed death penalty legislation annually from 1983
through 1994, is the most conspicuous exception to this rule—and he was finally
defeated for reelection in 1994 by George E. Pataki, a politician who trumpeted
his unqualified determination to restore the death penalty in New York.) Every
candidate for higher elective office knows that his or her public objection to the
death penalty risks instant exploitation by the opposition as proof positive that the
candidate is hopelessly "soft on crime." (The issue is examined more closely in
Chapters 23 and 29.)
Declining Use of Executive Clemency

Although English criminal law two hundred years ago punished thousands with
death sentences, most of these sentences were never carried out. Instead, exercise
of the royal clemency power intervened, and death sentences were reduced to tran-
sportion to the colonies or, less frequently, a lifetime of imprisonment. In this
country the power of the chief executive (governor, president) to grant reprieves
and commutations of otherwise lawful punishments has always been a feature,
despite its royalist overtones, of American constitutional law. Two centuries ago,
when the death sentence was mandatory upon conviction of a capital crime, many
nonhomicidal crimes punishable by death, and less-than-adequate review afforded
by the appellate courts, executive clemency played an important role in achieving
rough justice by keeping many lesser offenders off the scaffold.
However, various developments in the law discussed here—notably, the dis-
tinction between degrees of murder, the power of capital juries to decide between
a life and a death sentence, regular appellate review of death sentences, and re-
duction in the variety of capital laws—plus the enduring populist elements in
American life have combined to reduce the role for executive clemency. As Table
1-6 shows, this decline has been nothing if not spectacular in the period since the
Supreme Court upheld the constitutionality of the death penalty in 1976.26 What
counted as good reasons for commutations in the past—reform by the criminal
while on death row, unresolved doubts about guilt, a split verdict by the appellate
courts reviewing the case, inequitable sentencing of codefendants—have virtually
ceased to influence governors or pardon boards. A rare exception to the prevailing
practice occurred in Illinois in January 1996. Human rights activists, led by celeb-
rity Bianca Jaggar, succeeded in persuading Governor Jim Edgar to commute the
death sentence of Guinevere Garcia, herself a victim of *'incest, rape, battering,
alcoholism, and depression." Governor Edgar commented, "this is not the kind of
case I had in mind when I voted as a legislator to restore the death penalty" (Terry
1996). (For details about a recent case, see chapter 26.)
Increasing Complexity and Cost of Capital Punishment

A century ago—when hanging was quick and cheap, trials brief, and appeals in-
frequent—capital punishment as a system was relatively inexpensive and probably
much cheaper than the alternative of long-term imprisonment. (No research on the
comparative costs in those days has been conducted.) In the past three decades all
this has changed. Numerous studies have been undertaken to carry out comparative
cost accounting for a capital punishment system where everyone arrested for crim-
inal homicide is a potential capital case versus the costs in a system in which no
one is (as was true in 1994 of Massachusetts, New York, Wisconsin, and a dozen
other jurisdictions). All these studies agree that the dollar costs of a capital pun-
ishment system—with taxpayers funding both the defense and the prosecution from
trial through several rounds of appeals in state and federal courts—is greater than
for a system where imprisonment is the norm. (A fuller discussion of these costs
is presented in chapter 29.)
But the dollar costs are only part of the story. The administrative complexity of
the present system of capital punishment in America can hardly be exaggerated. It
is an unavoidable outgrowth of the Supreme Court's rulings in the 1970s. Those
decisions rejected outright abolition on constitutional grounds but did force the
states that wanted to keep the death penalty to control its use by introducing several
administrative constraints, notably, provision of legal counsel for indigent defen-
dants at trial and for appeals; a two-stage or bifurcated trial (first, a trial on the
issue of guilt, followed by a second trial for the guilty on the issue of sentence);
statutory guidelines to assist the jury in choosing between a death and a prison
sentence; automatic review in state appellate courts; and discretionary review in
the federal courts. In theory these protections were to provide greater fairness, if
not the maximum possible fairness, in capital cases. What they provide in practice,
in the judgment of all those who actually work within such systems, is neither fair
nor efficient. The controversy is of central importance and is discussed in greater
detail in parts V and VI.
Table 1-6.
Executive Clemency in Capital Cases, Annually,
1961-94
Year BJS R&Z

1961 17 *
1962 27 *
1963 15 *
1964 9 *
1965 19 *
1966 17 *
1967 13 *
1968 16 *
1969 20 *
1970 29 *
1971 * *
1972 * 0
1973 9 0
1974 22 0
1975 21 0
1976 15 5
1977 7 1
1978 8 0
1979 6 2
1980 6 3
1981 4 13
1982 6 11
1983 4 8
1984 6 2
1985 3 0
1986 4 5
1987 1 3
1988 1 2
1989 3 2
1990 0 1
1991 0 10
1992 1 2
1993 0 *
1994 1 *
Source: Bedau 1990-91, Table 1, p. 263 (using Bureau of

Justice Statistics for the years 1961-71, as revised) and
Bureau of Justice Statistics, "Capital Punishment 1994,"
p. 12, appendix Table 1; Radelet and Zsembik 1993, p. 297,
Table 1.
Declining Importance of Deterrence and Incapacitation

In a day when horse thievery, counterfeiting, and other crimes against property and
the state were punishable by death (as they have been in more than one jurisdiction
in our history), defense of the death penalty had to rest at least in part on its
deterrent effect. "We execute criminals not to punish them but to prevent future
crimes" expresses the attitude of countless supporters of the death penalty in an
earlier day. (Prevention, deterrence, and incapacitation are discussed in greater de-
tail in part HI.)
Once the death penalty is confined solely to criminal homicide, however, as is
substantially true today, it can be more readily defended solely on grounds of just
deserts or retribution. What does it matter whether the death penalty is a deterrent
at all, much less a better deterrent than the alternative punishment? What does it
matter if all (and not merely most) convicted murderers can be kept in prison
without significant risk to the safety of other prisoners, guards, and visitors? What
matters is that murderers deserve to die. Survey research in recent years (presented
and discussed in detail in part II) has shown to all investigators that a large fraction
of those who support the death penalty would do so regardless of whether it was
shown to be an effective and superior deterrent.
This shift in the basic rationale for capital punishment has helped to immunize
it from attack on empirical grounds. If murderers deserve to die, then it doesn't
matter whether the evidence shows that society could be protected just as well by
a policy of long-term imprisonment, or that it would be cheaper to get rid of the
costly current death penalty system in favor of a system that sentences to prison
terms, or that those who murder whites are being disproportionately and unfairly
prosecuted, convicted, sentenced, and executed for capital crimes.
Regionalization of the Death Penalty

A glance at the data presented in Table 1-7 reveals that, so far as the death penalty
is concerned, the nation can be divided roughly into three regions running from
east to west.27 First, there is a northern tier from Maine to Alaska; here the death
penalty either is abolished or plays a very minor role (few, if any, prisoners on
death row, infrequent executions, moderate public support). The second, middle
tier, runs from Pennsylvania to California; here the death penalty has a more prom-
inent role, but opposition to its use is quite vigorous, and executions since 1977
have been few and slow in coming despite large numbers on death row. Finally,
there is the lower tier running from Virginia and the Carolinas west through Texas
to Arizona. Here the death penalty thrives—many executions amidst clamor for
more, hundreds on death row and more on the way. As of May 1996, two thirds
of all executions since Furman have been carried out in just five southern states:
Texas, Florida, Virginia, Louisiana, and Georgia.
Describe the South however one wishes—the erstwhile slavocracy, the Old Con-
federacy, the Bible Belt—in this region the death penalty is as firmly entrenched
as grits for breakfast. Why the death penalty should be so deeply rooted in southern
Table 1-7.
Prisoners Executed by Jurisdiction in Rank Order, 1930-95 and 1977-95
Number Number
executed executed
Jurisdiction 1930-95 Jurisdiction 1977-95
U.S. total 4,172 U.S. total 313
Texas 401 Texas 104
Georgia 386 Florida 36
New York 329 Virginia 29
California 294 Louisiana 22
North Carolina 271 Georgia 20
Florida 206 Missouri 17
Ohio 172 Alabama 12
South Carolina 167 Arkansas 11
Mississippi 158 North Carolina 8
Louisiana 155 West Virginia 7
Pennsylvania 154 Illinois 7

Alabama 147 Oklahoma 6
Arkansas 129 Nevada 5
Virginia 121 Delaware 5
Kentucky 103 South Carolina 5
Illinois 97 Mississippi 4
Tennessee 93 Utah 4
Missouri 78 Arizona 4
New Jersey 74 Indiana 3
Maryland 69 California 2
Oklahoma 66 Washington 2
Arizona 51 Pennsylvania 2
Washington 49 Nebraska 1
Colorado 47 Idaho 1
Indiana 46 Montana 1
West Virginia 40 Maryland 1
District of Columbia 40 Wyoming 1
Nevada 34
U.S. federal 33
Massachusetts 27
Connecticut 21
Oregon 19
Iowa 18
Utah 17
Delaware 17
Kansas 15
New Mexico 8
Wyoming 8 (continued)
Table 1-7. (continued)

Number Number
executed executed
Jurisdiction 1930-95 Jurisdiction 1977-95
Montana 7
Nebraska 5
Vermont 4
Idaho 4
South Dakota 1
New Hampshire 1
Source: Bureau of Justice Statistics, "Capital Punishment 1994," p. 11, Table 10; and NAACP Legal
Defense and Educational Fund, "Death Row, U.S.A.," winter 1995, pp. 9-10.
culture is not entirely clear; conventional explanations (unsupported by any un-

ambiguous empirical evidence) point to the relatively rural, religious, and racist
attitudes of the native white residents in the region, attitudes whose roots go back
to the days of slavery when the threat of violent repression of the resident African-
American labor force was an essential instrument of social, political, and legal
control. The death penalty today, so this explanation goes, is nothing but the sur-
vival in a socially acceptable form of the old Black Codes and the lynch law
enforced by the Ku Klux Klan.
The truth, no doubt, is far more complex than this crude stereotype would allow.
Still, whatever the explanation, it remains true that the death penalty in the United
States has its strongest grip in the South. Indeed, Georgia's Chattahoochee Judicial
District, which includes the city of Columbus and Fort Benning, has been labeled
"the Buckle of the Death Belt" because of the way death sentences for African-
Americans are routinely meted out.28 Nothing in the foreseeable future internal to
the politics of the Death Belt is likely to reduce the role of capital punishment,
much less lead to its abolition.
Symbolic Role of Capital Punishment

There was a time when capital punishment could reasonably be believed to be an
effective means of fighting crime—at least, a necessary form of incapacitation,
since there was no adequate alternative prior to the development of prisons with
trained correctional staff. That time has long passed, as a century and a half without
the death penalty in Michigan and Wisconsin proves to anyone who cares to ex-
amine the record. Today, the death penalty plays a completely different role in
American life. What good it does, apart from providing incapacitation of executed
offenders, steady jobs for prison guards, frantic midnight labors for attorneys, sto-
ries for the media, and some vague sense of righteousness for those who believe
murderers deserve to die, is difficult to say. Advocacy of the death penalty, how-
ever, performs a clearer function.29
No doubt some governors, legislators, prosecutors, and judges who answer to
the electorate and publicly endorse the death penalty seriously believe that it is a
better deterrent than imprisonment, that it is not seriously racist in its administra-
tion, that it violates no one's human rights, and that it is a legitimate retribution
too infrequently practiced. But the invocation of these beliefs in political debate
has become essentially ritualistic. They are symbolic affirmations intended mainly
to respond to the public's fear of criminal victimization, smoldering indignation at
youthful violent offenders, and frustration over the apparent failure of government
to do anything about either. In today's electoral politics, a candidate's support for
the death penalty amounts to saying: "Believe me, I care about you and I hear
your anger and frustration. That's why I support the death penalty, whether or not
it would do any good in removing the objective causes of your distress. Knowing
where I stand ought to make you feel better—and more willing to put government
into my hands than in the hands of liberals who disagree with us over the death
penalty. They care more about the vicious criminals than they do about the victims
and law-abiding citizens like you and me." Thus, we confront a corollary of Gres-
ham's law, in which a debased political rhetoric drives out any reliance on the
facts and norms relevant to developing a sound public policy on punishment.
Conclusion
At the risk of oversimplifying, the controversy over the death penalty in the United
States today can be summarized as follows. Defenders of the death penalty believe
that despite needless expense and avoidable delay, capital punishment as actually
administered does a reasonable (not perfect) job of winnowing out the worst and
most dangerous offenders from among the bad—and that an even better job would
be done if the laws were changed to abolish frivolous appeals and to reduce costs
and the pileup on the nation's death rows. Opponents of the death penalty disagree;
they argue that the present system is but the latest version of death penalty practices
that cannot be justified, that no significant improvements are likely, and that moral
and practical objections to the death penalty ought therefore to prevail. The rest of
this book is given over to spelling out the facts and factors that must be taken into
account in deciding who has the better of this argument and why.
Notes
1. Clines 1992, reporting the research of Watt Espy, the nation's leading death penalty
archivist.
2. Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Min-
nesota, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.
In March 1995, New York reintroduced the death penalty; Kansas restored the death penalty
in April 1994.
3. For a sampling of anti-death penalty sentiment in this country from 1797 to 1975,
see Mackey ed. 1976.
4. In general for the period 1776-1865, see Masur 1989.
5. See Keedy 1949
6. See Acker and Lanier 1993a.

7. For marvelously detailed discussions of the death penalty in England between 1600
and 1900, see Linebaugh 1992; Gattrell 1994.
8. For a critical discussion of public executions, see Blum 1992.
9. N. Y. Times, 10 Feb. 1996, p. 9, and Dallas-Morning News, 10 Feb. 1996, p. 1A.
10. See Bedau 1976.
11. For further discussion, see Mello 1991 and Mello and Robson 1985.
12. For particular states, see Mackey 1975, 1982 (New York); Rogers 1993 (Massachu-
setts); Acton 1991 (Iowa); Elaine 1986 (New Hampshire).
13. See Mackey 1974 (Rhode Island); Lincoln 1987 (Michigan).
14. See Post 1944 and Savitz 1958 (both on Pennsylvania); Post 1945 (Ohio).
15. See Galliher, Ray, and Cook 1992. For particular states, see Hayner and Cranor 1952
(Washington); Guillot 1952 (Missouri); Dann 1952 (Oregon). See also Dressner and Al-
tschuler 1975 (New York). Galliher et al. 1995 have attempted to explain why abolition
efforts failed in many states.
16. For a full discussion, see Denno 1994a.
17. See San Francisco Examiner, 14 Jan. 1996, and N.Y. Times, 25 Oct. 1993, p. A15.
18. For a full discussion of current methods of execution in the United States, see Trom-
bley 1992.
19. See Cortner 1988.
20. See Carter 1979,
21. See Bennett 1958; Cobin 1964; Samuelson 1969.
22. See Bedau 1980.
23. The campaign is fully discussed in Meltsner 1973; see also Wolfe 1973; Bedau 1977.
24. For the abolition movement since 1972, see Raines 1996.
25. The story is told in some detail in Frady 1993.
26. Although there is disagreement over the annual number of death penalty commuta-
tions for the years 1973 through 1992, the total commutations for this period as reported
by the Bureau of Justice Statistics and by Radelet and Zsembik 1993 are virtually identical
(71 versus 70, respectively). It should also be noted that the reports of commutations by the
Bureau of Justice Statistics are extremely unstable, as virtually every issue of its ''Capital
Punishment" bulletin revises the reported commutation total of the previous year. For further
information on these discrepancies and on the decline of executive clemency in capital cases,
see Bedau 1990-91; Radelet and Zsembic 1993.
27. For more detail and a rather different account, see Zimring and Hawkins 1986:
126-^7.
28. Death Penalty Information Center 1991.
29. For a discussion of the symbolic significance of recent death penalty debates, see
Stolz 1983 (Congress); Koch and Galliher 1993 (Michigan).
PART I
The Laws, the Crimes,

and the Executions
Useful discussion of the death penalty needs reliable and up-to-date information
about several aspects of the criminal justice system and its current administration.
What, exactly, are the crimes now punishable by death? What kinds of modifications
are currently under review in the legislatures? How many capital crimes are commit-
ted each year, and how are they distributed around the nation, state by state? Who is
on death row, and what are the demographics of this population? How many prison-
ers have been executed? And apart from execution, how else do prisoners leave death
row? Finally, how does the use of the death penalty hi America compare with the rest
of the world? All these questions and more are addressed hi this part.
The statistical data presented here (with one exception to be noted shortly) are
supplied to the Department of Justice by state and local authorities for publication
annually in two different series: "Crime in the United States," also known as the
Uniform Crime Reports (UCR), is published by the Federal Bureau of Investigation
(FBI); "Capital Punishment" is published by the Bureau of Justice Statistics (BJS).
Both the FBI and the BJS are agencies of the U.S. Department of Justice. These
data are also republished annually in the Sourcebook of Criminal Justice Statistics.
The nongovernmental source relied on here for demographic information on pris-
oners under death sentence is available only from the series "Death Row, U.S.A.,"
published by the NAACP Legal Defense and Educational Fund (LDF).1
Capital Statutes
Chapter 2 presents a digest of capital offenses nationwide for the thirty-nine juris-
dictions (thirty-seven states, plus the federal civil and military jurisdictions) that
punish one or more crimes with death (see Tables 2-1 and 2-2).2 The death penalty
for all these crimes is discretionary; in sentencing a defendant convicted of a capital
crime, the jury must weigh any "aggravating" circumstances against any "miti-
gating" circumstances, and must find one or more of the former to have been
present if the defendant is to be sentenced to death. Table 2-3 shows the wide
divergence among the states over the statutes governing the age at which a defen-
dant can be tried as an adult on a capital charge.3
26
The Laws, the Crimes, and the Executions 27
Three things should be noted about the list of capital crimes. First, the crime of
murder, insofar as it is a capital offense, receives various definitions. The FBI uses
the concept of "murder and nonnegligent manslaughter," and defines it as the
"willful (nonnegligent) killing of one human being by another," thus including
second-degree murder and some forms of manslaughter. In Arizona, and in most
other states, the crime in question is described as "first-degree murder." In Ken-
tucky, however, it is "aggravated murder"; in Washington it is "aggravated first-
degree premeditated murder"; and in Arkansas it is called "capital murder." This
last phrase is sometimes used (and will be used here) to refer to the crime of
murder, however defined by statute, insofar as it is eligible for punishment by death.
Only by careful study of the exact statutory language and the relevant case law in
each jurisdiction can one tell just how much difference there really is among these
various conceptions of murder and exactly what kinds of criminal homicide are
subject to the death penalty.4
Second, since the "new" (post-1972) death penalty laws were enacted, no one
has been executed for any crime except some form of criminal homicide. The death
penalty for rape and for kidnapping was held by the Court in 1977 to be uncon-
stitutional (see part IV for a fuller discussion). The Supreme Court has not yet had
occasion to pass on the constitutionality of any of the nonhomicidal capital statutes
enacted since 1972 by the states or by Congress. These nonhomicidal crimes in-
clude treason (California, Georgia), aircraft hijacking (Georgia, Mississippi), ag-
gravated kidnapping (Idaho, South Dakota), and large-scale trafficking in drugs as
well as conspiring or attempting to kill witnesses, jurors, prosecutors, or others
involved in prosecuting defendants charged with engaging in a "continuing crim-
inal conspiracy" (federal jurisdiction).5 Whether a death sentence for any of these
crimes would survive the inevitable constitutional challenge is arguable.
Third, during the 1990s the most explosive growth in death penalty statutes has
occurred on the federal level. The 1996 revisions of federal habeas corpus enacted
by Congress sharply limit the availability of that writ to state death row prisoners
(see below, Chapter 18), just as the crime bill enacted by Congress the year before
increased the number of federal capital offenses by several dozen. True, these
statutes largely overlap with death penalty provisions already incorporated in the
laws of the states. The chief effect of these new statutes is twofold: They permit
the federal prosecutor in a state to preempt jurisdiction from the state prosecutor;
and if the federal prosecutor secures a conviction under one of these statutes, it
does not matter whether the state law provides a death penalty for the crime in
question. Congress has thus effectively nationalized the death penalty. It remains
to be seen whether there will be any or many federal prosecutions for crimes in
states where the crime hi question is not capitally punishable under state law.
Expanding and Modifying the Death Penalty
Chapter 3 presents extracts from a recent (1994) annual survey of state death penalty
legislation prepared and distributed by the National Coalition to abolish the Death
28 The Laws, the Crimes, and the Executions
Penalty (NCADP). The survey shows that in all but fourteen of the fifty states, one or
more bills were filed during 1994 to reinstate, expand, revise, or repeal the death pen-
alty. Most such bills failed to come to a vote, much less win enactment. Among the
few bills of some importance that did become law are these: reenactment of the death
penalty in Kansas; authorizing the state supreme court to review all death sentences
and scrutinize the grounds for the sentence—"proportionality review'' (Arizona and
Idaho); permitt the jury to hear victim-impact evidence during the penalty phase
(Louisiana); and authorizing the death penalty for the reckless killing of a child
whom the defendant had previously abused (Tennessee). Perhaps the most extreme
(serious?) proposal was offered by the Speaker of the House, Newt Gingrich, who
urged Congress to enact a mandatory death penalty for the importation of large quan-
tities of illegal drugs—and then carry out mass executions of those convicted of this
crime. In a speech late in August, Gingrich said: "The first time we execute 27 or 30
or 35 people at one time, and they go around Colombia and France and Thailand and
Mexico, and they say, 'Hi, would you like to carry some drugs into the U.S.?' the
price of carrying drugs will have gone up dramatically.' '6
Capital Crimes
Chapter 4 is devoted to information regarding criminal homicide—the offenders

and the victims.7 Table 4-1 shows that, during the two-decade period of 1974
through 1993, cases of murder and nonnegligent manslaughter have fluctuated from
a low in 1984 of 18,690 to a high in 1993 of 24,530. Numerous as these crimes
are, in 1993 they constituted less than 0.2 percent of all the violent crimes reported
to the FBI.8 If we shift from the volume to the rate of criminal homicide (Table
4-2), we see that it has fluctuated from a low in 1984-85 of 7.9 victims per 100,000
population to a high hi 1980 of 10.2. In 1993, the national criminal homicide rate
was slightly lower than what it had been twenty years earlier (9.5 versus 9.8). If
we look at the nation's ten leading causes of death (Table 4-3), we see that in 1992
homicide ranked tenth, just behind suicide and AIDS, and well behind the great
killers: heart disease, cancer, and stroke. At the same time, for reasons not fully
understood, the nation's homicide rate dropped hi 1994 for the third year in a row.9
Finally, if we look at the murder rates for abolition states in the 1990s and compare
them with the rates in death penalty states (Table 4-4), we see that the rates are
generally lower in the abolition states, although in both kinds of jurisdictions these
rates wax and wane.
If we shift from these aggregate numbers to look at the age, race, and gender
of arrested murderers (and assume that the demographic characteristics of those
arrested hold true of the offenders not arrested), the following picture emerges:
First, criminal homicide is by and large a crime committed by men. In 1993, of
the total volume of this crime reported in this category (19,400), almost 90 percent
(17,600) of these crimes were committed by men.10 Likewise, the victims of crim-
inal homicide are predominantly men. A decade ago, the BJS reported that more
than three times as many men are murdered as are women;11 Table 4-5 confirms
this pattern. Second, criminal homicide is substantially a crime of the young.12 In

1993, as the numbers in Table 4-6 show, 60 percent of all arrested offenders were
between the ages of fifteen and twenty-four. Elsewhere we learn that in the 1990s
so far, the homicide rate is slowly dropping among adults at the same time it is
increasing sharply among the young: Between 1985 and 1991, the number of 17-
year-old homicide arrestees more than doubled13 and in the decade 1986-1996 the
number of youths ages 14 to 17 arrested for homicide more than tripled.13
Finally, criminal homicide is disproportionately a crime committed by nonwhites.
In 1993, according to the FBI,15 out of 20,243 persons reported arrested in this cate-
gory, all but 41 percent were nonwhite. At a time when African-Americans consti-
tuted about 12 percent of the nation's total population, 58 percent of all those arrested
for criminal homicide were African-Americans. African-American males are also
chiefly the victims of murder; a black man in America has roughly one chance in
twenty-eight of being murdered during his lifetime, five times the likelihood a white
male has.16 Given the data reported here on the age, sex, and race of arrested murder-
ers, it would appear that a considerable proportion of all criminal homicide in the
United States today is committed by a minority of young black males.
Since data reported elsewhere in this part show that, as of the end of 1994, the
nation's death row population was 40 percent African-American and 49 percent
white, it may come as a surprise to those who believe the death penalty is blatantly
racist in character to learn that black murderers are slightly less likely to end up
on death row than are their white counterparts. Table 5-9 shows that killers of
whites are far more likely to be sentenced to death than are killers of blacks, and
the asymmetry in the distribution of racial crossover killings fits this pattern. Killers
of blacks (whether white or black) rarely get sentenced to death, much less exe-
cuted, whereas killers of whites (whether white or black) are far more at risk. As
the numbers reported in Table 4-7 show, 90 percent of black murder victims were
killed by black offenders and 83 percent of white victims were murdered by white
offenders: Murder does not often cross racial lines.17 This table also shows that at
present black murder victims outnumber white murder victims, despite the fact that
whites constitute about 80 percent of the nation's population. Murder, in short, is
a social problem that plagues African-American communities to a far greater extent
than it does the white population. (For more about race and the death penalty, see
part V.)
Although murder rarely crosses racial lines, it does cross gender differences: the
FBI reports that "9 out of every 10 female victims were murdered by males."18
As for the weapons used to commit murder, Table 4-8 shows that in the five-
year period 1989 to 1993, guns were used in approximately seven of every ten
murders—and the weapon of choice is a handgun. Whether effective gun control
would result in fewer murders or only in fewer murders caused by handguns is an
empirical question not yet answered to everyone's satisfaction. Evidently, long guns
(rifles and shotguns)—since they cannot be easily concealed—play a minor role
in the murderer's armory.
Table 4-9 shows us that circumstances in which murder is committed are quite
varied; verbal disputes of various sorts apparently are the salient provocation. By
contrast, brawls arising from the influence of alcohol or narcotics that result in
murder are infrequent. So are several types of felony murder (homicide committed
in the course of rape, burglary, arson, kidnapping, or other felony). Felony-murder-
robbery, typically a crime between strangers, constitutes only 10 percent of all
murders; it is the kind of crime most likely to lead to a death sentence. Juvenile
gang killings show explosive growth—a 100 percent increase—between 1989 and
1993. Narcotics traffic murders are also a significant fraction of the whole. Whether
the death penalty could be expected to serve as an effective deterrent for all or
even any of these different types of murder is obviously an important question (it
is discussed in some detail in part III).
Death Row Prisoners
Chapter 5 is devoted to statistical data concerning death row prisoners. Table 5-1
presents the racial breakdown (Asian, black, Latino, Native American, white, and
unknown) of all persons on the nation's death rows as of the end of 1995. Tables
5-2 and 5-3, covering the two decades 1973-95, report the race and jurisdiction of
juveniles (i.e., youths under the age of eighteen) and women sentenced to death,
respectively.19 Table 5-4 reports, state by state, year by year (1974 through 1994),
the steady growth of the numbers of persons under death sentence. The next two
tables show the final disposition of all death row prisoners (including cases still
pending) during the years 1973-94; these data are reported annually (Table 5-5)
and by jurisdiction (Table 5-6). (Readers interested in the prior criminal history of
those currently on death row should turn to Table 11-1 in chapter II.)20
Prisoners Executed
Table 5-7 shows the number of persons executed since 1977 by each of the five
lawful methods of execution. Table 5-8 reports the names, jurisdictions, race, and
age (at the time of the crime and at the time of execution) of each of the juveniles
executed since 1977. Table 5-9 shows the sensitivity of execution to the race of
the victim. It does show that execution of a white for killing a black is not entirely
unknown, but it is rare—only two cases since 1977; only thirty have been identified
in the nation's history.21 Table 5-10 shows the number and percentage of all those
sentenced to death who were executed in each jurisdiction during years 1973-94.
The number ranges from a low of zero (no executions in sixteen death penalty
jurisdictions, one of which had imposed no death sentences) to a high of 22 percent
in Virginia, followed by Utah with about 17 percent and Texas with about 13
percent. This table also shows that three of the five states with the most death row
prisoners were among the states with the least frequent executions.
What does not appear in these tables is the number of executions in which the
prisoner ceases to pursue appeals or clemency and accepts death, as Gary Gilmore
did in Utah in 1977 when he inaugurated the current era of executions in the United
States. The LDF reports that as of April 1996, 43, or 13 percent, of the 328
executions since 1977 have been consensual.22 BJS also does not report the number
of botched executions, where something goes wrong with the apparatus or the
procedure, e.g., the electric chair malfunctions and the prisoner burns before he
dies, or the lethal drugs are administered in an incorrect dosage causing the prisoner
to die gasping and choking.23
Risk of Execution
A clearer picture of the death penalty's role in the nation's current criminal justice
system can be obtained by the simple expedient of examining a handful of numbers
(rounded off for ease of discussion):
22,000
15,000
13,500
10,000
2-4,000
250
22
The first and largest number—22,000—is the average annual number of criminal
homicides reported by the FBI under its rubric of "murder and nonnegligent man-
slaughter" for the decade 1984-93 (recall Table 4-1). The second number—
15,000—is an estimate of the annual average total of arrests for criminal homicide
during the same years, based on a nationwide "clearance" (arrest) rate of 66 per-
cent.24 The third number—13,500—represents the volume of criminal homicide
cases actually prosecuted; according to the FBI, this is about 90 percent of those
arrested on a charge of criminal homicide.25 The fourth number—10,000—is an
estimate of the total annual average over the same years of convictions for some
form of criminal homicide, roughly two-thirds of those arrested26 and nearly three-
fourths of all those prosecuted. If 1988 may be taken as typical, more than half
(56 percent) of these convictions were obtained by a guilty plea, more than a third
(36 percent) only after a jury trial, and the small remainder (8 percent) by the judge
sitting alone.27
If we are to use the first four numbers in this list to shed light on the risk of
execution, each needs to be recalculated downward so as to exclude all murders,
arrests, prosecutions, and convictions in the jurisdictions that do not authorize the
death penalty; a murderer in a noncapital jurisdiction runs no risk of execution.
(At a guess, such recalculation would result in a reduction of up to 20 percent in
each of the four numbers so far discussed.)
The fifth number represents all and only the convicted murderers who are at
risk for a death sentence in capital jurisdictions. Only a fraction of murder, defen-
dants are subject to a possible death sentence; homicide convictions for second-
degree murder or voluntary manslaughter are not "death-eligible." Neither are all
first-degree murders. Those that remain are the murders in which the ' 'aggravating
circumstances" are so grave or numerous and the "mitigating circumstances" so
slight or few that the jury is receptive to the prosecution's argument for a conviction
of capital murder followed by a death sentence.28 (For a typical list of these two
kinds of circumstances as specified by statute, see pp. 203-205.)
The sixth number—250—is the annual average over the same decade of the
number of persons sentenced to death (recall Table 5-5). The enormous attrition
here between more than two to four thousand death-eligible convictions annually
and only 250 or so actual death sentences is largely a result of either the prose-
cutor's decision not to seek the death penalty in the first place (perhaps as a plea
bargain in exchange for the defendant's guilty plea and testimony against codefen-
dants) or the jury's sentencing decision (finding one or more mitigating circum-
stances that outweigh the aggravating circumstances). The seventh and final number
in this set—22—is the average annual number of persons actually executed during
the past decade (recall Table 1-3). This number seems to be on the increase. So
far during the 1990s the average is more than thirty, and during 1995, fifty-six
prisoners were executed—nearly double the number in 1994 and more than in any
year since 1957.29
Reduced to ratios, what these figures tell us is roughly this:
• One person is executed each year for every 1,000 criminal homicides.
• One person is executed each year for every 700 arrested for criminal homicide.
• One person is executed each year for every 450 convicted of criminal homi-
cide.
• One person is executed each year for every 100 on death row.
• One person exits death row each year by execution for every 10 who are
admitted to death row.
There is much that these figures do not tell us, for example, the plea bargaining
role played by the death penalty in securing confessions and thus solving crimes
that otherwise would be dismissed for want of adequate evidence for a prosecution.
Even so, the attrition reflected in these numbers is little short of astounding. One
can hardly avoid the inference that, in the recent past, the death penalty—whether
measured by the ratio of executions to death sentences, or to homicide convictions,
or to the homicides themselves—plays a very small role in the overall "war on
crime" endlessly waged by the police, the courts, and the politicians. (Twenty
years ago criminologists Norval Morris and Gordon Hawkins put the point even
more firmly: The death penalty, they wrote, is of "marginal significance [and]
singular inconsequence" to the problem of "effective prevention of crime and the
treatment of offenders" (79, 82). The data conveyed in Tables 5-5 and 5-6 (show-
ing the final disposition of all those sentenced to death between 1973 and 1993)
and in Table 5-10 (showing the percentage, state by state, of death row prisoners
executed in these two decades) reinforce the conviction that actual executions are
still something of a rarity and can be averted in many ways, including suicide.
(Suicide while awaiting execution of a death sentence is not identified as such in

these BJS tables; it is buried in the columns entitled ''Other death" and "Died."
For the record, between 1973 and early 1996, forty-five death row prisoners died
by their own hands.)30
Such subtleties aside, the chief question raised by this set of numbers is what
accounts for the extraordinary attrition. Both friends and enemies of capital pun-
ishment must wonder how a death penalty system of criminal justice can be taken
seriously when in a given year more than twenty thousand murders result in only
two dozen or so executions. Some defenders of the death penalty will reply that
this attrition represents a reasonably effective winnowing of the very worst of-
fenders from among the bad, which is precisely what we would want a death
penalty system to do in a civilized society. Others who favor the death penalty will
insist that the death penalty system in today's America must be made more effective
(used with greater certainty and frequency) and that the chief obstacles to this end
are the seemingly endless, frivolous appeals in state and federal courts. In later
chapters we will have an opportunity to consider such complaints in light of more
evidence.
Worldwide Status of the Death Penalty
The final chapter in this part presents a brief tabular report on the status of the
death penalty around the world, based on the most recent survey by Amnesty
International (AI). From its international headquarters in London, AI conducts a
vigorous international campaign against torture, detention without charge or trial,
summary executions, and the death penalty. As this report shows, our immediate
neighbors, Canada (by law) and Mexico (by practice), have abolished the death
penalty for all crimes. So have most of the countries of Central and South America,
though the British possessions and former colonies in the West Indies retain it. In
Western Europe most countries have abolished the death penalty for all crimes;
those few that retain it do so only for crimes committed in wartime or under
military law. A few other countries are (like Mexico) de facto abolitionist, having
carried out no executions in recent decades. In Eastern Europe, however, most of
the nations that have emerged out of the erstwhile Soviet Union and Yugoslavia
still retain the death penalty; so does Turkey. However, in March 1996, Amnesty
International reported that Russia had agreed to an immediate moratorium on ex-
ecutions, as a condition for joining the Council of Europe. Two months later,
German news sources reported that Russian President Boris Yeltsin had signed an
order to abolish the death penalty; the report did not indicate when the new decree
would become effective. Elsewhere in the world, save for Israel, the death penalty
is used with some frequency, whether more or less than in earlier decades it is
difficult to say. Late in June 1996, a Reuters dispatch reported that "China was
believed to have executed hundreds of drug traffickers" after having sentenced
nearly 800 to death (Macartney 1996).
No doubt the most remarkable abolitionist step taken in recent years occurred
early in June 1995, when the new supreme court of South Africa ruled that the
death penalty was unconstitutional because it violated the prohibition against
"cruel, inhuman or degrading treatment or punishment." The eleven-member
court, ethnically and racially diverse, was unanimous.31 Only a few years ago South
Africa was among the leaders in issuing death sentences and carrying out execu-
tions by hanging. At that time, Oxford criminologist Roger Hood voiced the opin-
ion of many observers when he noted: "The situation in South Africa provides
little hope for any move toward abolition" (1989:20; for a brief account of the
practice of death sentencing and executions in South Africa in the late 1980s, see
Amnesty International 1989:204-207).
Is there a worldwide trend toward abolition? There certainly is such a trend in
international law, under the leadership of the United Nations and the Council of
Europe, which have all but outlawed the death penalty through several human rights
declarations, covenants, and treaties, as has been explained in thorough detail by
Canadian law professor William Schabas in his book The Abolition of the Death
Penalty in International Law (1993). The United States, however, has consistently
kept itself aloof from all such commitments; an awkward legal situation is rapidly
developing for our government as a consequence. (I have provided a brief discus-
sion of its origin in chapter 19.)
Notes
1. Another nongovernmental source of great value is the annual review of death penalty
developments in the U.S.A., as well as other reports, published by Amnesty International
in London; see Amnesty International 1987, 1992, 1993, 1994, 1995b, 1996a, 1996b.
2. For information regarding capital statutes earlier in this century, see Savitz 1955;
Deets 1948; Bye 1919.
3. For more information on the death penalty and juveniles, see Streib 1987, 1988;
Merlo 1995. In 1994 the Florida Supreme Court ruled that no one under age sixteen at the
time of the crime could be sentenced to death; see Ft. Lauderdale Sun-Sentinel, 25 March
1994.
4. Since the Supreme Court's rulings in Gregg and allied cases in 1976, the legal
definition of capital murder has undergone various changes, tending to make it less a crime
of malicious intention (the traditional conception) and more "objective," so that lethal
results—whatever the intention—constitute murder. For discussion, see Acker and Lanier
1993a; Givelber 1994.
5. For a discussion of the bills introduced in 1990, see Dingerson 1990-91.
6. New York Times, 21 August 1995, p. 14.
7. For recent discursive accounts of homicide in the United States, see, e.g., Danto,
Bruhns, and Kutscher 1982; Reidel, Zahn, and Mock 1985; Daly and Wilson 1988; Holmes
and Holmes 1994.
8. UCR 1993, p. 8.
9. N.Y. Times, 24 Oct. 1995, p. A19.
10. UCR 1993, p. 226, Table 37.
11. BJS, "The Risk of Violent Crime," 1985, p. 2.
12. See Fox 1995. A graph published in the Boston Globe for 27 July 1995, p. 34, shows
that the homicide rate among those over age twenty-five is slowly declining (from about 8
per 100,000 population in 1976 to about 5 in 1993), whereas it was twice this rate in 1976
for those (mostly men) between age eighteen and twenty-four, and as of 1993 was five times
the rate for those over twenty-five.
13. N.Y. Times, 19 Oct. 1992, p. A8.
14. N.Y. Times, 12 May 1996, p. 1.
15. UCR 1993, p. 235, Table 43.
16. See Colburn 1990; Mydans 1990.
17. This generalization is sharply criticized in Wilbanks 1986. Surprisingly, racial cross-
over murder receives no discussion in the sources cited in note 7.
18. BJS, "The Risk of Violent Crime," 1985, p. 2.
19. For further information on death sentences and executions for women, see Streib
1990, 1992; Streib and Sametz 1989. See also Rapaport 1990, 1991.
20. For case histories of many death row prisoners, see the annual series Death Row,
published beginning in 1989 by Glen Hare Publications.
21. See Radelet and Mello 1986; Radelet 1989b; Brown 1995.
22. LDF, "Death Row, U.S.A.," Spring 1996, pp. 1, 10. For discussions of consensual
executions, see Urofsky 1984; White 1987.
23. For a discussion of some recent botched executions, see Weinstein and Bessent 1996:
101-106.
24. UCR 1993, p. 207. However, elsewhere in this volume (p. 217) the "total arrests"
for 1993 is "estimated" at 95 percent of all the criminal homicide reported. As this ex-
tremely high percentage is unsupported by any other facts, the lower percentage is used in
the text.
25. See the following BJS reports: "Felony Sentences in State Courts 1992," p. 2;
"Tracking Offenders, 1984," p. 2; "Tracking Offenders, 1987," p. 2; and "Felony Sen-
tences in State Courts, 1988," p. 4.
26. See UCR 1993, p. 287; cf. BJS, "Felony Sentences in State Courts, 1992," p. 5,
estimating the prosecution/conviction rate at 65 percent.
27. Sourcebook of Criminal Justice Statistics 1990, p. 517, Table 5.34.
28. Baldus, Pulaski and Woodworm, 1990:235.
29. See "56 Executions This Year Are Most Since 1957," New York Times, 30 Dec.
1995, p. 28.
30. NAACP, "Death Row, U.S.A.," Spring 1996, p. 1.
31. See New York Times, 1 June 1995, pp. A3, A29. The full text of the decision and
opinion appears in 16 Human Rights L. J. (30 Sept. 1995): 154-208; for a full discussion
see Schabas 1995b. For further information on the worldwide status of the death penalty,
see Hood 1989, 1996; Hodgkinson and Rutherford 1996.
In addition to the influential global abolitionist agenda of AI, nominally initiated with
the founding of AI in 1961 and active since its Stockholm Conference of December 1977,
the Transnational Radical Party (created by the Italian Partito Radicale) has recently founded
a wholly independent international abolitionist group, Hands Off Cain. The organization
held its first congress in Brussels, Belgium, in December 1993. See the 1994 publication
by Citizens and Parliamentarians Campaign for the Abolition of the Death Penalty World-
wide by 2000.
It is interesting to note the way in which this organization and the Vatican have (simul-
taneously but presumably quite independently) seized on the biblical story of Cain and Abel
to focus reflection on what is morally wrong with the death penalty. See note 16 in the
introduction to part VII.
2
Offenses Punishable by Death
Table 2-1.
Offenses Punishable by Death: State Jurisdictions, 1993
Alabama. Murder during kidnaping, robbery, rape, sodomy, burglary, sexual assault, or arson;
murder of a peace officer, correctional officer, or public official; murder while under a life sen-
tence; murder for pecuniary gain or contract; aircraft piracy; murder by a defendant with a pre-
vious murder conviction; murder of a witness of a crime; murder when a victim is subpoenaed
in a criminal proceeding, when the murder is related to the role of the victim as a witness; murder
when a victim is less than 14 years old; murder in which a victim is killed while in a dwelling
by a deadly weapon fired from outside the dwelling; murder in which a victim is killed while in
a motor vehicle by a deadly weapon fired from outside that vehicle; murder in which a victim is
killed by a deadly weapon fired from a motor vehicle (13A-5-40).
Arizona. First-degree murder accompanied by at least 1 of 10 aggravating factors.
Arkansas. Capital murder as defined by Arkansas statute (5-10-101). Felony murder; arson caus-
ing death; intentional murder of a law enforcement officer, teacher or school employee; murder
of prison, jail, court, or correctional personnel or of military personnel acting in line of duty;
multiple murders; intentional murder of a public officeholder or candidate; intentional murder
while under life sentence; contract murder.
California. Treason; homicide by a prisoner serving a life term; first-degree murder with special
circumstances; train wrecking; perjury causing execution.
Colorado. First-degree murder; kidnaping with death of victim; felony murder. Capital sentenc-
ing excludes persons determined to be mentally retarded.
Connecticut. Murder of a public safety or correctional officer; murder for pecuniary gain; murder
in the course of a felony; murder by a defendant with a previous conviction for intentional murder;
murder while under a life sentence; murder during a kidnaping; illegal sale of cocaine, methadone,
or heroin to a person who dies from using these drugs; murder during first-degree sexual assault;
multiple murders; the defendant committed the offense(s) with an assault weapon.
Delaware. First-degree murder with aggravating circumstances.
Florida. First-degree murder; capital felonies (FS 921.141); capital drug trafficking felonies (FS
921.142).
Georgia. Murder; kidnaping with bodily injury when the victim dies; aircraft hijacking; treason;
kidnaping for ransom when the victim dies.
Idaho. First-degree murder; aggravated kidnaping.
Illinois. First-degree murder accompanied by at least 1 of 12 aggravating factors.
(continued)
36
Offenses Punishable by Death 37
Table 2-1 (continued)
Indiana. Murder with 13 aggravating circumstances.

Kentucky. Aggravated murder; kidnaping when victim is killed.
Louisiana. First-degree murder; treason (La. R.S. 14:30 and 14:113).
Maryland. First-degree murder, either premeditated or during the commission of a felony.
Mississippi. Capital murder includes murder of a peace officer or correctional officer, murder
while under a life sentence, murder by bomb or explosive, contract murder, murder committed
during specific felonies (rape, burglary, kidnaping, arson, robbery, sexual battery, unnatural in-
tercourse with a child, nonconsensual unnatural intercourse), and murder of an elected official.
Capital rape is the forcible rape of a child under 14 years old by a person 18 years or older.
Aircraft piracy.
Missouri. First-degree murder (565.020 RSMO).
Montana. Deliberate homicide; aggravated kidnaping when victim or rescuer dies; attempted
deliberate homicide, aggravated assault, or aggravated kidnaping by a State prison inmate who
has a prior conviction for deliberate homicide or who has been previously declared a persistent
felony offender (46-18-303, MCA).
Nebraska. First-degree murder.
Nevada. First-degree murder with 9 aggravating circumstances.
New Hampshire. Contract murder; murder of a law enforcement officer; murder of a kidnaping
victim; killing another after being sentenced to life imprisonment without parole.
New Jersey. Purposeful or knowing murder; contract murder.
New Mexico. First-degree murder; felony murder with aggravating circumstances.
North Carolina. First-degree murder (N.C.G.S. 14-17).
Ohio. Assassination; contract murder; murder during escape; murder while in a correctional fa-
cility; murder after conviction for a prior purposeful killing or prior attempted murder; murder
of a peace officer; murder arising from specified felonies (rape, kidnaping, arson, robbery, bur-
glary); murder of a witness to prevent testimony in a criminal proceeding or in retaliation (O.R.C.
sees. 2929.02, 2903.01, 2929.04).
Oklahoma. Murder with malice aforethought; murder arising from specified felonies (forcible
rape, robbery with a dangerous weapon, kidnaping, escape from lawful custody, first-degree bur-
glary, arson); murder when the victim is a child who has been injured, tortured, or maimed.
Oregon. Aggravated murder.
Pennsylvania. First-degree murder.
South Carolina. Murder with statutory aggravating circumstances.
South Dakota. First-degree murder; kidnaping with gross permanent physical injury inflicted on
the victim; felony murder.
Tennessee. First-degree murder.
Texas. Murder of a public safety officer, fireman, or correctional employee; murder during the
commission of specified felonies (kidnaping, burglary, robbery, aggravated rape, arson); murder
for remuneration; multiple murders; murder during prison escape; murder by a State prison inmate;
murder of an individual under 6 years of age.
(continued)
Table 2-1
Offenses Punishable by Death: State Jurisdictions, 1993 (continued)
Utah. Aggravated murder (76-5-202, Utah Code annotated).

Virginia. Murder during the commission or attempts to commit specified felonies (abduction,
armed robbery, rape, sodomy); contract murder; murder by a prisoner while in custody; murder
of a law enforcement officer; multiple murders; murder of a child under 12 years during an
abduction; murder arising from drug violations (18.2-31, Virginia Code as amended).
Washington. Aggravated first-degree premeditated murder.
Wyoming. First-degree murder, including both premeditated and felony murder.
Source: BJS, "Capital Punishment, 1993," p. 5, Table 1.

Table 2-2.
Federal Death Penalty, 1994
Newly created (1994) federal crimes punishable by death include:
• Drive-by shootings which result in death (18 U.S.C. § 36);
• Drug trafficking in large quantities, even where no death results (18 U.S.C. § 3591(b)(l));
• Attempting, authorizing or advising the killing of any public officer, juror or witness in a case in-
volving a continuing criminal enterprise—regardless of whether such a killing actually occurs (18
U.S.C. § 3591(b)(2));
• Murder at a United States international airport (18 U.S.C. § 36);
• Murder by an escaped federal prisoner (18 U.S.C. § 1120);
• Murder by a federal life-term prisoner (18 U.S.C. § 1120);
• Murder by gun during federal crimes of violence and drug trafficking offenses (18 U.S.C. § 924(i));
• Murder involving firearm or other dangerous weapon during attack on federal facilities (18 U.S.C. §
930(c));
• Murder of federal jurors and court officers (18 U.S.C. § 1503(b));
• Murder of a federal witness, victim or informant (18 U.S.C. § 1513(a));
• Murder of a state correctional officer by a federal prisoner (18 U.S.C. § 1121);
• Murder of state or local officials engaged in assisting federal law enforcement officials (18 U.S.C. §
1121);
• Murder of a United States national abroad (18 U.S.C. § 1118);
• Murder of United States national abroad by terrorism (18 U.S.C. § 2332);
• Murder within the special maritime and territorial jurisdiction of the United States (18 U.S.C. §§
2280, 2281);
• Smuggling aliens where death results (8 U.S.C. § 1324(a)(B)(iv));
• Torture resulting in death outside the United States (18 U.S.C. § 2340(A));
• Using weapons of mass destruction (for example, biological weapons or poison gas) which result in
death (18 U.S.C. § 2332a).
Existing federal crimes to which a death penalty was added (1994) include:
• Carjacking which results in death (18 U.S.C. § 2119);
• Child molestation committed within federal territorial jurisdiction which results in death (18 U.S.C.
§ 2245);
• Genocide (18 U.S.C. § 1091);
• Hostage taking which results in death (18 U.S.C. § 1203);
• Murder for hire involving interstate travel or the use of interstate facilities (18 U.S.C. § 1958);
• Murder for the purpose of aiding racketeering activity (18 U.S.C. § 1959);
• Sexual abuse committed within federal territorial jurisdiction resulting in death (18 U.S.C. § 2245);
• Violating a person's federally-protected rights based on race, religion or national origin, where death
results (18 U.S.C. §§ 241, 242, 245, 247).
So-called zombie federal statutes (enacted prior to Furman but never revised in accordance with the
Supreme Court's rulings in Gregg, Jurek, and Profitf) recently revived (1994) include:
• Aircraft hijacking which results in death (49 U.S.C. § 1473);
• Assassination of the President or Vice-President (18 U.S.C. § 1751(a));
• Assassination of Members of Congress, Cabinet Members, Supreme Court Justices, and major pres-
idential or vice presidential candidates (18 U.S.C. § 351);
• Destroying aircraft, motor vehicles or then* facilities where death results (18 U.S.C. § 34);
• Destroying federal property with explosives or by arson where death results (18 U.S.C. § 844(f));
• Destroying property used in interstate commerce with explosives or by arson in a manner resulting
in death (18 U.S.C. § 844(i));
• Espionage (18 U.S.C. § 794);
• First degree murder on federal land or federal property (18 U.S.C. § 1111);
(continued}
Table 2-2.
Federal Death Penalty, 1994 (continued)
• Kidnapping which results in death (18 U.S.C. § 1201);

• Killing or attempted killing by a drug kingpin of a public officer or juror for the purpose of
obstructing justice (18 U.S.C. § 3591(b)(2));
• Mailing harmful articles (for example, explosives) where death results (18 U.S.C. § 1716);
• Murder of federal law enforcement officials or employees (18 U.S.C. § 1114);
• Murder of foreign officials or internationally-protected people on United States soil (18 U.S.C.
§ 1116);
• Robbery of a federally-insured bank where death results (18 U.S.C. § 2113(e));
• Train sabotage which results in death (18 U.S.C. § 1992);
• Transporting or receiving explosives with the intent to kill in a manner resulting in death (18
U.S.C. § 844(d));
• Treason (18 U.S.C. § 2381).
Source: Randall Coyne and Lyn Entzeroth, Capital Punishment and the Judicial Process, 1995 Sup-
plement, pp. 79-83.
Table 2-3.
Minimum Age Authorized for Capital Punishment, by Jurisdiction,
1994
Age less than 18 Age 18 None specified

Alabama (16) California Arizona
Arkansas (14)a Colorado Idaho
Delaware (16) Connecticut"1 Montana
Georgia (17) Federal system Louisiana
Indiana (16) Illinois Pennsylvania
Kentucky (16) Kansas South Carolina
Mississippi (16)b Maryland South Dakota6
Missouri (16) Nebraska Utah
Nevada (16) New Jersey
New Hampshire (17) New Mexico
North Carolina (17)c Ohio
Oklahoma (16) Oregon
Texas (17) Tennessee
Virginia (15) Washington
Wyoming (16)
Florida (16)
Note: Reporting by States reflects interpretations by State attorney general offices
and may differ from previously reported ages.
a
See Arkansas Code Ann.9-27-318(b)(l)(Repl. 1991).
b
Minimum age defined by status is 13, but effective age is 16 based on an inter-
pretation of U.S. Supreme Court decisions by the State attorney general's office.
c
Age required is 17 unless the murderer was incarcerated for murder when a
subsequent murder occurred; the age then may be 14.
d
See Conn. Gen. Stat. 53a-46a(g)(l).
e
Juveniles may be transferred to adult court. Age may be a mitigating circum-
stance. No one under age 10 can commit a crime.
3
Proposed State Death Penalty

Legislation, 1994
Table 3-1.
Proposed State Death Penalty Legislation, 1994
Alabama
Bills Filed Status
SB 23, making capitally punishable any killing of one or Died on Senate calendar
more persons during a continuous criminal enterprise.
SB 269, making capitally punishable three kinds of homi- Died on Senate calendar
cide.
HB 269, same as SB 269. Died in House committee
HB 273, same as HB 269. Enacted
HB 936, making capitally punishable killing a person by Died in House committee
a deadly weapon fired into a crowd.
Alaska
Bills Filed Status
SB 127, reinstating the death penalty for first-degree mur- Died in Senate committee
der.
HB 162, same as SB 127. Died in House committee
Arizona
Bills Filed Status
SB 1001, making capitally punishable death resulting Died in Senate committee
from child molestation.
SB 1002, authorizing state supreme court review of all Enacted
capital cases.
SB 1047, prohibiting the death penalty where the defen- Died in Senate committee
dant is able to prove insanity.
HB 2307, prohibiting the death penalty for persons under Died in House committee
18 at the time of the crime, persons mentally retarded,
and authorizing life without possibility of parole as the
alternative sentence to death.
(continued)
42
Proposed State Death Penalty Legislation, 1994 43
Arkansas
Bills Filed Status
No legislative session in 1994.
California
Bills Filed Status
SB 207, revising rules on the use of a defendant's record Assembly committee
in appeals.
AB 177, revising the law governing county jurisdiction Died in Assembly committee
authority to try a capital case involving multiple felonies
in several counties.
AB 961, authorizing state reimbursement to Marin Senate committee
County for certain costs in capital cases.
AB 1159, imposing the death penalty on anyone guilty of Died in Assembly committee
a violent offense who has been found guilty of two or
more prior violent offenses.
AB 1415, permitting anyone 16 or 17 charged with mur- Died in Assembly committee
der to be tried as a capital defendant.
AB 1455, prohibiting anyone mentally retarded from be- Died in Assembly committee
ing sentenced to death.
AB 1507, authorizing a death sentence to be carried out Died in Assembly committee
without further proceedings after expiry of a stay.
AB 2403, authorizing the court to ignore a petition for In Senate committee
stay of execution unless signed by the defendant.
AB 2443, imposing the death penalty on anyone con- In Assembly committee
victed of first-degree murder with conviction of three or
more prior violent felonies.
Initiative 631, imposing a mandatory death penalty on any- Failed
one guilty of first-degree murder, and reducing the mini-
mum age for capital punishment from 18 to 16.
Colorado
Bills Filed Status
SB 136, creating additional aggravating circumstances. Enacted
Connecticut
Bills Filed Status
HB 5708, requiring imposition of a death sentence if ag- Vetoed
gravating factors outweigh mitigating factors.
HB 5709, relieving state supreme court of duty to give Died on Senate calendar
proportionate review in capital cases.
(continued)
Table 3-1.
Proposed State Death Penalty Legislation, 1994 (continued)
Delaware
Bills Filed Status
SB 57, establishing the time of day for executions. Enacted
SB 92, authorizing five new aggravating circumstances. Enacted
SB 212, requiring automatic review of a death sentence Died on Senate calendar
by higher court, unless waived by defendant.
HB 222, repealing the death penalty. Died in House committee
Florida
Bills Filed Status
SB 294, authorizing continuation of exemption of public- Passed in Senate, died in
ity identifying public executioner(s). House
SB 1214, providing for continued effect of execution Died in Senate committee
warrants and related matters.
SB 1984, authorizing a death penalty for anyone con- Died in Senate committee
victed for the third time of certain sexual batteries.
HB 125, identical with SB 1214. Died in House committee
HB 353, prohibiting repeal of exemption requiring pub- Enacted
licly identifying public executioner.
Georgia
Bills Filed Status
SB 440, revising law governing detention of a juvenile Enacted
accused of a capital offense.
SB 441, imposing death or life without possibility of pa- Enacted
role for a defendant convicted of a serious violent felony
after having been convicted of a prior violent felony but
not sentenced to death.
SB 483, overlaps with SB 441, and restricts the activities Died in Senate committee
of such a convict while in prison.
SR 395, to amend the state constitution to prohibit pardon Passed in Senate for inclu-
of anyone whose death sentence was commuted to life sion on 1994 ballot
imprisonment unless at least 25 years of that sentence had
been served.
SR 405, to amend the state constitution to require a life Died in Senate committee
sentence without possibility of parole for anyone con-
victed of a serious violent felony who has two such prior
convictions.
HB 1198, imposing the death penalty for a drive-by hom-
icide. Enacted
(continued)
Hawaii
Bills Filed Status
SB 2740, to restore the death penalty for first-degree Died in Senate committee
murder.
Idaho
Bills Filed Status
SB 1302, authorizing state supreme court to conduct pro- Enacted
portionality review of all death sentences.
Illinois
Bills Filed Status
SB 243, enacting additional aggravating circumstances. In Senate committee
SB 244, enacting additional aggravating circumstances. In Senate committee
HB 2167, essentially identical to SB 244. Under study
HB 3089, expanding the list of felonies in which any
homicide is felony murder. On House calendar
Indiana
Bills Filed Status
HB 1002, prohibiting execution of the mentally retarded. Died in House committee
HB 1063, enacting additional aggravating circumstances Enacted
and authorizing a sentence of life in prison without possi-
bility of parole for anyone not sentenced to death when
one or more aggravating circumstances is present.
Iowa
Bills Filed Status
No bills filed for 1994.
Kansas
Bills Filed Status
SB 473, restoring the death penalty for first-degree mur- Enacted
der.
HB 2578, authorizing the death penalty for certain Passed in House
crimes.
Kentucky
Bills Filed Status
SB 155, providing life imprisonment without possibility Died in Senate committee
of parole as the alternative to a death sentence.
SB 265, authorizing use of statistical evidence to show Died in Senate Committee
racial bias in death sentencing.
HB 22, authorizing death by lethal injection and related Died in House committee
regulations. (continaued)
Table 3-1.
HB 138, authorizing life without possibility of parole or Died in House committee

life with possibility of parole after 20 years as alterna-
tives to a death sentence, and requiring the trial judge in
a capital case to conduct a sentencing hearing.
HB 197, increasing the length of prison term for a defen- Died in House committee
dant not sentenced to death.
HB 375, transferring any juvenile 14 or older charged Died in House committee
with a capital crime to trial as an adult.
HB 412, equivalent to SB 155. Died in House committee
HB 601, augmenting the list of aggravating circum- Died in Senate committee
stances.
Louisiana
Bills Filed Status
HB 1, requiring jury in a capital case to hear victim- Enacted
impact evidence.
HB 85, prohibiting death or life sentence prisoner from Vetoed
applying for pardon prior to serving 10 years.
HB 191, abolishing the death penalty. Died in committee
HB 208, authorizing the death penalty for aggravated rape Died in committee
when victim is under 12.
HB 326, identical with HB 85 Died in committee
HB 331, identical with HB 1. Died in committee
HB 384, requiring a death sentence to be carried out Died in Committee
within 5 years of its imposition.
Maine
Bills Filed Status
Maryland
Bills Filed Status
SB 74, expanding the list of aggravating circumstances. Died in House committee
SB 80, allowing a death-sentenced prisoner to waive an Died in Senate committee
automatic stay of execution.
SB 251, altering deadline for filing postconviction petition Died in Senate committee
and shortening the period of automatic stay of execution.
SB 303, altering various procedural requirements in death Died in Senate committee
penalty cases.
SB 304, changing the method of execution to lethal injec- Died in Senate committee
tion.
SB 305, providing a referendum to modify change of Died in House committee
venue conditions in capital trials. (continued)
SB 440, authorizing use of statistics to establish influence Died in Senate committee

of race in capital sentencing.
HB 137, substantially identical to SB 304. Died in House committee
HB 485, companion bill to SB 304. Died in House committee
HB 498, substantially equivalent to SB 304. Enacted
HB 499, companion bill to SB 303. Died on Senate floor
HB 791, companion bill to SB 440. Died in House committee
HB 806, proposing various changes in substantive and Died in House committee
procedural laws concerning the death penalty.
HB 1006, overlaps with SB 80, and expands waiver by Died in House committee
capital defendants of certain rights.
HB 1149, includes provisions of SB 304 and HB 498, Died in House committee
and redefines the numbers and kinds of persons eligible
to observe an execution.
Massachusetts
Bills Filed Status
HB 1625, restoring the death penalty for first-degree mur- Died in Joint committee
der.
HB 2197, identical to HB 1625. Died in Joint committee
HB 4285, restoring the death penalty for several different Died in Joint committee
kinds of murder.
SB 147, enacting the death penalty for large-scale drug Died in Joint committee
trafficking.
Michigan
Bills Filed Status
SIR F, would amend the state constitution to permit rein- In Senate committee
statement of the death penalty.
Minnesota
Bills Filed Status
Mississippi
Bills Filed Status
SB 2441, abolishing requirement that physician attend ex- Died in Senate committee
ecution.
SB 2626, prohibiting a death penalty for anyone mentally Died on Senate calendar
retarded.
SB 2701, imposing requirements on jury sentencing to Died in Senate committee
death a defendant for carnal knowledge of a child under
14.
(continued)
Table 3-1.
Proposed State Death Penalth Legislation, 1994 (continued)
SB 2875, authorizing trial judge to sentence defendant to Died in Senate committee

life in prison without possibility of parole.
SB 2881, regulating trial jurisdiction in capital cases Died in Senate committee
when multiple offenses are involved.
SB 2928, authorizing replacement of trial judge unable to Died in Senate committee
conduct presentencing hearing.
SB 3097, requiring state supreme court to review all Died on Senate calendar
death sentences.
HB 114, authorizing trial jury to sentence defendant to Enacted
life without possibility of parole as alternative to a death
sentence.
HB 390, identical to SB 2875 Died in House committee
HB 1002, requiring medical authority to witness and cer- Enacted
tify death of an executed prisoner.
HB 1005, authorizing death by lethal injection in case of Died in House committee
failure of gas chamber.
HB 1130, prohibiting a death penalty for anyone mentally Died in House committee
retarded.
HB 1160, prohibiting a death penalty for anyone under Died in House committee
18 at the time of the crime.
HB 1378, providing for reweighing and harmless error re- Died in House committee
view.
HB 1479, overlaps with SB 2928; requires trial judge to Died in House committee
impose sentence in capital cases, and changes aggravating
and mitigating circumstances.
Missouri
Bills Filed Status
SB 447, prohibits a death penalty for anyone under 16 at Died on Senate calendar
the time of the crime.
HB 1122, authorizes the death penalty for anyone who Died in House committee
kidnaps a person under 14.
Montana
Bills Filed Status
No session in 1994.
North Carolina
Bills Filed Status
SB 63, providing that a death sentence may be inflicted Died in Senate committee
in public either by electrocution, hanging, lethal gas, or
lethal injection in county seat where crime occurred.
HB 2, authorizing life without possibility of parole as an- Enacted
other alternative sentence to death. (continued)
HB 39, requires a life sentence without possibility of pa- Enacted

role, unless a death sentence is imposed, for anyone con-
victed for the third time as a violent habitual felon.
HB 47, substantially equivalent to HB 39. Died in House committee
HB 1062, prohibiting the death penalty for anyone men- Died in conference commit-
tally retarded. tee
HB 5112, making killing of a law officer a capital of- Died in House committee
fense.
North Dakota
Bills Filed Status
No session in 1994.
Nevada
Bills Filed Status
No session in 1994.
New Hampshire
Bills Filed Status
New Jersey
Bills Filed Status
SB 263, providing Me without possibility of parole for any- In Senate committee
prisoner whose death sentence is overturned on appeal.
SB 579, imposing a mandatory death penalty for murder In Senate committee
of a law officer while on duty.
AB 1053, substantially equivalent to SB 263. In Assembly committee
AB 1238, revising aggravating circumstances. In Assembly committee
AB 1703, substantially equivalent to SB 263. In Assembly committee
New Mexico
Bills Filed Status
New York
Bills Filed Status
SB 3139, reinstating the death penalty for first-degree In Senate committee
murder.
SB 3254, enacting the death penalty for felonious bomb- In Senate committee
ing.
SB 6350, reinstating the death penalty for first-degree Vetoed
murder, and increasing the scope of capitally punishable
murder.
(continued)
Table 3-1.
SB 6406, revising criminal procedures to provide for ad- In Senate committee

ministering the death penalty.
SB 6658, imposing the death penalty for anyone con- In Senate committee
victed of a violent felony after having two prior violent
felony convictions.
SB 6712, introducing procedures for imposing the death In Senate committee
penalty, and an alternative sentence of life in prison with-
out possibility of parole.
AB 5208, companion bill to SB 3139 In Assembly committee
AB 9237, providing a constitutional amendment to allow Died in Assembly committee
reinstatement of the death penalty without regard to exec-
utive approval.
AB 9666, substantially equivalent to SB 6712. Died in Assembly committee
AB 10039, imposing the death penalty for murder. Died in Assembly committee
Ohio
Bills Filed Status
SB 92, expanding the list of aggravating circumstances. In Senate committee
SB 183, limiting number of postconviction appeals by a In Senate committee
death row prisoner.
SB 195, permitting victim-impact testimony during sen- In Senate committee
tencing phase of a capital trial.
SB 253, expanding the list of aggravating circumstances. In Senate committee
HB 161, providing a life sentence without possibility of Passed in House; in Senate
parole for certain persons not sentenced to death. committee
HB 253, prohibiting imposing the death penalty on any- In House committee
one mentally retarded.
HB 610, expands the list of aggravating circumstances. In House committee
HB 689, providing life in prison without possibility of In House committee
parole as the only alternative to a death sentence.
HJR 15, placing on the ballot a requirement that the state Passed Senate committee,
supreme court consider all appeals in capital cases but filed with secretary of state
have discretion to refuse review in all other postconvic-
tion reviews.
Oklahoma
Bills Filed Status
SB 416, abolishing the death penalty for rape. Died in Senate committee
SB 468, identical to SB 416. Died in Senate committee
HB 1249, substantially revising procedural law in capital In Conference committee
cases.
(continued)
HB 1517, revising time between death sentencing and ex- Died in House committee
ecution and authorizing due notice of execution date.
HB 1888, denying bail to anyone under indictment for a Died in Senate committee
capital offense.
Oregon
Bills Filed Status
No session in 1994.
Pennsylvania
Bills Filed Status
SB 174, prohibiting a death sentence for the mentally re- In Senate committee
tarded.
SB 175, prohibiting a death sentence for anyone 17 or In Senate committee
younger at the time of the crime.
SB 802, requiring governor to sign a death warrant within In Senate committee
6 months after the date a death sentence is upheld by
state supreme court.
HB 313, substantially equivalent to SB 174. In House committee
HB 660, prohibiting a death sentence for anyone 18 or In House committee
younger at the time of the crime, and for anyone mentally
retarded.
HB 2050, requiring the state supreme court to notify the In House committee
governor within 60 days of upholding a death sentence.
HB 2198, incorporating HB 2050 and also providing for Vetoed; on Senate floor
the secretary of corrections to issue a death warrant upon
failure of the governor to do so within the prescribed
time period.
Rhode Island
Bills Filed Status
SB 2033, submitting to voters a nonbinding referendum Died in Senate committee
on reinstating the death penalty.
SB 2035, establishing lethal gas as the method of execu- Died in Senate committee
tion.
SB 3111, submitting to voters a proposition amending the Died in Senate committee
state constitution to permit the death penalty.
HB 7848, enacting a death penalty for terrorist activity Died in House committee
and accompanying procedures.
HB 8405, introducing the death penalty for first-degree Died in House committee
murder.
HB 8406, substantially equivalent to SB 3111. Died in House committee
HB 9030, enacting a death penalty for murder of a police Died in House committee
officer or firefighter and accompanying procedures. (continued)
Table 3-1.
HB 9128, providing a mandatory death penalty for killing Died in House committee
a law enforcement officer on duty.
South Carolina
Bills Filed Status
SB 72, permitting a death sentence to be issued if only Died in Senate committee
10 of 12 jurors favor imposing it.
SB 415, repealing the death sentence for murder and sub- Died in Senate committee
stituting life in prison without possibility of parole.
HB 4465, identical to SB 415. Died in House committee
HB 4675, identical to SB 72. Died in House committee
HB 5013, revising a variety of procedures in capital Died in House committee
cases.
South Dakota
Bills Filed Status
SB 112, abolishing the death penalty. Died in Senate committee
Tennessee
Bills Filed Status
SB 43, enacting the death penalty for reckless killing of a Enacted
child owing to aggravated child abuse.
SB 411, companion to HB 213. Died in Senate committee
SB 632, abolishing the electric chair and mandating death Died in Senate committee
by lethal injection if the condemned prisoner refuses to
choose among hanging, the firing squad, and lethal injec-
tion.
SB 1314, authorizing life in prison without possibility of Died in Senate committee
parole as another alternative to the death penalty.
SB 1384, identical with SB 1314. Died in Senate committee
SB 2200, expanding the death penalty to the crime of so- Died in Senate committee
liciting to commit first-degree murder.
HJR 48, amending the state constitution to impose man- Died in Senate committee
datory death penalty for first-degree murder.
HB 1089, barring postconviction appeals filed more than Died in House committee
5 years after initial state court review.
HB 213, identical to SB 43. Enacted
HB 598, barring postconviction review of a death sen- Died in House committee
tence filed more than 5 years after initial state supreme
court review.
HB 764, companion to SB 632. Died in Senate committee
HB 1088, barring postconviction appeal of a death sen- Died in House committee
tence if filed more than 3 years after the trial court's
judgment becomes final. (continued)
HB 1089, companion to SB 1314. Died in House committee

HB 1533, companion to SB 1384. Died in House committee
Texas
Bills Filed Status
No session in 1994.
Utah
Bills Filed Status
Vermont
Bills Filed Status
Virginia
Bills Filed Status
SB 142, requiring the trial court in a capital case to com- Died in Senate committee
plete a capital murder sentencing verdict form.
SB 245, expanding the definition of capital murder. Died in Senate committee
SB 246, expanding the definition of capital murder. Carried over to 1995 session
SB 364, expanding the definition of capital murder. Carried over to 1995 session
HJR 402, establishing a joint committee to study proce- Approved; committee in pro-
dures in capital cases. cess of formation
HB 212, authorizing court appointment of an investigator Vetoed
and expert witnesses to assist counsel for indigent capital
defendant.
HB 213, permitting a death row prisoner to file at any Died in House committee
time with the trial court a claim of innocence, and the
court to reopen the case if the claim is probably true.
HB 274, expanding the definition of capital murder. Carried over to 1995 session
HB 431, limiting the number of victim's family members Died on Senate floor
who may witness the execution of their loved one's mur-
derer.
HB 862, allowing death row prisoner to choose between Enacted
the electric chair and lethal injection.
Washington
Bills Filed Status
HB 2269, lowering the age of death eligibility to 16 at Died in House committee
the time of the crime.
West Virginia
Bills Filed Status
HB 4060, reinstating the death penalty for first-degree Died in House committee
murder. (continued)
Table 3-1
Wisconsin
Bills Filed Status
SB 30, reinstating the death penalty for first-degree mur- Died in Senate committee
der.
SIR 42, authorizing an advisory referendum on whether Died in Senate committee
to reenact the death penalty for the murder of a child dur-
ing first-degree sexual assault of a child.
SIR 43, authorizing an advisory referendum on whether Died in Senate committee
the legislature should reenact the death penalty for certain
kinds of first-degree murder.
SJR 96, identical with SIR 42. Died in Senate committee
AB 123, reinstating the death penalty or life imprison- Died in Assembly committee
ment without possibility of parole for first-degree murder
by anyone 16 or older at the time of the crime.
AB 170, reintroducing the death penalty or life in prison Died in Assembly committee
without possible parole for first-degree murder (expanded)
by anyone 16 or older at the time of the crime.
AB 358, identical with AB 170. Died in Assembly committee
AB 835, reintroducing the death penalty for first-degree Died in Assembly committee
murder and revising parole eligibility.
Wyoming
Bills Filed Status
Source: NCADP, 7994 Survey of State Legislation [1995]; status reported as of 25 July 1994.
4
Criminal Homicide
Table 4-1.
Volume of Crimes Against the Person, Annually, 1974-93
Murder
and non-
Crime negligent Aggra-
Index Violent Property man- Forcible vated
Population1 total2 crime3 crime slaughter rape Robbery assault
Population by year:
1974-211,392,000 10,253,400 974,720 9,278,700 20,710 55,400 442,400 456,210
1975-213,124,000 11,292,400 1,039,710 10,252,700 20,510 56,090 470,500 492,620
1976-214,659,000 11,349,700 1,004,210 10,345,500 18,780 57,080 427,810 500,530
1977-216,332,000 10,984,500 1,029,580 9,955,000 19,120 63,500 412,610 534,350
1978-218,059,000 11,209,000 1,085,550 10,123,400 19,560 67,610 426,930 571,460
1979-220,099,000 12,249,500 1,208,030 11,041,500 21,460 76,390 480,700 629,480
1980-225,349,264 13,408,300 1,344,520 12,063,700 23,040 82,990 565,840 672,650
1981-229,146,000 13,423,800 1,361,820 12,061,900 22,520 82,500 592,910 663,900
1982-231,534,000 12,974,400 1,322,390 11,652,000 21,010 78,770 553,130 669,480
1983-233,981,000 12,108,600 1,258,090 10,850,500 19,310 78,920 506,570 653,290
1984-236,158,000 11,881,800 ,273,280 10,608,500 18,690 84,230 485,010 685,350
1985-238,740,000 12,431,400 ,328,800 11,102,600 18,980 88,670 497,870 723,250
1986-241,077,000 13,211,900 ,489,170 11,722,700 20,610 91,460 542,780 834,320
1987-243,400,000 13,508,700 ,484,000 12,024,700 20,100 91,110 517,700 855,090
1988-245,807,000 13,923,100 ,566,220 12,356,900 20,680 92,490 542,970 910,090
1989-248,239,000 14,251,400 ,646,040 12,605,400 21,500 94,500 578,330 951,710
1990-248,709,873 14,475,600 ,820,130 12,655,500 23,440 102,560 639,270 1,054,860
1991-252,177,000 14,872,900 ,911,770 12,961,100 24,700 106,590 687,730 1,092,740
1992-255,082,000 14,438,200 1,932,270 12,505,900 23,760 109,060 672,480 1,126,970
1993-257,908,000 14,141,000 1,924,190 12,216,800 24,530 104,810 659,760 1,135,100
Percent change:
number of of-
fenses:
1993/1992 -2.1 -.4 -2.3 +3.2 -3.9 -1.9 + .7
1993/1989 -.8 + 16.9 -3.1 + 14.1 + 10.9 + 14.1 + 19.3
1993/1984 + 19.0 +51.1 + 15.2 +31.2 +24.4 +36.0 +65.6
(continued)
55
Table 4-1.
Volume of Crimes Against the Person, Annually, 1974-93 (continued)
Populations are Bureau of the Census provisional estimates as of July 1, except 1980 and 1990 which
are the decennial census counts.
2
Because of rounding, the offenses may not add to totals.
3
Violent crimes are offenses of murder, forcible rape, robbery, and aggravated assault. Property crimes
are offenses of burglary, larceny-theft, and motor vehicle theft. Data are not included for the property
crime of arson.
Complete data for 1993 were not available for the states of Illinois and Kansas; therefore, it was
necessary that their crime counts be estimated.
Source: Crime in the United States 1993, p. 58, Table 1.
Criminal Homicide 57
Table 4-2.
Rate of Crimes Against the Person, Annually, 1974-93
Murder
and non-
Crime negligent Aggra-
Index Violent man- Forcible Rob- vated
Total2 crime3 slaughter rape bery assault
Year:
1974 4,850.4 461.1 9.8 26.2 209.3 215.8
1975 5,298.5 487.8 9.6 26.3 220.8 231.1
1976 5,287.3 467.8 8.8 26.6 199.3 233.2
1977 5,077.6 475.9 8.8 29.4 190.7 247.0
1978 5,140.3 497.8 9.0 31.0 195.8 262.1
1979 5,565.5 548.9 9.7 34.7 218.4 286.0
1980 5,950.0 596.6 10.2 36.8 251.1 298.5
1981 5,858.2 594.3 9.8 36.0 258.7 289.7
1982 5,603.6 571.1 9.1 34.0 238.9 289.2
1983 5,175.0 537.7 8.3 33.7 216.5 279.2
1984 5,031.3 539.2 7.9 35.7 205.4 290.2
1985 5,207.1 556.6 7.9 37.1 208.5 302.9
1986 5,480.4 617.7 8.6 37.9 225.1 346.1
1987 5,550.0 609.7 8.3 37.4 212.7 351.3
1988 5,664.2 637.2 8.4 37.6 220.9 370.2
1989 5,741.0 663.1 8.7 38.1 233.0 383.4
1990 5,820.3 731.8 9.4 41.2 257.0 424.1
1991 5,897.8 758.1 9.8 42.3 272.7 433.3
1992 5,660.2 757.5 9.3 42.8 263.6 441.8
1993 5,482.9 746.1 9.5 40.6 255.8 440.1
Percent change: rate per 100,000
inhabitants:1
1993/1992 -3.1 -1.5 +2.2 -5.1 -3.0 -.4
1993/1989 -4.5 + 12.5 +9.2 +6.6 +9.8 + 14.8
1993/1984 +9.0 +38.4 +20.3 + 13.7 +24.5 +51.7
Populations are Bureau of the Census provisional estimates as of July 1, except 1980 and 1990 which
are the decennial census counts.
2
Because of rounding, the offenses may not add to totals.
3
Violent crimes are offenses of murder, forcible rape, robbery, and aggravated assault. Property crimes
are offenses of burglary, larceny-theft, and motor vehicle theft. Data are not included for the property
crime of arson.
Complete data for 1993 were not available for the states of Illinois and Kansas; therefore, it was
necessary that their crime counts be estimated. See "Offense Estimation," page 376 for details.
All rates were calculated on the offenses before rounding.
Source: Crime in the United States 1993, p. 58, Table 1.
Table 4-3.
Ten Leading Causes of Death, 1992
Percent
Death of total
Rank Cause of death Number1 rate2 deaths
All causes 2,177,000 853.3 100.0

1. Heart disease 720,480 282.5 33.1
2. Cancer 521,090 204.3 23.9
3. Stroke 143,640 56.3 6.6
4. Chronic obstructive lung diseases and allied conditions 91,440 35.8 4.2
5. Accidents and adverse effects 86,310 33.8 4.0
Motor vehicle accidents 41,710 16.4 1.9
All other accidents and adverse effects 44,600 17.5 2.0
6. Pneumonia and influenza 76,120 29.8 3.5
7. Diabetes mellitus 50,180 19.7 2.3
8. Human immunodeficiency virus (HTV) infection3 33,590 13.2 1.5
9. Suicide 29,760 11.7 1.4
10. Homicide and legal intervention 26,570 10.4 1.2
(1) Data are provisional, estimated from a 10 percent sample of deaths. Figures may not add to totals
due to rounding. Rates have been recomputed based on revised population estimates. (2) Per 100,000
population. (3) HIV is the virus that causes AIDS.
Source: National Center for Health Statistics, U.S. Department of Health and Human Services, reprinted
in The World Almanac and Book of Facts 1994, p. 956
Table 4-4.
Rates of Criminal Homicide, 1990-94, per Hundred Thousand Population, by Type of
Punishment and Jurisdiction
1990 1991
Prison Prison
Jurisdiction Sentence Death Rate Jurisdiction Sentence Death Rate
Alaska 7.5 Ala. 11.6 Alaska 7.4 Ala. 11.5
D.C. 77.8 Ariz. 7.7 D.C. 80.6 Ariz. 7.8
Hawaii 4.0 Ark. 10.3 Hawaii 4.9 Ark. 11.1
Iowa 1.9 Cal. 11.9 Iowa 2.0 Cal. 12.7
Kan. 4.0 Col. 4.2 Kan. 6.1 Col. 5.9
Maine 2.4 Conn. 5.1 Maine 1.2 Conn. 5.7
Mass. 4.0 Del. 5.0 Mass. 4.2 Del. 5.4
Mich. 10.4 Fla. 10.7 Mich. 10.8 Fla. 9.4
Minn. 2.7 Geo. 11.8 Minn. 3.0 Geo. 12.8
N.Y. 14.5 Idaho 2.7 N.Y. 14.2 Idaho 1.8
N.D. 0.8 m. 10.3 N.D. 1.1 111. 11.3
R.I. 4.8 Ind. 6.2 R.I. 3.7 Ind. 7.5
Vt. 2.3 Ky. 7.2 Vt. 2.1 Ky. 6.8
W. Va. 5.7 La. 17.2 W. Va. 6.2 La. 16.9
Wise. 4.6 Md. 11.5 Wise. 4.8 Md. 11.7
Miss. 12.2 Miss. 12.8
Mo. 8.8 Mo. 10.5
Mont. 4.9 Mont. 2.6
Neb. 2.7 Neb. 3.3
Nev. 9.7 Nev. 11.8
N.H. 1.9 N.H. 3.6
N.J. 5.6 N.J. 5.2
N.M. 9.2 N.M. 10.5
N.C. 10.7 N.C. 11.4
Ohio 6.1 Ohio 7.2
Ok. 8.0 Ok. 7.2
Ore. 3.8 Ore. 4.6
Penn. 6.7 Penn. 6.3
S.C. 11.2 S.C. 11.3
S.D. 2.0 S.D. 1.7
Tenn. 10.5 Tenn. 11.0
Texas 14.1 Texas 15.3
Utah 3.0 Utah 2.9
Va. 8.8 Va. 9.3
Wash. 4.9 Wash. 4.2
Wy. 4.9 Wy. 3.3
Source: FBI, Uniform Crime Reports, 1991, pp. 60-66, Table 4; Uniform Crime Reports, 1993, pp.
60-66, Table 4.
Table 4-4.
Rates of Criminal Homicide, 1990-1994, per Hundred Thousand Population, by Type of
Punishment and Jurisdiction (continued)
1992 1993
Prison Prison
Jursidiction Sentence Death Rate Jurisdiction Sentence Death Rate
Alaska 7.5 Ala. 11.0 Alaska 9.0 Ala. 11.6
D.C. 75.2 Ariz. 8.1 D.C. 78.5 Ariz. 8.6
Hawaii 3.6 Ark. 10.8 Hawaii 3.8 Ark. 10.2
Iowa 1.6 Cal. 12.7 Iowa 2.3 Cal. 13.1
Kan. 6.0 Col. 6.2 Kan. 6.4 Col. 5.8
Maine 1.7 Conn. 5.1 Maine 1.6 Conn. 6.3
Mass. 3.6 Del. 4.6 Mass. 3.9 Del. 5.0
Mich. 9.9 Fla. 9.0 Mich. 9.8 Fla. 8.9
Minn. 3.3 Geo. 11.0 Minn. 3.4 Geo. 11.4
N.Y. 13.2 Idaho 3.5 N.Y. 13.3 Idaho 2.9
N.D. 1.9 111. 11.4 N.D. 1.7 111. 11.4
R.I. 3.6 Ind. 8.2 R.I. 3.9 Ind. 7.5
Vt. 2.1 Ky. 5.8 Vt. 3.6 Ky. 6.6
W. Va. 6.3 La. 17.4 W. Va. 6.9 La. 20.3
Wise. 4.4 Md. 12.1 Wise. 4.4 Md. 12.7
Miss. 12.2 Miss. 13.5
Mo. 10.5 Mo. 11.3
Mont. 2.9 Mont. 3.0
Neb. 4.2 Neb. 3.9
Nev. 10.9 Nev. 10.4
N.H. 1.6 N.H. 2.0
N.J. 5.1 NJ. 5.3
N.M. 8.9 N.M. 8.0
N.C. 10.6 N.C. 11.3
Ohio 6.6 Ohio 6.0
Ok. 6.5 Ok. 8.4
Ore. 4.7 Ore. 4.6
Penn. 6.2 Penn. 6.8
S.C. 10.4 S.C. 10.3
S.D. 0.6 S.D. 3.4
Tenn. 10.4 Tenn. 10.2
Texas 12.7 Texas 11.9
Utah 3.0 Utah 3.1
Va. 8.8 Va. 8.3
Wash. 5.0 Wash. 5.2
Wy. 3.6 Wy. 3.4
Table 4-5.
Murder Victims, by Race and Sex, 1993
Sex of victims
Race of victims Total Male Female Unknown
Total white victims 10,709 7,764 2,945
Total black victims 11,795 9,642 2,151 2
Total other race victims 563 417 146
Total unknown race 204 126 36 42
1
Total victims 23,271 17,949 5,278 44
murder victims for whom supplemental data were received.
Source: Crime in the United States 1993, p. 14, Table 2.4.
Table 4-6.
Distribution of Arrests for Criminal Homicide,
by Age, 1993
Age Number of arrested offenders

Under 15 339
15 to 19 5,941
20 to 24 5,991
25 to 29 2,874
30 to 34 2,000
35 to 39 1,445
40 to 44 892
45 to 49 553
50 to 54 364
55 to 59 203
60 to 64 122
65 and over 180
Total 20,285
Source: Crime in the United States 1993, pp. 227-28,
Table 38.
Table 4-7.
Victim/Offender Relationship in Criminal Homicide, by Race and Sex, 1993
[Single Victim/Single Offender]
Race of offender Sex of offender

Race of victim White Black Other Unknown Male Female Unknown
Total white victims 4,686 849 58 55 5,057 536 55

Total black victims 304 5,393 18 67 4,985 730 67
Total other race victims 61 40 137 2 210 28 2
Total unknown race 11 17 1 22 27 2 22
Race of offender Sex of offender

Sex of victim White Black Other Unknown Male Female Unknown
Total male victims 3,469 4,869 153 93 7,487 1,004 93

Total female victims 1,582 1,413 60 31 2,765 290 31
Total unknown sex 11 17 1 22 27 2 22
*Data based on 11,721 victims.
Table 4-8.
Murder Victims, by Type of Weapon Used, 1989-93
Weapons 1989 1990 1991 1992 1993

Total 18,954 20,273 21,676 22,716 23,271
Total firearms 11,832 13,035 14,373 15,489 16,189
Handguns 9,013 10,099 11,497 12,580 13,252
Rifles 865 746 745 706 754
Shotguns 1,173 1,245 1,124 1,111 1,059
Other guns 34 25 30 42 38
Firearms—not stated 747 920 977 1,050 1,086
Knives or cutting
instruments 3,458 3,526 3,430 3,296 2,957
Blunt objects (clubs,
hammers, etc.) 1,128 1,085 1,099 1,040 1,024
Personal weapons (hands,
fists, feet, etc.)1 1,050 1,119 1,202 1,131 1,164
Poison 11 11 12 13 9
Explosives 16 13 16 19 26
Fire 234 288 195 203 217
Narcotics 17 29 22 24 22
Drowning 60 36 40 29 23
Strangulation 366 312 327 314 329
Asphyxiation 101 96 113 115 113
Other weapons or weapons
not stated 681 723 847 1,043 1,198
is included in personal weapons.
Table 4-9.
Murder Victims, by Type of Murder Circumstances, 1989-93
1989 1990 1991 1992 1993

1
Total 18,954 20,273 21,676 22,716 23,271
Felony type total: 4,049 4,209 4,636 4,917 4,451
Rape 131 152 132 138 116
Robbery 1,728 1,871 2,226 2,266 2,301
Burglary 212 202 197 212 179
Larceny-theft 18 28 32 41 32
Motor vehicle theft 37 55 53 66 61
Arson 165 152 138 148 151
Prostitution and
commercialized vice 12 27 20 32 17
Other sex offenses 58 50 47 34 25
Narcotic drug laws 1,402 1,367 1,353 1,302 1,287
Gambling 23 11 33 20 10
Other—not specified 263 294 405 658 272
Suspected felony type 150 148 210 280 144
Other than felony type
total 10,270 10,889 11,220 11,244 12,235
Romantic triangle 385 407 314 334 439
Child killed by
babysitter 24 34 32 36 33
Brawl due to influence
of alcohol 432 533 500 429 381
Brawl due to influence
of narcotics 306 242 254 253 262
Argument over money or
property 551 514 520 483 445
Other arguments 5,736 6,044 6,108 6,066 6,292
Gangland killings 56 104 206 137 147
Juvenile gang killings 542 679 840 813 1,147
Institutional killings 22 16 19 18 15
Sniper attack 49 41 12 33 7
Other—not specified 2,167 2,275 2,415 2,642 3,067
Unknown 4,485 5,027 5,610 6,275 6,441
*Total number of murder victims for whom supplemental homicide information was received.
5
Death Row Prisoners
Table 5-1.
Prisoners Under Death Sentence, by Jurisdiction, Race, and Sex, 1995
Total under Raceb

Jurisdiction death sentence3 A B L N W U
Alabama 135 (4) 1 4 2 0 78 0
Arizona 119(1) 0 15 20 4 79 1
Arkansas 36(1) 0 14 1 1 20 0
California 438 (8) 7 158 62 13 179 19
Colorado 4 0 1 1 0 2 0
Connecticut 5 0 2 0 0 3 0
Delaware 12 0 6 0 0 6 0
Florida 346 (6) 1 122 36 1 186 0
Georgia 103 0 44 0 0 59 0
Idaho 20 0 0 1 0 19 0
Illinois 164(4) 0 104 5 0 54 1
Indiana 51(1) 0 17 1 0 33 0
Kentucky 28(1) 0 6 0 0 21 1
Louisiana 53 0 33 3 0 13 4
Maryland 15 0 13 0 0 2 0
Mississippi 54(1) 0 32 0 0 21 1
Missouri 93(2) 1 38 1 1 48 4
Montana 6 0 0 0 1 5 0
Nebraska 10 0 2 0 1 7 0
Nevada 80(1) 1 29 9 0 41 0
New Jersey 11 0 6 1 0 4 0
New Mexico 3 0 0 2 0 1 0
North Carolina 154 (4) 0 74 1 4 73 2
Ohio 150 0 74 3 2 70 1
Oklahoma 120 (4) 3 34 1 13 69 0
Oregon 14 0 0 1 1 12 0
Pennsylvania 196 (4) 2 122 10 0 62 0
South Carolina 58 0 29 0 1 28 0
South Dakota 2 0 0 0 0 2 0
Tennessee 102 (1) 1 32 1 2 66 0
(continued)
65
Table 5-1.
Prisoners Under Death Sentence, by Jurisdiction, Race, and Sex, 1995 (continued)
Texas 394 (6) 3 147 68 5 165 6

Utah 10 0 2 1 0 7 0
Virginia 54 0 27 1 0 26 0
Washington 13 1 2 0 0 10 0
U.S. military 8 1 6 0 0 1 0
U.S. civil 8 0 5 1 0 2 0
Total 3,061 (49) 22 1,246 233 50 1,470 40
Percent 100.0 0.7 40.7 7.6 1.6 48.0 1.3
"Numbers in parentheses are women
b
Key to abbreviations: A = Asian, B = Black, L = Latino/Latina, N = Native American, U =
Unknown, W = White
Source: NAACP Legal Defense and Educational Fund, "Death Row, U.S.A.," winter 1995 (31 January
1996).
Death Row Prisoners 67
Table 5-2.
Juvenile Offenders Sentenced to Death, by Jurisdiction, 1973-95
Race of Sex of Age at Total Total

offender offender crime juvenile juvenile
State B L w M F 15 16 17 sentences offenders
Texas 15 9 7 31 0 0 0 31 31 30
Florida 8 0 14 22 0 3 6 13 22 18
Alabama 6 0 5 10 1 1 6 4 11 10
Georgia 4 0 6 9 1 1 0 9 10 7
Mississippi 6 0 4 9 1 0 4 6 10 9
Louisiana 7 0 0 7 0 2 2 3 7 7
Ohio 5 0 1 6 0 0 1 5 6 6
North Carolina 3 0 2 5 0 1 0 4 5 4
Pennsylvania 4 0 1 5 0 1 1 3 5 5
Oklahoma 0 0 5 5 0 1 2 2 5 5
Arizona 0 3 1 4 0 0 2 2 4 4
Missouri 2 0 2 4 0 0 2 2 4 4
South Carolina 2 0 2 4 0 0 1 3 4 4
Indiana 2 0 1 2 1 1 0 2 3 3
Kentucky 1 0 1 2 0 1 0 1 2 2
Maryland 2 0 1 3 0 0 0 3 3 2
Nevada 1 1 0 2 0 0 2 0 2 2
Virginia 1 0 1 2 0 0 0 2 2 2
Arkansas 1 0 0 1 0 1 0 0 1 1
Nebraska 1 0 0 1 0 0 1 0 1 1
New Jersey 1 0 0 1 0 0 0 1 1 1
Washington 0 0 1 1 0 0 0 1 1 1
Totals 71 13 56 136 4 13 30 27 40 128
Source: Streib, "The Juvenile Death Penalty Today," Sept. 19, 1995, p. 8, Table 4.
68a The Laws, the Crimes, and the Executions
Table 5-3.
Women Sentenced to Death, by Jurisdiction and Race, 1973-95
Race of offender Total

Sentencing American female
state White Black Latino Indian sentences
Florida 11 2 1 0 14
North Carolina 8 3 0 1 12
Ohio 3 6 0 0 9
Texas 7 2 0 0 9
California 4 3 1 0 8
Alabama 5 2 0 0 7
Mississippi 4 2 0 0 6
Oklahoma 6 1 0 0 7
Georgia 4 1 0 0 5
Illinois 1 3 1 0 5
Missouri 4 0 1 0 5
Indiana 2 2 0 0 4
Maryland 1 0 0 2 3
Pennsylvania 1 3 0 0 4
Kentucky 2 0 0 0 2
Nevada 1 1 0 0 2
Arizona 1 0 0 0 1
Arkansas 1 0 0 0 1
Idaho 2 0 0 0 2
Louisiana 1 1 0 0 2
New Jersey 1 0 0 0 1
South Carolina 1 0 0 0 1
Tennessee 1 0 0 0 1
Totals 72 32 4 3 111
Source: Streib, "Capital Punishment of Female Offenders," Sept. 21, 1995, p. 4, Table 2.
Table 5-4.
Length of Time of Death Row, by Jurisdiction and Year of Entry, 1974-94
Average
number of
Under years under
sentence sentence of
Year of sentence for prisoners sentenced to and remaining on death row, 12/31/94 of death death as of
State 1974-79 1980-81 1982-83 1984-85 1986-87 1988 1989 1990 1991 1992 1993 1994 12/31/94 12/31/94
Florida 26 15 29 35 34 26 17 20 41 27 33 39 342 6.6
Texas 19 18 26 40 63 30 31 25 28 39 32 43 394 6.4
California 11 21 54 39 47 30 30 32 24 38 33 22 381 6.8
Georgia 10 3 8 7 18 5 8 10 6 7 8 6 96 7.4
Arizona 7 10 12 11 7 10 5 10 14 11 14 10 121 6.6
Tennessee 6 9 10 16 19 6 3 7 10 8 2 4 100 8.0
Illinois 3 18 17 16 18 11 8 17 7 15 14 11 155 6.9
Nebraska 3 2 2 1 1 1 10 11.2
Oklahoma 3 3 9 18 24 16 11 8 12 5 8 12 129 6.5
Arkansas 2 1 1 5 1 4 3 1 3 7 8 36 4.7
Nevada8 2 4 10 9 5 5 9 7 4 1 2 8 66 7.1
South Carolina 2 4 7 7 7 2 4 2 8 2 7 7 59 6.7
Alabama 1 6 21 14 17 7 13 9 4 11 8 24 135 6.3
Indiana 1 5 6 10 6 6 3 2 4 2 2 47 7.9
Kentucky 1 2 8 2 4 1 2 3 2 4 29 7.5
Montana 1 1 1 2 1 2 8 *
North Carolina 1 4 6 5 1 1 6 10 18 32 27 111 3.3
Pennsylvania 5 17 20 27 20 16 6 18 16 16 21 182 5.8
Mississippi 4 4 2 4 3 7 5 4 12 5 50 5.1
Missouri 4 4 14 16 12 2 4 11 6 6 9 88 5.1
(continued)
Table 5-4.
Length of Time of Death Row, by Jurisdiction and Year of Entry, 1974-94 (continued)
Average
Under number of
sentence years under
of death sentence of
Year of sentence for prisoners sentenced to and remaining on death row, 12/31/94 12/3 11 death as of
State 1974-79 1980-81 1982-83 1984-85 1986-87 1988 1989 1990 1991 1992 1993 1994 94 12/31/94
Delaware 2 1 1 4 6 14 4.7
Idaho 1 3 4 1 3 2 1 1 1 2 19 7.6
Maryland 1 1 2 1 1 3 1 1 1 1 13 7.0
Virginia 1 1 1 13 2 3 6 6 6 6 10 55 4.4
Ohio 11 30 21 9 9 9 13 16 10 12 140 6.0
Louisiana 4 10 8 1 1 4 6 7 6 47 5.5
Utah 1 2 1 2 2 1 1 10 6.6
Washington 1 1 1 1 1 1 2 2 10 4.3
Colorado 2 1 3 *
New Jersey 1 2 3 3 9 *
New Mexico 1 1 2 *
Connecticut 1 2 1 4 *
Oregon 1 2 4 4 6 17 1.9
South Dakota 1 1 2 *
Federal 1 5 6 *
Total 99 143 273 317 374 214 183 197 240 260 287 303 2,890 6.3
*Averages not calculated for fewer than 10 inmates.
a
Preliminary numbers, subject to revision.
Source: Bureau of Justice Statistics, "Capital Punishment 1994," p. 13, Appendix Table 2.
Table 5-5. Prisoners on Death Row, by Type of Removal, Annually, 1973-94
Number of prisoners removed from under sentence of death Under

Number Appeal or higher courts overturned Other or sentence
Year of sentenced Other Death pen- Sentence unknown of death,
sentence to death Execution death alty statute Conviction Sentence commuted reasons 12/31/94
1973 42 2 0 14 9 8 9 0 0
1974 149 9 4 65 15 29 22 1 4
1975 298 5 4 171 24 66 21 2 5
1976 234 11 5 137 16 43 15 0 7
1977 138 16 2 40 26 33 7 0 14
1978 187 29 3 21 35 60 8 0 31
1979 156 15 8 2 28 58 6 1 38
1980 182 20 11 3 31 47 6 0 64
1981 233 31 10 0 40 68 4 1 79
1982 272 33 12 0 28 63 6 0 130
1983 253 26 10 1 19 48 4 2 143
1984 287 21 10 2 33 55 6 8 152
1985 277 7 3 2 31 63 3 3 165
1986 306 9 12 0 40 49 4 5 187
1987 290 3 7 2 32 52 1 6 187
1988 295 8 6 0 24 42 1 0 214
1989 264 3 6 0 21 48 3 0 183
1990 256 3 3 0 25 28 0 0 197
1991 277 1 4 0 16 16 0 0 240
1992 285 4 1 0 11 8 1 0 260
1993 295 1 4 0 1 2 0 0 287
1994 304 0 0 0 0 0 1 0 303
Total,
1973-94 5,280 257 125 460 505 886 128 29 2,890
Note: Table based upon most recent death sentence received.
Table 5-6.
Prisoners on Death Row, by Jurisdiction and Type of Removal, 1973-94
Total Number of removals, 1973-94 Under

sentenced Sentence or sentence
to death, conviction Sentence Other of death,
State 1973-94 Executed Died overturned commuted removals 12/31/94
U.S. total 5,280 257 125 1,851 128 29 2,890
Federal 7 0 0 1 0 0 6
Alabama 227 10 4 77 1 0 135
Arizona 191 3 5 60 1 1 121
Arkansas 73 9 1 27 0 0 36
California 534 2 21 114 15 1 381
Colorado 14 0 1 9 1 0 3
Connecticut 5 0 0 1 0 0 4
Delaware 31 4 0 13 0 0 14
Florida 702 33 18 289 18 2 342
Georgia 246 18 7 119 5 1 96
Idaho 32 1 1 11 0 0 19
Illinois 223 2 6 53 0 7 155
Indiana 80 3 1 27 0 2 47
Kentucky 58 0 1 27 1 0 29
Louisiana 142 21 3 64 6 1 47
Maryland 37 1 1 20 2 0 13
Massachusetts 4 0 0 2 2 0 0
Mississippi 132 4 1 74 0 3 50
Missouri 117 11 4 13 1 0 88
Montana 13 0 0 4 1 0 8
Nebraska 21 1 2 6 2 0 10
Nevada 95 5 3 18 3 0 66
New Jersey 38 0 1 20 0 8 9
New Mexico 23 0 0 16 5 0 2
New York 3 0 0 3 0 0 0
North Carolina 364 6 4 239 4 0 111
Ohio 280 0 5 126 9 0 140
Oklahoma 236 3 4 100 0 0 129
Oregon 35 0 0 18 0 0 17
Pennsylvania 244 0 7 54 1 0 182
Rhode Island 2 0 0 2 0 0 0
South Carolina 129 4 3 63 0 0 59
South Dakota 2 0 0 0 0 0 2
Tennessee 163 0 4 57 0 2 100
Texas 624 85 12 90 43 0 394
Utah 23 4 0 8 1 0 10
Virginia 96 24 3 7 6 1 55
(continued)
Total Number of removals, 1973-94

sen- Under
tenced to Sentence or sentence
death, conviction Sentence Other of death,
State 1973-94 Executed Died overturned commuted removals 12/31/94
Washington 25 2 1 12 0 0 10
Wyoming 9 1 1 7 0 0 0
Percent 100% 4.9 2.4 35.1 2.4 0.5 54.7
Note: For those persons sentenced to death more than once, the numbers are based on the most recent
sentence to death.
Table 5-7.
Prisoners Executed, by Jurisdiction and Method, 1977-94
Number Lethal Electro- Lethal Firing

State executed injection cution gas squad Hanging
Total 257 131 114 9 1 2

Texas 85 85
Florida 33 33
Virginia 24 24
Louisiana 21 1 20
Georgia 18 18
Missouri 11 11
Alabama 10 10
Arkansas 9 8 1
North Carolina 6 5 1
Nevada 5 4 1
Delaware 4 4
Mississippi 4 4
South Carolina 4 4
Utah 4 3 1
Arizona 3 2 1
Indiana 3 3
Oklahoma 3 3
California 2 2
Illinois 2 2
Washington 2 2
Idaho 1 1
Maryland 1 1
Nebraska 1 1
Wyoming 1 1
Table 5-8.
Juvenile Offenders Executed, 1976-94
Year of Age at Age at

execution Place Race crime execution Name
1985 Texas White 17 28 Charles Rumbaugh

1986 So. Car. White 17 25 J. Terry Roach
1986 Texas White 17 24 Jay Pinkerton
1990 Louisiana Black 17 30 Dalton Prejean
1992 Texas White 17 28 Johnny Garrett
1993 Texas Black 17 31 Curtis Hams
1993 Missouri Black 17 29 Frederick Lashley
1993 Texas Latino 17 26 Ruben Cantu
1993 Georgia White 17 33 Chris Burger
Source: Streib, "The Juvenile Death Penalty Today," 1995, p. 3, Table 1.
Table 5-9.
Victim/Executed Offender Relationship, by Race and Gender, 1977-95*
Gender of Defendants Executed Gender of Victims

total number 318 total number 426
Female 1 ( .37%) Female 186(43.66%)
Male 317 (99.68%) Male 240(56.34%)
race of defendants executed race of victims
White 175 (55.03%) White 350(82.16%)
Black 124 (38.99%) Black 55(12.91%)
Latino 17 ( 5.34%) Latino 14 ( 3.29%)
Native American 1 ( .31%) Asian 7 ( 1.64%)
Asian 1 ( .31%)
"Includes 5 executions in January 1996.

Source: NAACP Legal Defense and Educational Fund, "Death Row, U.S.A.," winter
1995, p. 3.
Table 5-10.
Number and Percent of Death Sentences Carried out in Death Penalty
Jurisdictions, by Rank Order of Death Sentences, 1973-94
Death Percent
Jurisdiction sentences Executions executed
Florida 702 33 4.7
Texas 624 85 13.6
California 534 2 0.4
North Carolina 364 6 1.6
Ohio 280 0 0.0
Georgia 246 18 7.3
Pennsylvania 244 0 0.0
Oklahoma 236 3 1.3
Alabama 227 10 4.4
Illinois 223 2 0.9
Arizona 191 3 1.6
Tennessee 163 0 0.0
Louisiana 142 21 1.4
Mississippi 132 4 3.0
South Carolina 129 4 3.1
Missouri 117 11 9.4
Virginia 96 24 22.2
Nevada 95 5 5.3
Indiana 80 3 3.8
Arkansas 73 9 12.3
Kentucky 58 0 0.0
New Jersey 38 0 0.0
Maryland 37 1 2.7
Oregon 35 0 0.0
Idaho 32 1 3.1
Delaware 31 4 12.9
Washington 25 2 8.0
Utah 23 4 17.4
New Mexico 23 0 0.0
Nebraska 21 1 4.8
Colorado 14 0 0.0
Montana 13 0 0.0
Wyoming 9 1 11.1
Connecticut 5 0 0.0
Massachusetts 4 0 0.0
New York 3 0 0.0
Rhode Island 2 0 0.0
South Dakota 2 0 0.0
(continued)
Death Percent
Jurisdiction sentences Executions executed
New Hampshire 0 0 0.0

Federal 7 0 0.0
Note: Subsequent to the publication of this report, two states—Montana and
Pennsylvania—have carried out their first executions.
Source: Bureau of Justice Statistics, "Capital Punishment 1994," p. 14, Appendix
Table 3.
6
The Status of the Death Penalty

Worldwide
Table 6-1.
Abolitionist for All Crimes (Countries and territories whose laws do not provide for the
death penalty for any crime)
Date of
Date of abolition for Date of last
Country abolition ordinary crimes execution
ANDORRA 1990 1943
ANGOLA 1992
AUSTRALIA 1985 1984 1967
AUSTRIA 1968 1950 1950
CAMBODIA 1989
CAPE VERDE 1981 1835
COLOMBIA 1910 1909
COSTA RICA 1877
CROATIA 1990
CZECH REPUBLIC 1990*
DENMARK 1978 1933 1950
DOMINICAN REPUBLIC 1966
ECUADOR 1906
FINLAND 1972 1949 1944
FRANCE 1981 1977
GERMANY 1949/1987** 1949**
GREECE 1993 1972
GUINEA-BISSAU 1993 1986***
HAITI 1987 1972***
HONDURAS 1956 1940
HONG KONG 1993 1966
HUNGARY 1990 1988
ICELAND 1928 1830
IRELAND 1990 1954
ITALY 1994 1947 1947
KIRIBATI ****
LIECHTENSTEIN 1987 1785
(continued)
78
The Status of the Death Penalty Worldwide 79

Date of
Date of abolition for Date of last
Country abolition ordinary crimes execution
LUXEMBOURG 1979 1949

MACEDONIA
MARSHALL ISLANDS ****
MAURITIUS 1995 1987
MICRONESIA (Federated States) ****
MOLDOVA 1995
MONACO 1962 1847
MOZAMBIQUE 1990 1986
NAMIBIA 1990 1988***
NETHERLANDS 1982 1870 1952
NEW ZEALAND 1989 1961 1957
NICARAGUA 1979 1930
NORWAY 1979 1905 1948
PALAU
PANAMA 1903***
PORTUGAL 1976 1867 1849***
ROMANIA 1989 1989
SAN MARINO 1865 1848 1468***
SAO TOME AND PRINCIPE 1990 ****
SLOVAK REPUBLIC 1990*
SLOVENIA 1989
SOLOMON ISLANDS 1966 ****
SPAIN 1995 1978 1975
SWEDEN 1972 1921 1910
SWITZERLAND 1992 1942 1944
TUVALU ****
URUGUAY 1907
VANUATU
VATICAN CITY STATE 1969
VENEZUELA 1863
TOTAL: 57 countries
*The death penalty was abolished in the Czech and Slovak Federal Republic in 1990. On 1 January
1993 the Czech and Slovak Federal Republic divided into two states, the Czech Republic and the
Slovak Republic. The last execution in the Czech and Slovak Federal Republic was in 1988.
**The death penalty was abolished in the Federal Republic of Germany (FRG) in 1949 and in the
German Democratic Republic (GDR) in 1987. The last execution in the FRG was in 1949; the date of
the last execution in the GDR is not known. The FRG and the GDR were unified in October 1990.
***Date of last known execution.
****No executions since independence.
Source: Amnesty International, "The Death Penalty: List of Abolitionist and Retentionist Countries
(March 1996)."
Table 6-2.
Abolitionist for Ordinary Crimes Only (Countries whose laws provide for the
death penalty only for exceptional crimes such as crimes under military law
or crimes committed in exceptional circumstances such as wartime)
Date of Date of last

Country abolition execution
ARGENTINA 1984
BRAZIL 1979 1855
CANADA 1976 1962
CYPRUS 1983 1962
EL SALVADOR 1983 1973*
FIJI 1979 1964
ISRAEL 1954 1962|
MALTA 1971 1943
MEXICO 1937
NEPAL 1990 1979
PARAGUAY 1992 1928
PERU 1979 1979
SEYCHELLES **
SOUTH AFRICA 1995 1991
UNITED KINGDOM 1973 1964
TOTAL: 15 countries
*Date of last known execution.
**No executions since independence.
t[Ed. note: Adolph Eichmann was executed in Israel in 1962 for "crimes against hu-
manity."]
Source: Amnesty International, * 'The Death Penalty: List of Abolitionist and Retentionist
Countries (March 1996)."
Table 6-3.
Abolitionist De Facto (Countries and territories which
retain the death penalty for ordinary crimes but can be
considered abolitionist in practice in that they have not
executed anyone during the past 10 years or more, or in
that they have made an international commitment not to
carry out executions)
Date of last
Country execution
ALBANIA*
BELGIUM 1950
BERMUDA 1977
BHUTAN 1964**
BOLIVIA 1974
BRUNEI DARUSSALAM 1957
BURUNDI 1982
CENTRAL AFRICAN REPUBLIC 1981
CONGO 1982
COMOROS ***
COTE D'lVOIRE
DJIBOUTI ***
GAMBIA 1981
MADAGASCAR 1958**
MALDIVES 1952**
MALI 1980
NAURU ***
NIGER 1976**
PAPUA NEW GUINEA 1950
PHILIPPINES 1976
RWANDA 1982
SENEGAL 1967
SRI LANKA 1976
SURINAME 1982
TOGO
TONGA 1982
TURKEY 1984
WESTERN SAMOA ***
TOTAL: 28 countries and territories
*Preparatory to Albania's joining the Council of Europe, in a dec-
laration signed on 29 June, Pjeter Arbnori, President of the Alba-
nian Parliament, said he was willing to commit his country "to
put into place a moratorium on executions until [the] total abolition
of capital punishment."
**Date of last known execution.
***No executions since independence.
Source: Amnesty International, ' "The Death Penalty: List of Ab-
olitionist and Retentionist Countries (March 1996)."
Table 6-4.
Retentionist (Countries which retain and use the death penalty for ordinary crimes)*
Country
AFGHANISTAN INDIA RUSSIA
ALGERIA INDONESIA SAINT CHRISTOPHER AND
ANTIGUA AND BARBUDA IRAN NEVIS
ARMENIA IRAQ SAINT LUCIA
AZERBAYDZHAN JAMAICA SAINT VINCENT AND THE
BAHAMAS JAPAN GRENADINES
BAHRAIN JORDAN SAUDI ARABIA
BANGLADESH KAZAKHSTAN SIERRA LEONE
BARBADOS KENYA SINGAPORE
BELARUS KOREA (Democratic SOMALIA
BELIZE People's Republic) SUDAN
BENIN [North Korea] SWAZILAND
BOSNIA-HERZEGOVINA KOREA (Republic) SYRIA
BOTSWANA [South Korea] TADZfflKISTAN
BULGARIA KUWAIT TAIWAN (Republic of
BURKINA FASO KYRGYZSTAN China)
CAMEROON LAOS TANZANIA
CHAD LATVIA THAILAND
CHILE LEBANON TRINIDAD AND TOBAGO
CHINA (People's LESOTHO TUNISIA
Republic) LIBERIA TURKMENISTAN
CUBA LIBYA UGANDA
DOMINICA LITHUANIA UKRAINE
EGYPT MALAWI UNITED ARAB EMIRATES
EQUATORIAL GUINEA MALAYSIA UNITED STATES OF
ERITREA MAURITANIA AMERICA
ESTONIA MONGOLIA UZBEKISTAN
ETHIOPIA MOROCCO VIETNAM
GABON MYANMAR YEMEN
GEORGIA NIGERIA YUGOSLAVIA (Federal
GHANA OMAN Republic of)
GRENADA PAKISTAN ZAIRE
GUATEMALA POLAND ZAMBIA
GUINEA QATAR ZIMBABWE
GUYANA
TOTAL: 94 countries and territories
*Most of these countries and territories are known to have carried out executions during the past 10
years. On some countries Amnesty International has no record of executions but is unable to ascertain
whether or not executions have in fact been carried out. Several countries have carried out executions
in the past 10 years but have since instituted national moratoria on executions.
(March 1996)."
Table 6-5.
List of Countries which have Abolished the Death Penalty Since 1976
7976: PORTUGAL abolished the death penalty for all crimes.

CANADA abolished the death penalty for ordinary crimes.
1978: DENMARK abolished the death penalty for all crimes.
SPAIN abolished the death penalty for ordinary crimes.
7979: LUXEMBOURG, NICARAGUA and NORWAY abolished the death penalty for all crimes.
BRAZIL, FIJI and PERU abolished the death penalty for ordinary crimes.
1981: FRANCE and CAPE VERDE abolished the death penalty for all crimes.
1982: The NETHERLANDS abolished the death penalty for all crimes.
1983: CYPRUS and EL SALVADOR abolished the death penalty for ordinary crimes.
1984: ARGENTINA abolished the death penalty for ordinary crimes.
1985: AUSTRALIA abolished the death penalty for all crimes.
1987: HAITI, LIECHTENSTEIN and the GERMAN DEMOCRATIC REPUBLIC abolished the
death penalty for all crimes.1
7989: CAMBODIA, NEW ZEALAND, ROMANIA and SLOVENIA abolished the death penalty
for all crimes.2
7990: ANDORRA, CROATIA, the CZECH AND SLOVAK FEDERAL REPUBLIC, HUNGARY,
IRELAND, MOZAMBIQUE, NAMIBIA and SAO TOM$ AND PRiNCIPE abolished the
death penalty for all crimes.2'3
NEPAL abolished the death penalty for ordinary crimes.
7992: ANGOLA and SWITZERLAND abolished the death penalty for all crimes.
PARAGUAY abolished the death penalty for ordinary crimes.
7995: GREECE, GUINEA-BISSAU and HONG KONG abolished the death penalty for all crimes.
7994: ITALY abolished the death penalty for all crimes.
7995: MAURITIUS, MOLDOVA and SPAIN abolished the death penalty for all crimes.
SOUTH AFRICA abolished the death penalty for ordinary crimes.
Notes: *In 1990 the German Democratic Republic became unified with the Federal Republic of Ger-
many, where the death penalty had been abolished in 1949.
2
Slovenia and Croatia abolished the death penalty while they were still republics of the Socialist Federal
Republic of Yugoslavia. The two republics became independent in 1991.
3
In 1993 the Czech and Slovak Federal Republic divided into two states, the Czech Republic and the
Slovak Republic.
(March 1996)."
PART II
The Controversy over Public

Support for the Death Penalty:
The Death Penalty versus
Life Imprisonment
Although the law in a constitutional democracy does not always march hand in
hand with public attitudes, values, and preferences, too much distance between the
two is a recipe for serious political tension. For years the American public has
been convinced that it is being victimized by violent crime and that government
at all levels has been unsuccessful in solving the problem. The result has been fear,
anger, and frustration over the perennial "crime wave" threatening to engulf the
body politic. One measure of how the public views the issue of violent crime is
found in its attitude toward the death penalty.
There is little doubt that the American public gives vocal support—and has
voted this support at the polls as well—for the death penalty. At least since the
Supreme Court's Furman decision in 1972, a majority of the general public has
given abstract support to the death penalty as a legitimate punishment for murder,
if not in all cases then certainly in some. As a representative sample from a much
larger body of evidence, consider these diverse reports of public opinion on the
death penalty spanning the past few decades:
• In 1979 "The Playboy Report on American Men" reported that 68 percent

of American men favored the death penalty, ranging from a high (nearly 75
percent) among men between 23 and 50, to a low (60 percent) among men
aged 18 to 22.1
• The Figgie Report on Fear of Crime, published in 1981, reported that 92
percent of the "senior executives with Fortune 1,000 corporations" favor the
death penalty for murder.2
• In New York City nearly half of the 1,329 city residents polled in 1985 re-
ported that the death penalty would "help reduce crime a lot."3
• In South Carolina a 1985 newspaper survey reported that among those asked
in the local population, the death penalty was supported by more than three
84
The Controversy over Public Support for the Death Penalty 85
to two (68 percent versus 21 percent); only a small percentage (11 percent)
was undecided.4
• A Media General/Associated Press survey in early 1985 reported that of the
1,476 adults asked nationwide, an "unprecedented 84% of Americans approve
of the death penalty.... [Of these] 57 percent said the death penalty was
appropriate in certain circumstances and 27 percent said it should be used in
all murder cases." (One wonders whether these respondents knew or cared
that, nine years earlier, the Supreme Court had ruled that a mandatory death
penalty for murder was unconstitutional?) According to the same poll, "[H]alf
of those [who support the death penalty also] believe the death sentence is not
imposed fairly from case to case."5
• Parade magazine reported in 1987 that of the "nearly 40,000" persons from
all over the country who volunteered their views on the death penalty, "nearly
80% believe there should be capital punishment in general," and "almost
55% think there should be no minimum age for the death penalty."6
• In Texas a sample of 1,008 persons polled by telephone in 1988 reported
overwhelmingly (86 percent) that they thought "Texas should have capital
punishment." This was an increase over 1985, when 75 percent favored the
death penalty.7
• The annual survey of the attitudes of students entering college, The American
Freshman: National Norms, reports a steady decline in support for abolition.
In 1969, 54 percent of entering college freshmen favored abolition of the death
penalty. That dropped to 27 percent in 1985, to 21 percent in 1989,8 and to
the all-time low of 20 percent in 1995.9
These reports are typical: Support for the death penalty appears to have steadily
increased from around 65 percent in the early 1970s. According to a Gallup Poll
in September 1994, public support for the death penalty is now at an all-time high
of 80 percent. This poll also shows that a majority of the public now favors the
death penalty for juveniles—an attitude in part fueled by an overestimate of the
volume and rate of juvenile crime (though statistics reported in part I do show that
teenage murder doubled in the period from 1989 to 1993). A prior Gallup Poll
(June 1991) showed that retribution—"a life for a life"—was the main rationale
invoked by death penalty supporters, thus demoting deterrence and incapacitation
to lesser roles. However, that same poll also showed that support for the death
penalty dropped from 76 percent to 53 percent if murderers were sentenced to life
in prison without the possibility of parole (in the jargon, LWOP).10 Will these
attitudes hold steady, at least into the next century? Probably, unless changes in
state and city law enforcement practices can significantly reduce violent crime and
the anxieties it arouses in the public. Some recent good news in this direction from
New York City and other major urban areas may indicate that new practices in law
enforcement are having a beneficial effect.11
Yet this evidence of overwhelming support for the death penalty runs into a
head-on collision with another indubitable fact: As data in part I show, this 80
percent support for the death penalty does not translate into anything remotely like
86 The Controversy over Public Support for the Death Penalty
an 80 percent death penalty sentencing rate in actual capital cases. On the contrary,
juries in capital cases—all of whose members have been vetted to eliminate op-
ponents of execution—do not vote for the death penalty in more than 10 percent
of the actual cases. Thus it appears that when nominal supporters of the death
penalty actually confront in the courtroom a living human being over whom they
have the power of life and death in sentencing, enthusiasm for a death sentence
evaporates more frequently than it hardens. There is no clearer evidence than this
of the essentially symbolic role of the death penalty at present.
A striking illustration is provided in the Susan Smith case tried in the summer
of 1995. According to a Newsweek poll at the end of Smith's trial in South Car-
olina, after she had been found guilty, 63 percent of the respondents wanted her
sentenced to death.12 Yet the jury that had just convicted her began its deliberations
with a straw vote of eleven against and only one for the death sentence. Within
less than three hours the jury voted unanimously to sentence Smith to prison for
life.13
During the past decade several scholars have tried to shed further light on the
real nature and strength of support for the death penalty. In 1986 crirninologist
Philip Harris showed that surveys relying on "questions of support for the death
penalty which provide only a pro or con response" are likely "to lead to an
inaccurate and greatly oversimplified view of public opinion" on this issue (453)—
a conclusion that earlier investigators had also reached.14 He also affirmed three
substantive conclusions: (1) "[S]upport for the death penalty is largely a matter of
emotion: revenge is a more powerful rationale than any of the utilitarian justifi-
cations"; (2) support for the death penalty might diminish "if life imprisonment
without parole was an option"; and (3) "a just deserts response is unlikely to be
seen as the main justification for the death penalty" by those who actually support
it (453).
Criminologist James O. Finckenauer reviewed Harris's research as well as that
of several other investigators, and supported Harris's first third conclusion; "re-
venge"—with all its unbridled retaliatory connotations—was in fact playing a
larger role in public thinking about the death penalty than was "retribution," which
differs from revenge in imposing constraints in the name of justice on the severity
and quality of punishments.15 He concluded that "the public's desire for revenge
is dictating public policy regarding the death penalty" (1988:97).
A year later Hans Zeisel, well known for his statistical work on several aspects
of the death penalty controversy,16 published (with the assistance of Alec M. Gal-
lup) a brief review of the polls, stretching back to 1966, when public opposition
and support for the death penalty were about equally divided. Zeisel and Gallup
reached a conclusion consistent with Harris's: "The present study . . . points up the
relative weakness of utilitarian arguments" whether for or against abolition (1989:
295).
Criminologist Robert Bohm examined the extent to which demographic varia-
bles (notably age, gender, education, geographic region, political affiliation, in-
come) correlated with support of or opposition to the death penalty in the
twenty-one polls on the topic carried out by the Gallup organization in the years
1936 to 1986. He concluded: "[W]hites, wealthier people, males, Republicans, and

Westerners have tended to support the death penalty more than blacks, poorer
people, females, Democrats, and Southerners" (1991a:135). This description fits
rather well the citizens of Washington, D.C., who resoundingly defeated a death
penalty restoration referendum in 1992—the only such triumph for abolition in
many years.17 Bohm went on to add the characteristic caution expressed by all
students of survey research on this subject: The ignorance of the public about the
actual administration of the death penalty, the infrequency of executions in the
1970s and 1980s, and the nature of the questions asked by the pollsters—all were
factors that cast doubt on just what to make of the apparently widespread support
for the death penalty at that time. In the end, Bohm concluded, "[L]ittle is known
about what the American public really thinks of capital punishment" (1991a:139).
Research by criminologists James Alan Fox and Julie L. Bonsteel and sociologist
Michael L. Radelet (1990-91) took a different direction. They showed that public
support for the death penalty depends a great deal on just what kind of murder is
in question: Support for executing a serial murderer, such as the notorious Ted
Bundy (electrocuted in Florida in 1989), is one thing; support for executing a
battered wife who in desperation kills her abusive husband is another. They also
confirmed the Gallup Poll of 1991 that showed a marked falloff in support for the
death penalty if LWOP is the alternative. Finally, they urge (as have other inves-
tigators) that pollsters ask more carefully framed questions so that the answers will
be more significant than a mere "Yes" or "No" to the question "Do you favor
the death penalty?"
These conclusions, as well as other findings and recommendations, are supported
in the most recent and sophisticated research and reflections on public opinion by
social psychologist Phoebe C. Ellsworth and law professor Samuel R. Gross, re-
printed here as chapter 7.
For those opposed to the death penalty, undoubtedly the most interesting and
encouraging research discovery is that support for the death penalty falls off dra-
matically if its supporters are offered LWOP as an alternative (just as Harris con-
jectured a decade ago). This finding was first publicized in May 1990 in the New
York Times by William J. Bowers, one of the nation's leading research investigators
on all aspects of the death penalty. He reported that in California, for example,
where 82 percent of the public professed support for the death penalty, a mere 26
percent continued to prefer it if offered the alternative of LWOP plus some form
of restitution to surviving family members of the murder victim.18 These findings
have been supported by extensive further research, and Bowers now concludes that
"as few as one in four people are staunch death penalty advocates who will accept
no alternative, and that as many as two out of four people are reluctant supporters
who accept the death penalty but would prefer an alternative" (Bowers, Vandiver,
and Dugan 1992:81). Politicians, apparently, have much to learn about the real
views of their constituents on the most favored way to punish murder.
A somewhat popularized account of these findings appears in an April 1993
report by the Death Penalty Information Center (DPIC) in Washington, D.C., writ-
ten by its executive director, Richard C. Dieter. Excerpts from this report, "Sen-
tencing for Life: Americans Embrace Alternatives to the Death Penalty," are
reprinted here as chapter 8. As for why LWOP should be so attractive, a report in
USA Today gave several plausible reasons: It is *'easier to win [in court] than the
death penalty, and cheaper by one-third or one-half; raises no risk of wrongful
execution; means killers can be required to live the rest of their lives working to
compensate the victims's family; is indisputably constitutional; and may actually
deter crime... ,"19
Early in 1995, the DPIC reported that a new national survey showed the attitudes
of police chiefs to be remarkably in line with those of the general public as revealed
in the research Bowers published a year earlier. When Hart Research Associates
polled randomly selected police chiefs, their principal finding was this: "Although
a majority of the police chiefs support the death penalty in the abstract, when given
a choice between the sentence of life without parole plus restitution, versus the
death penalty, barely half of the chiefs support capital punishment."20 The police
chiefs were asked, "If you had to choose one way to reduce crime, what would
you choose?" Only 1 percent chose the death penalty; 87 percent expressed no
confidence in the doctrine that executions "significantly reduce the number of
homicides." Nevertheless, most of the chiefs professed to be in favor of the death
penalty.21
What these research findings pass over in silence is that for many who oppose
the death penalty, the alternative of life in prison without the possibility of parole
is also unreasonably severe,22 so much so that some opponents of executions lose
heart when faced with supporting this alternative. And, indeed, even those death
penalty opponents who embrace LWOP as a morally suitable (as distinct from
politically necessary) alternative might change their minds if they studied the ar-
guments by the Israeli criminologist Leon Sheleff in his book Ultimate Penalties:
Capital Punishment, Life Imprisonment, Physical Torture (1987). Sheleff offers
convincing reasons why none of these practices is really tolerable in a civilized
society. The dilemma of the opponent of the death penalty, if current survey re-
search is a reliable guide, is that at present the public is prepared to accept the
abolition of capital punishment only if the alternative to it is itself a morally un-
acceptable deprivation of liberty.23
Can effective public education undermine support for the death penalty? Most
opponents of the death penalty think it can, but the issue is rarely put to the test,
mainly because resources for effective public education on this issue are so inad-
equate. Events in Washington, D.C., in the autumn of 1992 indicate what is pos-
sible. After a young aide to Senator Richard Shelby was murdered near Capitol
Hill, Congress forced a death penalty referendum on the ballot for District voters
at the regular November elections (Tolchin 1992). A city wide coalition to defeat
the referendum put on a full-court press, mobilizing the media, the churches, and
civic and community groups. When the votes were counted, the referendum was
defeated 2 to I.24 However, many factors entered into this political struggle that
would be absent elsewhere, notably the issue of District political autonomy vs.
Congressional control. Nevertheless, the opponents of the death penalty can fairly
point to that 1992 referendum as an example of what can be done when the atten-
tion of the electorate is sharply focused on the pros and cons of the death penalty.
Notes
1. The Playboy Report on American Men (1979), p. 46
2. The Nation, 4 July 1981, p. 8.
3. New York Times, 14 January 1985, p. B3.
4. The State, 31 January 1985, p. Al.
5. Boston Globe, 29 January 1985, p. 5. A Newsweek poll in late July 1995 reported
that 31 percent of those asked favored a death penalty for "all those convicted of murder."
Newsweek, 1 August 1995, p. 22.
6. Parade Magazine, 25 January 1987, p. 10.
7. Dallas Morning News, 15 November 1988, p. A17.
8. Sourcebook of Criminal Justice Statistics—1992, p. 228, Table 2.84.
9. Boston Globe, 9 January 1995, p. 3.
10. Gallup Poll 1991:40-42.
11. See New York Times, 8 July 1995, pp. 1, 22, reporting that the murder rate in the
first half of 1995 had "fallen by nearly a third" from the previous year, and that a principal
factor was "the aggressive efforts that [the police] have made in stopping all types of crimes;
. . . shootings are down all across the city."
12. Newsweek, 1 August 1995, p. 20.
13. Morgenthau 1995:23.
14. See, e.g., Vidmar and Ellsworth 1974.
15. On the distinction between revenge and retribution, see Nozick 1981:366-70.
16. See Zeisel 1977, reprinted in Bedau 1982; also Zeisel 1968, 1981, and Zeisel &
Gallup 1989.
17. For a thorough discussion of the referendum, see "D.C. Reinstatement Effort
Blocked," NCADP Lifelines, no. 56 (April-June 1992), p. 1; and "Voters Defeat Death
Penalty Referendum in D.C.," NCADP Lifelines No. 57/58 (July-December 1992), pp. 5,
10.
18. Bowers 1990. See also Bowers 1993 (criticizing the Supreme Court for its misuse
of survey research on public attitudes toward the death penalty); and Bowers, Vandiver, and
Dugan 1994 (recent survey research shows that the public prefers LWOP plus restitution to
the death penalty).
19. USA Today, 8 April 1994, p. ?
20. See Dieter 1995a:2.
21. USA Today, 23 February 1995, p. 11 A.
22. Elsewhere I have argued that this country, following what most Western European
nations have done long ago, could adopt a general policy for the punishment of first-degree
murder far less stringent (and less expensive) than LWOP: a mandatory minimum ten-year
prison term, followed by indefinite further imprisonment contingent on annual review by
the board of pardons and parole. See Bedau ed. 1982:100; Bedau ed. 1964:228-31. Varia-
tions on this general pattern are easily imagined; all would have the advantage of reducing
the tendency of American prisons to become geriatric wards for aging convicts who are no
longer dangerous.
23. I have discussed this dilemma in greater detail and in a larger context in Bedau
1990b.
7
Hardening of the Attitudes: Americans'

Views on the Death Penalty
PHOEBE C. ELLSWORTH
SAMUEL R. GROSS
The best known fact about American attitudes toward capital punishment is that
support for the death penalty is at a near record high. Figure 7-1 graphically dis-
plays this familiar fact in a familiar historical context; it is further documented in
the Appendix [not reprinted here]. As measured by public opinion polls, support
for capital punishment declined through the 1950s to a low of 47% in 1966; in-
creased steadily from 1966 through about 1982; and has remained roughly stable
since 1982, in the range of 70%-75%.1
Figure 7-2 shows two other well-known facts about American public opinion
on the death penalty: Throughout the entire period for which poll data are available,
men have favored the death penalty more than women, and Whites have favored
it more than Blacks. Other smaller correlations have frequently been found: Re-
publicans favor the death penalty more than Democrats, conservatives more than
liberals, the middle class more than the poor, Westerners more than Easterners and
Midwesterners, suburbanites more than city and country dwellers (Bohm, 1991;
Erskine, 1970; Fox, Radelet, & Bonsteel, 1991; Smith, 1976; Zeisel & Gallup,
1989). These demographic variables, however, are weak predictors. For example,
in a logistic regression model including all of these variables plus several others,
Fox et al. (1991) were able to predict only 8% of the variance in general death
penalty opinions on NORC surveys from 1972 through 1988.
Several writers have discussed the limitations of the single-question pro/con
format typically used in general population surveys of death penalty attitudes (P.
W. Harris, 1986; Vidmar & Ellsworth, 1974; Wallace, 1989). Answers to this kind
of question tell us little about what people think or feel or notice—why they support
or oppose capital punishment, what they know about it, how and to whom they
believe it should be applied, how this attitude is related to their behavior or to
other attitudes—the issues to which the bulk of this article is devoted.2 Still, these
soundings of general opinion are important.
From the Journal of Social Issues 50, no. 2 (1994): 19-52. Reprinted by permission of the publisher
and the authors.
90
Americans' Views on the Death Penalty 91
Figure 7-1. Attitudes toward the death penalty.
First, the legal status of the death penalty in the United States depends on
popular support, actual and perceived. In 1972, when the Supreme Court first ad-
dressed the claim that the death penalty is a "cruel and unusual punishment" and
therefore unconstitutional, all of the justices agreed that the legality of capital pun-
ishment depends on its acceptability under contemporary standards (Furman v.
Georgia, 1972). The Court has maintained this position ever since, although various
justices have disagreed about the value of opinion polls (as opposed to jury be-
havior and legislative enactments) as a source of information on "contemporary
standards." In 1972—with public opinion on capital punishment fairly evenly split,
but support on the rise—the Supreme Court's decision in Furman left the legal
status of the death penalty in doubt. The Court held that all existing death sentences
in the country were unconstitutional because they had been imposed under systems
that permitted the "arbitrary" use of capital punishment, but it deferred a decision
on the constitutionality of the death penalty as such. Four years later, when the
Court revisited the issue and decided that capital punishment is constitutional
(Gregg v. Georgia, 1976), the public was unmistakably pro-death penalty—as the
polls revealed—and it has remained so ever since.
In the long run, popular support may not be sufficient to guarantee the retention
of the death penalty. As Zimring and Hawkins (1986) have pointed out, in the past
30 years capital punishment has been abolished in West Germany, Great Britain,
Canada, and France, despite majority support. The same could happen in the United
States, although not likely soon. On the other hand, popular support may well be
necessary to the continued use of the death penalty in this country. If a clear
Figure 7-2. Attitudes toward the death penalty by gender and race.
majority comes to reject this form of punishment, we predict that the Supreme
Court, if not Congress and the state legislatures, will soon follow suit.
Second, general opinions about the death penalty are subjectively important to
many, perhaps most, people in this society. For example, in November 1986, 65%
of the respondents in an Associated Press/Media General poll of the national adult
population said that the death penalty is an issue they "feel very strongly about."
This may not surprise anybody who watches TV news or reads newspapers in
America. But it is surprising to learn that on an ABC News exit poll of 23,000
voters in the 1988 presidential election, 27% checked "the candidates' positions
on the death penalty" as an issue that was "very important" to them in choosing
between George Bush and Michael Dukakis. The only item that scored higher was
abortion (33%); the presidential debates and the candidates' stands on illegal drugs
were close behind (26% each); the candidates' political parties scored 23%; and
their positions on matters such as education (22%), health care (21%), and social
security (19%) all trailed.
Perhaps capital punishment is so important to people because it has become a
point on which people do not so much form opinions as choose sides: / am for the
death penalty, George Bush is for the death penalty, Michael Dukakis is against
the death penalty. To the extent that this is true, the critical step is self-identification
as a supporter or an opponent of capital punishment—and general opinion ques-
tions, however vague, may be perfectly suited to determine that identification.
Indeed, the patterns of answers to these questions offer some slight evidence that
death penalty attitudes are a matter of self-identification.
Inevitably, the precise distribution of responses to death penalty questions varies

from survey to survey even within short periods of time. Most such differences are
in the range from 1% to 5%, and are easily explained by random sampling error,
and by the multitude of possible problems in the design and implementation of
mass surveys. What is more striking, from our point of view, is the absence of
systematic differences between the results of competing polls that phrase their ques-
tions about capital punishment differently. The usual question asked on the General
Social Survey (GSS) is, "Do you favor or oppose the death penalty for persons
convicted of murder?" Before 1981, the usual Gallup question was, "Are you in
favor of the death penalty for persons convicted of murder?" Harris polls generally
ask, "Do you believe in capital punishment (the death penalty) or are you op-
posed?" None of the differences between these formats, or among the half-dozen
other questions that we have grouped together in Appendix 1 under the heading
"Standard Question," has any noticeable impact on the answers. Consider, for
example, the results of three polls conducted in 1976: GSS, 4/76—Favor 66%,
Oppose 30%, Don't know 5%; Gallup, 4/76—Yes 66%, No 26%, No opinion 7%;
Harris, 12/76—Favor 67%; Oppose 25%; Not sure 8%.
Experiments using different forms of survey questions have shown that some
variations in wording are likely to matter much more than others. For example,
formal balance ("favor or oppose" vs. "favor") usually makes little difference
(Schuman & Presser, 1981, pp. 180-84). By contrast, providing a context for the
opinion ("If [another] situation like Vietnam were to develop," should the United
States "send troops" vs. should the United States "send troops to stop a communist
takeover") often changes the results by a substantial margin (Schuman & Presser,
1981, pp. 275-96)—but on this issue it makes no difference. Indeed, the distri-
bution of responses remains roughly unchanged even when aggravated categories
of death-worthy crimes are mentioned. Compare, for example, the 12/82 Yanke-
lovitch survey question ("Wider use of the death penalty for such crimes as hi-
jacking or killing a police officer"—73% favor) to the standard question on the
4/83 GSS survey (73% favor). Nor does it seem to make much of a difference if
a popular justification for the death penalty is spelled out. For example, the 6/84
AP/Media General survey asked, "Various proposals have been made as possible
solutions to the increased crime rate. Please tell me whether you personally favor
or oppose the following measures to reduce the crime rate...." The death penalty
alternative got about the same level of "Favor" responses (69%) as the death
penalty questions on a 1/84 Roper survey, which referred to "... serious crimes
such as murder, kidnapping, etc." (68%), and the 4/84 GSS (70%), which asked
the standard question.
The form of endorsement of the death penalty that is offered also appears to
make little difference. It can be "Are there any crimes for which the death penalty
is justified?" (CBS/NYT, 7/77, 7/88, 4/89), or "Do you favor or oppose . . . bring-
ing back the death penalty?" (Yankelovitch, 9/83, 12/83, 9/84), and the levels of
support are close to those obtained with general attitude questions. It does not
matter if the respondents are asked whether they would vote for a proposition
favoring the death penalty (Gallup, 10/74, 9/82); nor—despite large acquiescence
response bias effects in other contexts (Schuman & Presser, 1981, pp. 203-30)—
does it matter if they are required to state that they would vote to oppose "Amend-
ing the constitution to outlaw the death penalty" (NBC/Wall Street Journal 127
91). The only changes in question format that seem to have predictable effects on
levels of support are those that deal with the frequency of death sentences. On the
one hand, questions that ask whether the respondents favor a mandatory death
penalty produce substantially lower support; for example, compare the 12/81 Gallup
survey (54% favor mandatory death penalty) to the 4/82 GSS (74% generally favor
death penalty). On the other hand, some surveys ask whether, among "persons
convicted of first degree murder/' the death penalty should be given to "all," "no
one," or whether it "should depend on the circumstances of the case and the
character of the person." If we interpret the answer "no one" as opposition to
capital punishment, and "all" and "depends" as support, these questions produce
a sizable pro-death penalty shift; for example, compare the 4/73 Harris survey
"All" + "Depends" = 81%) to the 4/73 GSS (60% general support for capital
punishment).
It seems that most Americans know whether they "favor" or "oppose" the
death penalty, and say so in response to any question that can reasonably be in-
terpreted as addressing that issue. This conclusion is reinforced by evidence that
the form of the response categories has little effect on overall levels of expressed
support for capital punishment. Several surveys have allowed respondents to say
that they favor or oppose the death penalty "strongly" or somewhat" (L.A. Times,
4/81, 7/86, 3/89), or "very strongly" and "not too strongly" (Gallup, 1/86). The
total proportions on each side of the neutral point are consistent with roughly
contemporaneous surveys that offered only two choices. In addition, three Los
Angeles Times surveys (3/85, 7/86, 3/89) offered the choice "I haven't heard
enough about that to say." Similar manipulations have been shown to have dra-
matic consequences in related contexts. For example, Schuman and Presser (1981,
p. 120) describe an experiment on the 1974 GSS in which the following question
was asked to a split sample in two forms, with and without the italicized portion:
"In general, do you think the courts in this area deal too harshly or not harshly
enough with criminals, or don't you have enough information about the courts to
say?" In the first form 6.8% volunteered that they didn't know; in the second 29%
chose "Not enough information to say." By comparison, only 4% of the respon-
dents in the 1989 Los Angeles Times survey said that they "hadn't heard enough"
to express an opinion on the death penalty (an additional 9% said they were not
sure or refused to answer), and only 2% said so on the other two surveys that
offered this option.
Expressed Reasons for Death Penalty Attitudes
Before 1970, almost no one thought to ask survey respondents why they favored
or opposed the death penalty. Since then several researchers have attempted to do
so; their general conclusion is that simply asking people about the reasons for their
attitudes is not an effective means of discovering those reasons. Ellsworth and Ross
(1983), for example, found that respondents tended to endorse all "reasons" that
were consistent with their basic position. If they favored capital punishment, they
agreed with almost all the reasons for support; if they opposed capital punishment,
they agreed with almost all the reasons for opposition. Ellsworth and Ross con-
cluded that most people's attitudes toward capital punishment are basically emo-
tional. The "reasons" are determined by the attitude, not the reverse.
Even though it now seems naive to think we can discover the reasons for peo-
ple's attitudes toward capital punishment simply by asking direct questions, an
examination of people's expressed reasons can still be illuminating. Overall levels
of support for the death penalty are far higher than they were in 1973, executions
have resumed, thousands of people are now on death row, and there have been
conspicuous cases of innocent people narrowly escaping execution. Do people give
the same reasons for their attitudes as they did 20 years ago?
There are two basic methods for asking people about reasons for their death
penalty attitudes. The first is to provide a list of possible reasons for supporting or
opposing the death penalty and to ask respondents which ones they agree with.
The second, less common, is simply to ask the open-ended question, "Why do you
favor (or oppose) capital punishment?" The first method is susceptible to the prob-
lem discovered by Ellsworth and Ross (1983): Any reason on the list that supports
one's basic attitude is likely to be endorsed, and the only way to differentiate among
them is to look at relative strength of endorsement. The second method is poten-
tially much more useful, as it does not suggest reasons to respondents that they
had not previously entertained. However, people are often unaware of the bases
for their attitudes, and if they have not thought much about why they favor or
oppose the death penalty they may not be able to give valid answers (Nisbett &
Wilson, 1977).
Deterrence and Retribution

Twenty years ago the reason most commonly given for supporting the death penalty
was that it was a deterrent to crime (Thomas, 1977; Thomas & Foster, 1975;
Vidmar, 1974; Vidmar & Ellsworth, 1974). At that time the deterrent effectiveness
of the death penalty was a hotly debated issue, and surveys of death penalty atti-
tudes began to include questions about belief in deterrence. Thus, unlike other
rationales for the death penalty, we have two decades of comparable data on belief
in deterrence. The top portion of Figure 7-3 shows the percent of people supporting
the death penalty, and the percent of people agreeing that the death penalty is a
deterrent to murder (or crime, the wording varies slightly from one poll to the next)
in surveys of nationwide random samples of adults from 1972 to 1991. Only polls
that offered two alternatives, rather than scales of belief strength, are presented, for
the sake of comparability.
It is clear that the marked increase in support for the death penalty is not due
to a growing belief that the death penalty is a deterrent to murder. Belief in the
deterrent efficacy of the death penalty hovers around 60% for most of the 19-year
period, while support for the death penalty rises from 58% to 75%. Indeed, a
number of recent polls indicate that people believe other measures, such as job
training and drug rehabilitation programs, are more effective than capital punish-
ment in reducing crime (Bowers, 1993; Bowers & Vandiver, 1991a, 1991b).
Proponents of capital punishment, of course, are far more likely than opponents
to agree that the death penalty is a more effective deterrent than life imprisonment.
In their 1974 survey of California Bay Area residents, Ellsworth and Ross (1983)
found that 93% of proponents agreed that "the death penalty is a more effective
deterrent than life imprisonment," while 92% of opponents disagreed, and many
other polls have found that belief in deterrence is highly correlated with support
for the death penalty. However, in their attempt to find out whether people's belief
in deterrence was a fundamental reason for people's death penalty attitudes, Ells-
worth and Ross (1983) asked people whether their basic position on the death
penalty would change if it could be proven that they were wrong about its deterrent
efficacy. They found that most proponents would still favor the death penalty if
life imprisonment were an equally effective deterrent, and most opponents would
still oppose it even if it were a "much more effective" deterrent than life impris-
onment. The same hypothetical question was added to the Gallup Poll in 1985,
with very similar results. Proponents would still favor the death penalty if it' 'does
not lower the murder rate" (72%, 73%, and 69% in 1985, 1986, and 1991, re-
spectively), and opponents would still oppose it if it were a deterrent (67%, 71%,
65%; Gallup Poll News Service, 1991). Thus current public opinion poll data con-
tinue to support the conclusion that people's attitudes about the death penalty are
not determined by their beliefs in its deterrent effectiveness.
The other major reason for favoring the death penalty is retribution. Commen-
tators in the early 1970s (Thomas & Foster, 1975; Vidmar & Ellsworth, 1974)
argued that an expressed belief in deterrence was a more socially acceptable, * 'le-
gitimate' ' rationale for supporting the death penalty than the more emotional, pos-
sibly vengeful motive of retribution, and thus was more likely to be a reason people
were willing to offer to pollsters. Several scholars have suggested that the norms
of social desirability have changed, and that retribution is now an acceptable reason
for favoring the death penalty (Fox et al., 1991; Haney, Hurtado, & Vega, 1993;
P. W. Harris, 1986; Warr & Stafford, 1984). As support for the death penalty has
increased, so has willingness to endorse retribution as a motive.
The measurement of people's belief in retribution is much more problematic
than the measurement of their death penalty attitudes or their belief in deterrence.
We have seen that changes in question wording have little effect on general levels
of support for the death penalty, and the same is true for belief in deterrence. For
example, the 1980 and 1981 polls reported in Figure 7-3 were conducted by two
different organizations (Research & Forecasts, 5/80; Audits & Surveys, 10/81). The
first asked, "Does the death penalty discourage murder?" The second asked, "Do
you believe that capital punishment—the death penalty—is or is not a deterrent to
crime?" In both cases 63% of the population expressed a belief in deterrence.
Harris (4/73) found the same level of belief in the deterrent superiority of capital
punishment over life imprisonment, regardless of whether "life imprisonment"
Figure 7-3. Reasons given for death penalty support.

The top two lines show the percentage of Americans supporting the death penalty and the
percentage agreeing that the death penalty deters crime (yes-no questions). The deterrence
questions are taken from the following national samples: Opinion Research Corp. 7/72;
Harris 4/73; CBS/New York Times 1/77, 7/77, 3/90, 8/90; Research & Forecasts 5/80;
Audits & Surveys 10/81; Gallup 1/85, 1/86, 6/91. For 1973, and all years from 1985 to
1991, the general support questions come from the same surveys; for the other years the
data points are from the surveys reported in Figure 7-1.
The lower four lines show responses to open-ended questions asking, "Why do you
favor the death penalty?" The data are from the following polls: ABC News/Washington
Post 5/81; Gallup 1/85, 6/91.
included parole as an option. Retribution questions, on the other hand, can be

phrased in terms of a principled belief in justice, a merciless passion of revenge,
or anywhere in between. Very few researchers have used agree-disagree retribution
questions comparable to the deterrence questions, and every survey phrases the
question differently. Not surprisingly, endorsement of items designed to tap retrib-
utive sentiments ranges from quite low (when words like "revenge" are used) to
quite high. The variation due to question wording makes it impossible to tell if
there has been any long-term trend.
Since 1980 there have been three national random-sample polls that asked open-
ended questions about respondents' reasons for supporting or opposing the death
penalty (ABC News/Washington Post, 5/81; Gallup 1985 and 1991, reported in
Gallup Poll News Service, July 26, 1991). The lower graph on Figure 7-3 presents
these data. Retribution ("a life for a life") has been a more popular reason than
belief in deterrence since 1981. It is possible that people were more reluctant to
express retributive motives a decade earlier, but we have no comparable data.
Support for the law of talion has increased over the past 10 years, but far more
striking is the marked decrease in the proportion of people who spontaneously give
general deterrence as their reason (see also Warr & Stafford, 1984). Retribution is
by far the most common reason given for favoring the death penalty.
Cost
Figure 7-3 shows a slight upward trend in people's willingness to mention the cost
of keeping a person in prison. When we developed our list of possible justifications
for the death penalty in 1973 (Ellsworth & Ross, 1983), we interviewed death
penalty supporters in depth to try to make sure we covered the range of possible
reasons. No one mentioned the high cost of prison, and we did not include it.
Apparently discussing human lives in monetary terms was even more unacceptable
than believing in revenge (45% of proponents we sampled agreed that " society
has a right to get revenge when a very serious crime like murder has been com-
mitted"). People have become less hesitant to mention cost spontaneously (Gallup
Poll News Service, 1991), and when cost is explicitly included as an alternative, a
substantial minority of proponents endorse it. In 1986 P. W. Harris found that 38%
of those who favored a death penalty in all circumstances and 21% of those who
favored it in some circumstances endorsed "the high cost of imprisonment" as
one of their reasons. If this is a genuine basis for supporting the death penalty, it
is a misguided one; the available evidence suggests that the death penalty is far
more expensive than life imprisonment (Cook & Slawson, 1993; Costanzo &
White, this issue; Dieter, 1992).
Incapacitation
Finally, Figure 7-3 indicates that only 20% or fewer respondents give incapacita-
tion—keeping a particular killer from killing again—as a reason for favoring the
death penalty, and there is no clear trend over the decade. However, a series of
recent studies aimed at discovering whether there are any alternatives to capital
punishment that would satisfy the public (Bowers, 1993; Bowers & Vandiver,
1991a, 1991b; Dieter, 1993) suggests that incapacitation may be more important
to people than their responses have indicated.
We have argued, as have many others (Ellsworth & Ross, 1983; P. W. Harris,
1986; Tyler & Weber, 1982; Wallace, 1989), that death penalty attitudes are an
aspect of people's ideological self-definition, and that they are strongly held. Bow-
ers (1993) argues that the apparent strength of people's commitment to capital
punishment may be due to the fact that survey questions rarely allow them to
compare it with any alternative; either no alternative is given or "life imprison-
ment" is presented without further specification. Twenty years ago it made no
difference whether "life imprisonment" or "life imprisonment without parole"
was included as the alternative to the death penalty (Harris, 4/73), but there are
reasons to believe times have changed. First, an increasing number of studies in-
dicates that most people, including jurors in capital cases (Bowers, 1993; Dieter,
1993), do not believe "life imprisonment'' means anything of the sort. In a recent
study, only 4% of respondents believed murderers sentenced to life actually spend
their whole lives in jail; the average estimate of a "life sentence" was 15.6 years
(Costanzo & Costanzo, 1994; Dieter, 1993). In states where the only alternative to
the death penalty is life without parole, few citizens realize that this is so (Dieter,
1993). (In California, the state does not leave these impressions to chance. The
jury in a capital case is instructed by the judge that "a Governor may in the future
commute or modify a sentence of life imprisonment without the possibility of
parole to ... include the possibility of parole." [California v. Ramos, 1982].) Sec-
ond, Willie Horton and other high-publicity cases have made the image of the
released prisoner who immediately commits new atrocities highly available to the
public.
Bowers asks respondents, "If convicted murderers in this state could be sen-
tenced to life in prison with absolutely no chance of ever being released on parole
or returning to society, would you prefer this as an alternative to the death pen-
alty?" In all five states (California, Florida, Georgia, Nebraska, New York) where
this question has been asked, more people have preferred this form of life impris-
onment (Bowers, 1993). Adding a requirement that the murderer "be required to
work in prison industries for money that would go to the families of their victims"
further diminishes support for the death penalty. Dieter (1993) replicated these
results in a national poll.
Both incapacitation and retribution probably play a role in people's willingness
to endorse these alternatives. People want to be absolutely sure that vicious mur-
derers never ever have a chance to victimize anyone else (outside of prison), and
they do not believe "life imprisonment" currently provides that sort of guarantee.
But they also want to be sure the murderer never ever has a chance to live a normal
life, because he does not deserve to. The addition of a commitment to contribute
to the victim's family adds a further element of retribution—in the form of resti-
tution—and undercuts the argument that death is the only punishment that could
recompense the surviving victims.
There are problems with demand characteristics in Bowers' work. The question
wording is very strong, and the alternatives to the death penalty are arranged in a
sequence of severity from "parole after 25 years" to "parole after 40 years" to
"absolutely no chance of parole" to "no chance of parole" plus restitution. Also,
we must remember that (as on all contemporary surveys) strong majorities in each
of these states do support the death penalty under the conditions that they believe
actually prevail. In that context, it's hard to say what these results mean. Would
anything short of death convince most Americans that there is really no chance
that a prisoner will ever return to society? Is the popularity of real "life without
parole" best understood as a qualification on popular support for the death penalty,
or as an expression of cynicism about the prison system? Despite these problems,
this is the first new approach to studying attitudes toward capital punishment in
many years, and the first approach that has suggested that there might be substantial
flexibility on the part of those who favor the death penalty.
Emotions
Many commentators have argued that death penalty attitudes are not based on
rational considerations at all, but are fundamentally noninstrumental symbolic at-
titudes, based on emotions and ideological self-image (Ellsworth & Ross, 1983;
Gorecki, 1983; P. W. Harris, 1986; Tyler & Weber, 1982; Wallace, 1989). Oddly
enough, despite the popularity of this idea, hardly anyone has asked respondents
questions that give them the opportunity to express their emotions directly, and
some have intentionally confined their response alternatives to those that are ra-
tional (P. W. Harris, 1986). Perhaps researchers have feared that respondents might
be reluctant to express emotional bases for their attitudes, but this fear may be
groundless. Ellsworth and Ross (1983), for example, found that 79% of these who
favored the death penalty said that they had sometimes "felt a sense of personal
outrage when a convicted murderer was sentenced to a penalty less than death,"
and 34% said that the death of a murderer could give them "a sense of personal
satisfaction." In any case, we will not find out unless we ask. Emotions are be-
coming a legitimate topic in the study of other political attitudes (Kinder, 1994),
and we would hope to see the emotional correlates of death penalty attitudes studied
dkectly, rather than being inferred from the failure of nonemotional beliefs to be
very informative.
Reasons for Opposing Capital Punishment

Many fewer polls have asked why the opponents oppose capital punishment. This
may be partly because by the time survey researchers started asking detailed ques-
tions about reasons, the proponents were a clear majority, so^their views were more
relevant to public policy. It may be because the clash between utilitarian reasons
(deterrence, cost) and reasons based on values (retribution) is less salient.
Just as most proponents say they would still favor the death penalty if it had
no deterrent effect, most opponents would still oppose it even if it were an effective
deterrent (61%, 71%, and 65% in 1985, 1986, and 1991, respectively; Gallup Poll
News Service, 1991). Thus, like the attitudes of the proponents, attitudes of most
opponents are very strong, and not based on utilitarian considerations. They are
willing to sacrifice lives to avoid having a death penalty. On the other hand, saying
that they would be unmoved by evidence of superior deterrence does not reflect
any inconsistency: When asked why they oppose the death penalty, opponents
rarely refer to its failure as a deterrent. In response to open-ended questions in
surveys over the last 10 years, only 5%-10% of opponents mentioned deterrence.
Other "utilitarian" reasons, such as the unfak application of the penalty, the risk
of executing innocent people, or the possibility of rehabilitation, are also very
infrequently mentioned as reasons for opposition.
People oppose the death penalty because they think it is wrong. In 1981, 1985,
and 1991 (ABC/Washington Post, 5/81; Gallup Poll News Service, 1991) the most
commonly given "reason" has been that it is "wrong to take a life" (or the slightly
more ambiguously coded "taking a life solves nothing"), and the proportion of
opponents giving this opinion has held steady at about 40%. The next most popular
reason is basically that same reason with an explicitly religious rationale, e.g.,
"punishment should be left to God."
People favor the death penalty because they think killing is wrong: "a life for
a life" is the most popular reason spontaneously given for supporting it. For both
proponents and opponents, their preferred rationale is moral and absolute; they are
taking a stand that brooks no argument and suggests little differentiation. Such
attitudes are unlikely to be swayed by arguments based on factual information.
Knowledge and Beliefs
In his concurring opinion in Furman v. Georgia (1972), Justice Thurgood Marshall

argued that popular support for the death penalty was based on ignorance. There
are two parts to this famous hypothesis: (1) The American public is generally
unaware of several unhappy "facts" about capital punishment—that it does not
deter homicide more than long terms of imprisonment, that its operation is inhu-
mane, that its administration is discriminatory, that convicted murderers are rarely
executed, and that they pose little future threat to society (pp. 364-65). (2) If these
"facts" were well known, "the great mass of citizens . . . would conclude that the
death penalty is immoral and therefore unconstitutional" (p. 363). Virtually all the
published studies on the relationship between death penalty attitudes and factual
knowledge were conducted in response to this Marshall Hypothesis; the two best,
within three years after Furman.
Sarat and Vidmar (1976) interviewed 181 residents of Amherst, Massachusetts,
in 1975. Most of their respondents knew that capital punishment is rarely imposed
and that it is subject to discrimination by wealth (59% on each item), but few knew
that "studies have shown" that it does not deter homicide (36% and 22%, de-
pending on the form of the question). They conclude that the first step in the
Marshall Hypothesis is supported in part: their respondents were reasonably well
informed on the use of the death penalty, but ill informed on its effects. Ellsworth
and Ross (1983) provide more detailed data on a survey of 500 northern Califor-
nians in 1974, which also revealed widespread ignorance. Most respondents, from
54% to 89%, did not know that most Western European countries had abolished
capital punishment, that comparisons across time and jurisdiction fail to show that
the death penalty deters, that it is more costly than life imprisonment, and so forth.
In general, opponents of the death penalty were more likely to answer correctly,
but, as the authors note, this does not necessarily mean that they were better in-
formed. It is also possible that the two groups were equally ignorant, but each
tended to agree with the items supporting their position. This would create a bias,
since on most of the items the correct answer was consistent with the anti-death
penalty position. In addition, supporters and opponents were in general agreement
on several issues. Majorities in both camps (62% and 81%, respectively) agreed
correctly on the discrimination item, and pluralities agreed incorrectly on relative
cost and abolition in Europe. The only strong differences were on several items
related to deterrence and on a related item concerning the average length of time
served under a life sentence.3
Ellsworth and Ross also found a great deal of uncertainty about the operation
and effects of the death penalty. Many respondents happily checked "I have no
idea" in response to these questions. On a 5-point scale, this admission of igno-
rance drew from 25% to 49% of the respondents on seven of nine information
items, and was the modal response on four. The exceptions were the cost item
(16% said "I have no idea"—but only 11% answered correctly that capital pun-
ishment is not cheaper than life imprisonment) and an item on discrimination by
wealth (9% had "no idea," and 68% correctly said that poor murderers were more
likely to be sentenced to death). Both of these questions seem to call for common
sense social-economic reasoning; in one case, common sense is probably accurate,
in the other it is misleading. Equally striking is the tentativeness with which those
respondents who did have an idea answered. On every item, those who said, "I
think it's true," outnumbered those who said, "I'm sure it's true," and those who
said, "I think it's false," outnumbered those who said, 'Tm sure it's false." These
comparisons hold for respondents who favor the death penalty, oppose it, or are
undecided. In only 1 out of 36 possible comparisons did those who were sure (pro
or con) outnumber those in the same group who had tentative thoughts in the same
direction.
The second step in Justice Marshall's argument—that if the facts were known,
capital punishment would be rejected—is an expression of democratic optimism:
knowledge persuades. Unfortunately, the best study on the point is discouraging.
Lord, Ross, and Lepper (1979) compared subjects who believed the death penalty
deters homicide and subjects who believed it does not. Both groups were given a
pair of fictitious studies, one providing data that clearly supported the deterrence
hypothesis and the other strongly refuting it. In each group (and regardless of the
methodologies of the studies) the subjects accepted the evidence that favored the
position they already held, and rejected the contrary evidence. The net effect of
reading two balanced but contradictory studies was that prior beliefs were strength-
ened and preexisting differences were polarized. Similarly, Roberts (1984) found
that pro- and anti-death penalty subjects remembered those portions of stimulus
literature that supported their positions.
The world, however, does not have the same structure as Lord et al.'s elegant
study. Facts about the death penalty are not neatly balanced; as Justice Marshall
wrote, on the important factual issues that have been in dispute (deterrence, cost,
discrimination, consistency) the truth is on the side of anti-death penalty arguments.
Moreover, some citizens (unlike the subjects in this study) have weak opinions on
the death penalty, or are entirely undecided. Sarat and Vidmar (1976) examined
the effect of information on attitudes by asking their respondents to read one or
both of two 1500-word essays containing information about Utilitarian aspects of
capital punishment (deterrence and recidivism) and Humanitarian aspects (discrim-
ination and the process of executions); a control group was given an unrelated
essay about other legal issues. A posttest of the respondents' death penalty attitudes
seemed to support Justice Marshall. The informational essays did produce a shift
in the direction of opposition to capital punishment; the Utilitarian essay produced

a larger change than the Humanitarian, and the combination was more effective
than either separately.
A close review of these findings shows them to be entirely consistent with Lord
et al. Sarat and Vidmar measured death penalty attitudes on a 7-point scale, from
"very strongly in favor" to "very strongly opposed." In the three experimental
conditions, only 4% (1/24) of respondents who favored the death penalty "very
strongly" changed thek attitude in the expected dkection, and only 21% (6/28) of
those who favored it "strongly." By comparison, 57% (34/60) of respondents who
were "uncertain" or who favored or opposed the death penalty "somewhat"
moved in the dkection of opposition. Moreover, only 2 of the 46 respondents whose
attitudes changed to any extent (4%) moved from any position in support for the
death penalty to any level of opposition. All other shifts were changes of intensity
within groups (primarily among the less intense) and movement in and out of the
undecided group. This suggests that general knowledge of the truths that Justice
Marshall wanted to teach the public would have only a modest effect on public
opinion. At most, it might increase opposition by about the proportion of people
who are undecided—currently around 8%—and it would probably have little or
no impact on those who support the death penalty most strongly.
Recent national poll data are consistent with this conclusion. We have akeady
discussed the data on beliefs about deterrence. In addition, Gallup polls in 1985
and 1991 found that 39% and 45% of the respondents, respectively, agreed that
Blacks are more likely to be sentenced to death than Whites. On the same polls,
64% and 60% agreed that poor defendants were more likely to be sentenced to
death than rich defendants. Gallup (Gallup Poll News Service, 1991) also reports
that Black respondents were considerably more likely than Whites to agree that
these forms of discrimination take place, 73%-41% for race and 72%-59% for
poverty. Similarly, on a 11/86 AP/Media General poll, 50% said that the death
penalty "Is not carried out fakly," and only 32% said that it "Is carried out fakly."
Given the overall levels of support for the death penalty since 1985, the inescapable
conclusion is that a large proportion of the American public akeady believes the
death penalty is unfak, but supports it nonetheless.
Who Should Be Sentenced to Death?
Mandatory vs. Discretionary Death Penalty

When the Supreme Court declared current capital punishment statutes unconstitu-
tional in 1972, it did so on the ground that the discretion allowed to jurors in
deciding who should live and who should die was so unlimited that the choice was
ultimately arbitrary (Furman v. Georgia, 1972). Some states attempted to remedy
this arbitrariness by instituting mandatory capital punishment: everyone convicted
of specified categories of murder would automatically be sentenced to death. In
1976 the Supreme Court held that mandatory death penalties are unconstitutional
(Woodson v. North Carolina, 1976; Roberts v. Louisiana, 1976). The public ap-
parently shares the view that not everyone who is eligible for the death penalty
should get it. Support for a mandatory death penalty is consistently weaker than
general support for the death penalty (see above, p. 94), although it too has grown
in the recent past. When respondents are given a choice between a mandatory and
a discretionary death penalty, they prefer the latter. The Harris poll included this
question in 4/73, 12/76, 1/83, and Gallup in 7/85. Except for 1976, when there
was only a slight preference for a discretionary death penalty, over 50% of those
polled favored a discretionary death penalty, while fewer than 30% favored a man-
datory death penalty.
Further, some of those who express support for a ' 'mandatory'' death penalty
do not think that everyone convicted should be executed. Ellsworth and Ross
(1983) found that the percentage of people who said that 100% of those convicted
of a given crime should be executed was always lower than the percentage of
people who endorsed a "mandatory" death penalty for that crime. In that same
survey, some opponents of the death penalty felt the proportion of people who
should be executed for a given crime should be greater than zero. It is clear that
proponents of mandatory death penalties want the discretion to spare an occasional
sympathetic killer, while some opponents of capital punishment want the discretion
to execute a few especially villainous ones. Most people prefer a death penalty that
allows the decision maker to make distinctions in every case.
Most capital sentencing statutes attempt to codify the important distinctions by
providing juries with lists of aggravating factors that might justify a sentence of
death, while reminding them that any factor may be considered as a justification
for rejecting the death penalty. No national poll has examined people's views of
the kinds of considerations that should distinguish between life and death for a
given crime, although a few smaller scale surveys have done so (e.g., Haney et al.,
1993; Harris, 1986). The national polls have focused primarily on the types of
crimes that should be punishable by death, and occasionally on the type of criminal.
Which Crimes Should Be Punishable by Death?

Table 7-1 displays levels of support for the death penalty for selected crimes, based
on nationwide surveys using questions of the general form, "Do you favor the
death penalty for the crime of X?" Questions allowing the three options "death
for all," "death for some," and "death for none" generally show higher levels of
support when the "all" and "some" categories are combined. Open-ended ques-
tions ("What do you think should be the penalty for X?") generally show lower
levels.
The most obvious conclusion to be drawn from the table is that the rise in
general support for the death penalty has been accompanied by an across-the-board
rise in support for capital punishment for the various specific crimes. These trends
can also be seen in the percentage of people who favor death as the penalty for
crimes not included in the table: arson, robbery, hijacking, or kidnapping in which
someone is killed (Roper 3/74, 3/76,4/80); and assassination of high public officials
Table 7-1.
Percent Favoring the Death Penalty for Specific Crimes
Crime
Kill police/
Year Murder Rape Hijacking guard Paid killing Terrorism Child sex
1972 53 38 60
1973 60
1974 63 54 58
1975 60
1976 66 52 56
1977 67 55
1978 66 32 37
1979
1980 57 58 64
1981 66 37 22
1982 74
1983 73
1984 70
1985 76 45 45
1986 71 54 62 (Police) 74 79 35
56 (Guard)
1987 70
1988 71 51 50
1989 74
1990 75
Note. The data are from national polls asking yes-no questions of the format, ' 'Do you favor the death
penalty for the crime of X?" The sources are as follows: Hijacking—1972 Opinion Research Corp.,
all other years Gallup; Terrorism—Harris; Rape—1986 Associated Press/Media General, all other years
Gallup; Paid killing—1986 Associated Press/Media General, all other years Roper; Child Sexual Mo-
lestation—Associated Press/Media General; Killing a policeman or prison guard—1972 Opinion Re-
search Corp.; 1974, 1976, 1980 Roper; 1986 Associated Press/Media General. The sources of the data
on Murder are described in footnote 1.
(Roper, 3/74, 3/76, 4/80; Gallup, 11/85, 9/88). In general death is favored more
for the crimes involving killing, although a substantial number of people also favor
death for rape, hijacking, and spying.
It also seems that particular crimes are singled out for death when they have
attracted public attention. For example, public support for the death penalty for
rape and for terrorism has increased much more during the past 15 years than
support for the execution of people who kill police officers or prison guards. The
feminist movement has clearly affected public consciousness about the seriousness
of rape, and terrorism has become a much more salient issue. Salient crimes change
with the times. In 1942, in wartime, 85% of a nationwide sample spontaneously
named the death penalty as the appropriate punishment for spies (Gallup, 7/42);
since then a majority has always opposed it. In 1986 the sexual molestation of a
child became a survey item for the first time, and 35% of the population favored
the death penalty for this crime (AP/Media General, 11/86); it would be wonderful
to know what people would have said in 1970, or 1960, or 1950, before the crime
was widely publicized.
Another media crime of the late 1980s and 1990s is drug dealing. In a 6/51
Gallup poll, in response to an open-ended question, 14% of Americans said they
favored the death penalty for "selling drugs to teenagers." In 1969 only 2% men-
tioned the death penalty as a possible punishment for "dope peddling" (Gallup,
1/69); in both years, the plurality favored long prison sentences. Those are the only
two national surveys before 1985 to ask about the death penalty for selling drugs.
Since then eleven surveys have asked about it, but their questions are so different
that support ranges from 1% (AP/Media General, 11/86) in which only the 40%
who said they favored the death penalty for crimes other than murder were asked
about specific crimes, to 73% (Times Mirror, 5/90), in which 42% of the population
"strongly favored" and 31% "favored" the death penalty for "drug traffickers."
The idea of death for drug dealing is new, and question wordings suggest every-
thing from the little kid who sells cocaine on his block to major drug "kingpins,"
so it is impossible to say how the public feels on this issue. It is a new issue, a
hot issue, the public is uncertain, and question wording makes a big difference.
Not enough time has elapsed to observe trends on any particular question.
Which Criminals Should Be Punished with Death?

Three groups—women, young people, and people suffering from mental retarda-
tion—have been singled out by survey researchers as possible exceptions to statutes
authorizing the death penalty. In 1937, 58% of the population favored the death
penalty for women, about the same proportion as favored the death penalty in
general (Gallup, 12/37). By 1953 the proportion had fallen to 51%: 75% of those
who favored the death penalty in general (68%) also favored it for women (Gallup,
1953). Although women are hardly ever sentenced to death, it appears that there
is no overwhelming public sentiment against it; more likely it is because women
are much less likely than men to commit capital murder (Rapaport, 1991). Since
1953 the question has not been included on any national survey.
Support for the execution of young people ("under 21," "under 18," "teen-
ager") has risen dramatically since 1936, when this question was first asked. In
1936, 28% of Americans were "in favor of the death penalty for persons under
21" (Gallup, 12/36). By 1953 this proportion had dropped to 19%, and by 1957
it had dropped still further to 11% (Gallup, 11/53, 9/57). In 1965 it had risen to
21% (Gallup, 1/65) even though general support for the death penalty was at its
lowest. The question was not asked again until 1988 (Harris, 9/88) when 44%
favored the death penalty for persons under 18, and in a 1989 poll (with a consid-
erably smaller sample than the others) 57% favored the death penalty for 16- and
17-year-olds (Time/CNN/Yankelovich, 6/89). While this last figure may be exag-
gerated, clearly the former reluctance to execute adolescents has been muted, per-
haps because people's current image of a violent killer is an adolescent.
That these two recent polls do not reflect a willingness to execute all murderers
is indicated by people's views, on the same two polls, about the execution of
"mentally retarded individuals." In 1988 only 21% of the population favored the
death penalty for mentally retarded killers; in 1989 the figure was 27%. This lack
of public support for the execution of mentally retarded offenders is particularly
noteworthy because it has not been reflected either in practice—several retarded
people have been executed and many more are awaiting execution—or in law. The
Supreme Court held in 1989 that it does not offend public standards of morality
to execute a person who was mentally retarded (Penry v. Lynaugh, 492 U.S. 302).
No nationwide survey has asked about aggravating factors other than the type
of crime and the demographic characteristics of the criminal. A few more limited-
sample surveys provide some data about the kinds of cases that provoke the strong-
est support for the death penalty, the criminals the public most wants to see
executed. Two characteristics stand out: (1) the murder was especially brutal (Ha-
ney et al., 1993; Harris, 1986), and (2) more than one person was killed (Ellsworth
& Ross, 1983; Haney et al., 1993; Harris, 1986). Although the data are sparse, it
is plausible that these are the killers who come to mind when people are asked
about the death penalty—the remorseless, brutal, uncontrollable killer. A few stud-
ies have found that people are far more likely to favor the death penalty in the
abstract than they are to favor it in specific, concrete cases (Doob & Roberts, 1984;
Ellsworth, 1978; Fein & Lord, 1987), and have raised the hypothesis that this is
because most real murderers seem less deviant and horrible than the nightmare
vision of a killer that comes to mind when we are asked about capital punishment.
Conclusion
Support for the death penalty is at an all-time high, both in the proportion of
Americans who favor capital punishment and in the intensity of their feelings. Most
people care a great deal about the death penalty but know little about it, and have
no particular desire to know. This is not surprising, as their attitudes are not based
on knowledge. Although all justifications consistent with one's position are typi-
cally endorsed, those that are offered spontaneously and endorsed most strongly
are not the kind that could be easily changed by information. This characterization
of death penalty attitudes is based on hypotheses that have been in the literature
for nearly 20 years (Ellsworth & Ross, 1983; Sarat & Vidmar, 1976); indeed, much
of the work of the past 20 years has simply provided empirical support for old
hypotheses rather than generating new ideas. In particular, it does not explain why
support for the death penalty has steadily increased beyond all previous levels.
In the 1930s and 1940s pollsters rarely asked about the death penalty, probably
because it was an accepted and uncontroversial fact of life. (Interestingly, two of
the earliest death penalty questions on national polls—Gallup 12/36 and Gallup
11/53—were asked on the heels of unusual and highly publicized executions:
Bruno Hauptmann for the Lindbergh baby kidnap-murder in April 1936, and the
Rosenbergs for espionage in June 1953.) In any event, no trend can be inferred
from the sketchy data that are available before the 1950s. Since then, however,
overall trends in support for the death penalty have been well documented and, at
the aggregate level, they seem easy to explain by reference to crime and homicide
rates (Page & Shapiro, 1992, pp. 92-94; Rankin, 1979). The initial period of de-
clining support (1953-1966) occurred at a time when the reported violent crime
rate and the homicide rate were both comparatively low; the rapid increase in
support that followed (1966-1982) corresponded roughly to a period of rapid in-
crease in both of these indices of criminal violence; and the current pattern of high
but stable support (1982-1992) developed in a period of high and reasonably stable
violent crime and homicide rates. Figure 7-4 shows these trends.
This is a simple commonsensical explanation: when crime goes up, people look
for harsher punishments to bring it back down. Page and Shapiro report similar
changes in the 1960s and 1970s for other sketchier attitudinal measures of puni-
tiveness, such as the proportion of respondents who felt the courts are "not harsh
enough" in their treatment of criminals (1992, pp. 90-93). The actual relationship
between crime and death-penalty attitudes is bound to be more complicated. Public
attitudes are not shaped by events themselves, but by public perception of those
events. Thus it may be appropriate to assume a time lag between the reported crime
rate and its impact on public opinion (Rankin, 1979), and it is likely that other
factors—such as changes in media coverage—exaggerate or dampen the effects of
the underlying phenomena.
Despite these qualifications, the first two stages we have described seem clear
enough: support for capital punishment declined when crime was low, and in-
creased when it rose. What has happened since, and what to expect in the future,
are different matters. For example, Fox et al. point out that the homicide rate peaked
in 1980 at 10.2 (per 100,000 people), and declined to 8.4 by 1988, while support,
if anything, increased slightly (1991, p. 509, Fig. 3). This could mean that the
decrease in homicide had not yet been noticed and absorbed; for example, Fox et
al. cite data showing that, in 1989, 82% of a national sample believed, erroneously,
that crime was on the increase (Strasser, 1989). It could also mean that the decrease
in homicide (assuming it was known) was too small or short term to matter. (And
indeed, as Figure 7-4 reveals, the homicide and crime rates have both increased
again since 1987.) Finally, it is possible that this is not a symmetrical relationship,
at least not in the short run. People who came to support the death penalty because
of increasing crime may not change their minds back once the crime rate goes
down. Under some circumstances, they might interpret the decrease as evidence
that the death penalty, or other punitive measures, were successful.
Whatever the relationship between crime and support for the death penalty, it
is not driven by personal experience. Many studies have shown that people who
have been victimized themselves, or who fear for their personal safety, are no more
likely to support the death penalty than those who have been more fortunate, or
are less fearful (Fattah, 1979; Fox et al., 1991; Rankin, 1979; Smith, 1976; Stinch-
combe et al., 1980; Taylor, Scheppele, & Stinchcombe, 1979; Tyler & Weber,
1982). On the other hand, a few studies have shown that concern about crime as
a social issue is associated with support for capital punishment, if only weakly
(Stinchcombe et al., 1980). If there is any one emotion that mediates between crime
Figure 7-4. Support for the death penalty, and crime and homicide rates.
Percentage of the population supporting the death penalty is represented in the scale on the
left; see footnote 1 for data sources. The scale on the right axis represents the annual number
of homicides per 100,000 inhabitants and the scale on the extreme right represents the annual
number of violent crimes per 100,000 inhabitants; the data for the corresponding lines are
from U.S. Department of Justice (1957-1990).
and support for the death penalty, it is probably frustration rather than fear. Year
after year we live with high crime rates, we see graphic coverage of violence, we
hear politicians promise to win the war against violence, against gangs, against
drugs, against crime—but nothing changes. It is not hard to understand why many
people support capital punishment even though they believe it does not deter crime
and is not fair. The death penalty is concrete, it is forceful, and it is final (which
nothing else seems to be); it is something, and being for it means that you insist
that something be done.
In the 1970s and 1980s, most research on capital punishment in the United States
was addressed to constitutional issues that were pending in the Supreme Court.
This explains the interest in deterrence in the early 1970s: the constitutional sig-
nificance of the deterrent effect of the death penalty was left open by the Furman
decision in 1972. In 1976, however, in Gregg v. Georgia, the Court disposed of
that issue by setting it aside, and interest in the topic diminished. Similarly, schol-
arly interest in death qualification was driven by the litigation leading up to the
Supreme Court's definitive rejection of social science research in Lockhart v.
McCree (1986), and interest in racial discrimination in capital punishment peaked
in preparation for the Court's rejection of that claim in McCleskey v. Kemp (1987).
To some extent, the same is true of research on attitudes toward capital punishment.
Several of the best studies conducted in the 1970s were addressed to Justice Mar-
shall's hypothesis in Furman that public support of the death penalty was caused
by public ignorance, and several other studies since have also attempted to explain
public attitudes in terms of the justifications for capital punishment that are de-
scribed in Furman and Gregg: deterrence, retribution, incapacitation.
But the arena has shifted. On the one hand, the Supreme Court has made it
plain that it will do little to regulate the use of the death penalty, let alone abolish
it. On the other hand, the death penalty has become an increasingly prominent issue
in electoral politics, and in that sphere the salient issues may be quite different.
The best example by far is the Bush-Dukakis presidential race in 1988.
During the Carter presidency, from 1976 to 1980, the homicide and violent
crime rates both rose sharply (see Figure 7-4). President Carter supported the death
penalty, but only in very limited circumstances; Governor Reagan—his opponent
for reelection in 1980—was strongly for it. Most Americans, however, probably
never knew this since "crime" was not an issue in that election. Four years later,
when President Reagan ran against Walter Mondale, support for the death penalty
had risen to about current levels. Mondale was against capital punishment under
all circumstances, but again the issue barely surfaced. The 1988 presidential cam-
paign started out the same way. In a national poll in May, respondents were asked
which candidate "comes closer to your way of thinking" on the death penalty;
18% chose Dukakis, 21% chose Bush, and 61% said there was no difference or
had no opinion (Gallup, 5/88). We can only conclude that Dukakis's position was
not yet well known. In July, 15% said Dukakis had "the best policy on the death
penalty," 19% said Bush did, 14% were unsure, and nearly half—49%—had not
heard enough to say (LA. Times, 7/88). That did not last. In October, 71% of a
national sample correctly chose Dukakis as the candidate who opposed the death
penalty (12% chose Bush; Gallup, 10/88), and 63% of another national sample
agreed that Dukakis "is too soft on law enforcement because he is against the
death penalty and because he let a dangerous murderer go on furlough in Massa-
chusetts, who then committed rape" (Harris, 10/88). By early November, respon-
dents picked Bush over Dukakis as the candidate who would "do a better job of
requiring the death penalty for crimes involving murder" by 61% to 24% (Yan-
kelovitch, 11/88). After the election, 57% of Bush voters and 38% of Dukakis
voters said the death penalty was "very important" to them in deciding who to
vote for (Gallup, 11/88).
What happened between May and October is no secret. Starting in August, and
accelerating in September after the national conventions were over, the Bush cam-
paign drummed home the theme that is captured succinctly in the Harris poll ques-
tion reproduced above: Dukakis is soft on crime because he is against the death
penalty, and because he is responsible for the furlough of Willie Horton, the "dan-
gerous murderer," who immediately committed a vicious rape. The attention this
issue received seems to have created a short-term spike in general support for
capital punishment. In April 1988, the GSS measured support at 71%. In the heat
of the campaign, two Gallup polls, in September and in October of 1988, both
found 79% support (an all-time record for "standard" death penalty questions),
and a CES/N.Y. Times poll in October registered 78% support. A second CBS/AT.Y.
Times poll taken two months after the election, in January 1989, was back at 71%
support, and the 1989 GSS, in April of that year, found 74% in favor of capital
punishment.
There are two major lessons to be learned from the Willie Horton campaign.
The first is that (for now at least) a candidate for president must support the death
penalty. Governor Clinton made his support clear by presiding over two executions
in Arkansas during the 1992 presidential campaign. As a result, the issue never
surfaced in the presidential debates, in Republican campaign ads, or for that matter,
in the national opinion polls—and Clinton won. Criminal justice in the United
States is primarily a state and local function, and the federal death penalty in
particular is a miniscule part of the nation's capital punishment system. Nonethe-
less, it may be a long time before anyone who opposes the death penalty is con-
sidered eligible for a major party nomination. The death penalty was not always
so powerful a political issue. In 1978 Governor Jerry Brown, a life-long opponent
of capital punishment, won reelection in California on the same ballot on which
72% of the electorate voted for a death penalty referendum, despite the fact that
he had vetoed death penalty legislation just the year before (Poulos, 1990). By
1990, the California Democratic gubernatorial primary seemed to have become a
contest over which candidate could be counted on to put more people to death
(Gross, 1993).
The second lesson is that capital punishment, like violence and crime in general,
is racially charged. It is no coincidence that Willie Horton is Black, or that the
Bush campaign did everything humanly possible to make sure that every American
voter got to see his picture.
Some Future Directions

Attitudes about capital punishment cannot be explained once and for all. Their
meaning changes as the political climate changes, as the world changes, and as the
media change people's perceptions of the world. New avenues of research are
suggested.
The Willie Horton episode epitomizes the importance of studying racial factors.
To what extent do attitudes toward the death penalty draw strength from the in-
creasing association of race and crime in White people's minds? Not entirely, to
be sure: the most horrifying criminals—Dahmer, Gacy, Bundy—are White, but
these are the crazies, separate from people's perceptions of routine out-of-control
violence in our cities. The relations between attitudes toward Blacks, crime, and
the death penalty have not been explored in any depth. A second, equally inter-
esting and even more neglected topic is Black Americans' attitudes toward capital
punishment. Always more opposed than Whites, always more conscious of its dis-
criminatory application, Blacks nonetheless are now more likely to favor the death
penalty than to oppose it. It is very unlikely that the dynamics of Black attitudes
are the same as those of the Whites, but there is no research on the topic.
Bowers' (1993) finding that people prefer guaranteed life imprisonment to the
death penalty also raises new questions. In his research, the motives of incapac-
itation and retribution are inextricably confounded. If people were satisfied that a
murderer could never commit another crime, would that be enough, or must he
also suffer? What would people say if asked, "Would you rather Willie Horton
was sentenced for life to a pleasant but utterly secure prison in Tahiti, with no
possibility of ever returning to society, or would you rather he was sentenced to

a vicious overcrowded maximum security prison for 30 years?" We have not
moved far in untangling utilitarian and emotional bases for death penalty atti-
tudes.
People's feelings about the death penalty are intense, yet we still have done
very little to explore the underlying emotions. Research suggests that fear is not
the driving emotion. Future research should focus on other emotions, particularly
frustration and anger. Anger is the most positive of the negative emotions, be-
cause it is the only one that confers a sense of power (Ellsworth & Smith, 1988;
Roseman, 1984). When politicians argue, angrily, for the death penalty, they may
communicate that they are in control, and at the same time arouse a satisfying
sense of outrage and power in the voter. This is, of course speculation; the emo-
tional dynamics of death penalty attitudes may be quite different. But there is no
doubt that emotions play a role, and so far there has been little effort to under-
stand that role.
Notes
1. The time line displayed in Figure 7-1 is based on data from polls by the Gallup
organization for 1936-71 and for 1981, and on data from the NORC's General Social Sur-
veys (GSS) for 1972-78, for 1980, and for 1982-91. These choices reflect competing con-
siderations. The General Social Survey is the best periodic national opinion poll available,
but Gallup has the longest history of conducting national surveys that include questions on
capital punishment. Therefore, we have used GSS data when possible, and Gallup data
otherwise. These are not, of course, the only national polls on general attitudes toward the
death penalty. A computerized data base that is publicly available from the Roper Center
for Public Opinion Research at the University of Connecticut included 90 such surveys as
of July 1993. The Appendix includes a list of all these surveys, the text of the questions
asked, and the proportions of respondents giving each coded answer. Unless otherwise at-
tributed, the polls we refer to in the text are taken from the Roper data base, which can be
accessed through LEXIS or WESTLAW, and will be referred to simply by survey organi-
zation and the month and year in which the survey was completed (e.g., "Gallup, 10/74").
In general, we focus on national surveys, and refer to local and regional studies to the extent
that they cover ground not covered by the national polls.
2. Two limitations on the scope of this article are appropriate at this point. We do not
discuss the issue of death penalty attitudes and jury selection in capital cases, commonly
known as "death qualification" (see Ellsworth, 1988), and we do not discuss the personality
correlates of death penalty attitudes.
3. Ellsworth and Ross (1983) also included the item, "In several cases people executed
for murder in the United States were later proven innocent." Supporters of capital punish-
ment were less likely than opponents to agree with this statement, 46% to 66%, and more
likely to reject it, 23% to 10%. Ellsworth and Ross, in keeping with the accepted wisdom
of the time, interpreted the claim as false, and agreement with it as error. More recent
research, however, suggests that several people executed for murder in the United States
were indeed later proven innocent by reliable means (e.g., a death bed confession of the
true criminal) if not in formal judicial proceedings (Radelet, Bedau, & Putnam, 1992).
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8
Sentencing for Life: Americans Embrace

Alternatives to the Death Penalty
RICHARD C. DIETER
Contrary to the conventional wisdom that Americans wholeheartedly support the

death penalty, the latest national opinion poll released in conjunction with this
report shows that more people in this country would prefer alternative sentences
that guarantee both protection and punishment over the death penalty. Death pen-
alty support becomes a minority opinion when the public is presented with a variety
of alternative sentences. Most Americans, however, are unaware that the length of
imprisonment embodied in these alternatives is now the norm almost everywhere
in the country....
Public Opinion and the Death Penalty
In 1966, more Americans opposed the death penalty than favored it.1 Executions
were halted in 1967 and did not resume for 10 years when support for the death
penalty had grown. Today, a new phenomenon is emerging from the polls. Support
for the death penalty drops precisely to the same low percentage as in 1966 when
people are given the choice of stringent alternative sentences.
In March of this year, the polling firms of Greenberg/Lake and the Tarrance
Group conducted a national survey of people's opinions about the death penalty.
This poll revealed an increasing trend, first detected in a series of state polls on
this issue, that Americans would favor certain alternative sentences over the death
penalty. Although a majority of those interviewed said they favored capital pun-
ishment abstractly, that support is reversed when the sentence of life without parole,
From a report by the Death Penalty Information Center, Richard C. Dieter, executive director, Wash-
ington, D.C., April 1993. Some text, tables, figures, and references have been deleted, and the remaining
references renumbered. Reprinted by permission of the author.
The latest poll results cited in this report are based on a nationwide telephone survey of 1,000
registered voters conducted between February 28 and March 1, 1993, by Greenberg/Lake and the
Tarrance Group. The sample was distributed based upon voter turnout in the last three presidential
elections. A sample of this type is likely to yield a margin of error of +7—3.1%.
116
Americans Embrace Alternatives to the Death Penalty 117
coupled with a requirement of restitution, is offered as an alternative. Forty-four

percent favor that alternative, while only 41% selected the death penalty. Even the
choice of a sentence which guaranteed restitution and no release for at least 25
years caused death penalty support to drop by 33%.
These results indicate a strong desire on the part of the public for protection from
those who have committed society's worst crimes. There is also a preference for con-
necting punishment with restitution to those who have been hurt by crime. Support
for the death penalty drops below 50% with a range of alternative sentences, espe-
cially those including restitution. Compared to the 77% who favor the death penalty
in the abstract, support drops by 21% when a sentence of life with no parole for 25
years is considered; if a requirement of restitution is added to that sentence, support
drops by 33%. And the sentence of life without parole plus restitution causes a sup-
port drop of 36% and relegates capital punishment to a minority position....
Doubts About the Death Penalty

Most people express doubts about the death penalty when presented with some of the
problems which have plagued this ultimate punishment for years. Forty-eight percent
responded that the issue of racism in the application of capital punishment raised
some or serious doubts about the death penalty. The perception of racial injustice
within the criminal justice system, symbolized by the image of Rodney King in Los
Angeles, is reinforced by the fact that Blacks are represented on death row three and
half times their proportion in the population as a whole. And defendants who kill a
white person in America are many times more likely to get the death penalty than
those who kill a black person.2 It is not surprising that almost three-fourths of Blacks
believe that a black person is more likely than a white person to receive the death pen-
alty for the same crime.3 As these facts about capital punishment become more
widely known, the enthusiasm for the death penalty may continue to wane.
Americans also expressed doubts about the death penalty after hearing infor-
mation about the costs of the death penalty and the absence of any unique deterrent
effect. The strongest doubts, however, were raised by the prospect that innocent
people could be executed. Fifty-eight percent of those polled said the question of
innocence raised doubts in them about the death penalty....
Results from State Polls
Although the results from this latest poll may be surprising to those who believe
that capital punishment has wide and unwavering support, they are consistent with
a series of state polls which have explored some of the same issues over the past
five years. These polls repeatedly showed that when people were presented with
alternatives to the death penalty, their support for the death penalty dropped dra-
matically. Polls conducted in recent years in California, Florida, Georgia, Kentucky,
Minnesota, Nebraska, New York, Oklahoma, Virginia and West Virginia all con-
cluded that people prefer various alternative sentences to the death penalty.4
Another interesting finding reported consistently in the state polls, and confirmed
by the national poll, is that death penalty support drops more with an alternative
sentence of no parole for 25 years than with a sentence mandating absolutely no
parole, provided that the lesser sentence is combined with the requirement of res-
titution.5 This result challenges the notion that people automatically favor the har-
shest of all possible sentences, such as the death penalty or life with no parole.
Rather, people support reasonable alternatives which attempt to restore equilibrium
and justice where it has been fractured in society....
Moreover, the support for alternatives to the death penalty appears to be grow-
ing. In a national poll in 1986, Gallup reported a 19% drop in support for the death
penalty when life without parole was offered as an alternative.6 The same question
produced a 23% drop in 1991.7 Now, in 1993, support for the death penalty dropped
28% when this same alternative was offered in the Greenberg/Lake poll. Similarly,
a state poll conducted in New York in 1989 revealed that 62% of the people would
prefer a sentence of life without parole plus mandatory restitution rather than the
death penalty. In 1991, the same question was asked and 73% supported this al-
ternative.8 . . . These and similar results from other states show the shallowness in
the support for capital punishment. People are frustrated and frightened about vi-
olent crime. If they are offered no alternatives which reasonably meet their concerns
for protection and punishment, then the death penalty seems attractive.
Jurors, too, look for alternatives. As many prosecutors who have brought "sure
fire" death cases to juries know, there is often a reluctance by jurors to actually
impose the death sentence on guilty murderers.9 Jurors faced with making life and
death decisions repeatedly inquire about the true meaning of a "life sentence,"
apparently hoping that this sentence will provide them with an acceptable alter-
native to sentencing someone to death.10 When they are told that parole eligibility
will not be explained, they incorrectly assume that the defendant will be out again
in seven years. Faced with that alternative, jurors often choose death....
The Trend Toward Longer Incarceration
The development of prison sentences in which parole is restricted either for a

substantial number of years or forever is a growing trend among states today. As
a response to violent murders, almost every state, as well as the federal government,
now uses a lengthy guaranteed minimum sentence before parole can even be con-
sidered. (See Figure 8-1) The perception that a murderer convicted of a capital
crime will be back on the streets hi seven years if not given the death penalty is
totally inaccurate....
Effectiveness of Alternative Sentences
People are frightened by press accounts of parole consideration for such notorious
criminals as Charles Manson and Sirhan Sirhan. No doubt, people believe that if
Missouri Rhode Island*

Arkansas Illinois Montana South Dakota
California towa* Nebraska Utah
Colorado Louisiana Nevada Vermont*
Connecticut Maine* New Hampshire Washington
Delaware Maryland Oklahoma West Virginia*
District of Cot.* ^ Massachusetts* Oregon Wyoming
Hawaii* Michigan* Pennsylvania
Figure 8-1. Life without parole states.
these criminals are eligible for parole, anyone would be. But neither of these men
was sentenced under a life without parole scheme, since that penalty had not been
enacted when they had committed their crimes. The fact that these and similar
cases receive consideration for parole, even though denied, tends to obscure the
fact that today such offenders would not even be eligible for parole. In every state,
the myth that if people are not given the death penalty they will be released in
seven years is simply not true.
People are also disturbed by reports of prisoners who actually are released after
a relatively short time, some of whom commit additional crimes. In Texas, for
example, there is much confusion about sentencing. Prisoners, on the whole, are
only serving 20% of their sentences and recidivism is a serious problem.11 Typi-
cally, even those with a life sentence have been getting out in less than six years,
partly due to the overcrowding in Texas' prisons.12 What is not widely known,
however, is that for those convicted of capital murder, the reality is now quite
different: a life sentence for them means they would not even be eligible for parole
for thirty-five years. (See Figure 8-2) However, Texas law forbids either side from
informing the jury about the true meaning of a life sentence in a capital case, and
so death sentences are being returned under a gross misperception. Jurors, and the
public in general, mistakenly believe they must choose between releasing a violent
murderer in six years or imposing the death penalty, even though the reality is
quite different.
States that have used the sentence of life without parole say it works as prom-
ised. California has had a sentence of life without parole for over twenty-five years
and not one person sentenced under this law has been released from prison.13 In
Alabama, U.S. Court of Appeals Judge Edward Carnes, who headed the state's
capital punishment division as assistant attorney general for many years, said that
"life without parole in Alabama means just that—no parole, no commutation, no
way out until the day you die, period." 14 ...
Most of the states without the death penalty now utilize a sentence of life without
parole for their worst offenders. Michigan, for example, has had a mandatory life
law for first degree murder at least since 1931 For the past decade, the governor
Alaska* 33 yr Minnesota* 30 yr Ohio 20 yr

Arizona 25 yr New Jersey 30 yr S. Carolina 30 yr
Roridaiiyr s is&^ fiasco 3$ yr T$wifc$$$*2$yr
Indiana* 30 yr New York* 25 yr Texas 35 yr
Kansas* 40 yr . N, Carolina 20 yr Virginia* 21 yr
Kentucky 25 yr N. Dakota* 30 yr
Figure 8-2. Restricted parole: years before parole eligibility under available sentences for
1st degree murder convictions.
has averaged only one commutation per year of those sentenced to life for first
degree murder. The time served for those few who were commuted between 1983
and 1990 averaged 27 years.15 In the District of Columbia, the voters over-
whelmingly rejected the death penalty shortly after the city council passed legis-
lation allowing for a sentence of life without parole for first degree murder....
Commutation of Sentence
For those who would opt for a sentence under which prisoners could never be
released, the theoretical possibility of executive clemency may appear to be a prob-
lem. In most states, either the governor or an appropriate board has the power to
commute sentences.16 Unless restricted by law, such a process could result in the
reduction of a life without parole sentence to a simple life sentence where parole
is possible.
In reality, however, this is a very remote possibility. Governors have the same
power to grant clemency in death sentences but rarely do. On the average, there
has only been 1 such commutation in 20 years for each state with the death pen-
alty.17 Presumably, if the same defendants had been given life without parole sen-
tences, governors would have had even less incentive to commute them since the
possibility of a mistaken execution would no longer be a motivation. This is borne
out in states like Michigan, California and South Dakota which have had a life
without parole sentence for some time and where commutations of those convicted
of first degree murder are exceedingly rare or nonexistent.18
Juror Awareness of Alternative Sentencing
In America, juries are the voice of the people. As with the public at large, those
who have served as jurors often prefer alternative sentences to the death penalty.
A 1992 survey of nearly 800 jurors revealed that only 41% supported the death
penalty if alternatives like life without parole were offered.19 But just as the public
is unaware of the fundamental changes in U.S. sentencing laws which have led to
longer sentences, so, too, those with the responsibility for considering death sen-
tences are without the correct information. Jurors in capital cases are particularly
troubled because they believe they must choose between sentencing someone to
death or allowing them to be released in a relatively short time. As the late Georgia
Supreme Court Judge Charles Weltner said, ' 'Everybody believes that a person
sentenced to life for murder will be walking the streets in seven years." He went
on to predict that the option of 20 to 25 years parole ineligibility "would lower
the number of death penalties that are given."20
The only problem with this prediction is that Georgia law (and the law of many
other states) forbids the judge from explaining anything to the jury about parole
possibilities, even if the judge receives a direct question from the panel while they
are deliberating on a defendant's life or death sentence. In 23 of the 29 states which
utilize sentencing by the jury in capital cases, there is an absolute prohibition
against any evidence or argument on parole.21 As a result, jurors are left to then-
own misperceptions....
A study by the National Legal Research Group demonstrated the danger of
uninformed jurors. The study found that prospective jurors in a sample Virginia
county:
• Believed that a capital defendant sentenced to life imprisonment will likely

serve only ten years in prison;
• Believed that the length of time a capital defendant will actually serve when
sentenced to life imprisonment is important to the penalty determination;
• Would disregard a judge's instruction not to consider parole when sentencing
a capital defendant; and
• Would be influenced significantly in their sentencing decisions by information
about Virginia's mandatory minimum sentence of 25 years for capital defen-
dants.22
From this and similar studies in other states,23 it is clear that many jurors are
sentencing people to death because they either lack adequate alternatives or because
they are unaware that such alternatives exist.... Even when a state has incorpo-
rated a life without parole option into its choice of sentences, the jurors are likely
to believe that the defendant will still be released and, therefore, are more likely
to return a death verdict. In a survey of 250 potential jurors in Louisiana, an
overwhelming 92% of those polled interpreted a "life sentence without the benefit
of probation, parole or suspension of sentence" as meaning that the individual
would still be eligible for release in a number of years.24
Politicians often add to these inaccurate perceptions when they use the death
penalty to bolster their campaigns. For example, while running for governor of
California as a pro-death penalty candidate, Dianne Feinstein claimed: "You can't
expect somebody to be deterred from committing murder if they know they will
only serve four to five years."25 What she neglected to say is that for those who
face the death penalty, the only alternative sentence in California is life impris-
onment with no possibility of parole. It is not surprising, then, that 64% of Cali-
fornians erroneously believe that those sentenced under life without parole would
nevertheless be released.26 Interestingly, politicians mistakenly believe that their
constituents strongly prefer the death penalty over its alternatives. In New York,
for example, 70% of the legislators polled thought their constituents would prefer
the death penalty over a variety of alternatives. In fact, over 70% of the people
would choose the alternative of life without parole plus restitution.27
This research implies that a sentence which eliminates parole for a substantial
period, especially if coupled with a restitution requirement, is an appropriate alter-
native. It is appropriate because people prefer such an alternative to capital pun-
ishment and it protects society as well as the death penalty. Under the present
system people are being sentenced to death under the erroneous assumption that,
otherwise, the prisoner would be released early. To the extent that jurors have been
choosing the death sentence in past cases based on this assumption, the executions
which resulted are tragic mistakes.
The Effects of a Life Sentence
The existence of a stringent life sentence can either partially or completely elimi-
nate the imagined need for the death penalty. In some states, a life without parole
sentence is used as an option when the death penalty is not selected; in other states,
like Michigan and Massachusetts, it exists as a complete replacement to capital
punishment. In Maryland, for example, the state added the sentence of life without
parole in 1987 as a choice for the jury in capital cases. Jurors are specifically
instructed that they can choose a sentence of life without parole instead of the
death penalty. In the five years since then, only eight new defendants have been
added to the state's death row. A similar reduction in death sentences has resulted
since Oklahoma introduced life without parole in 1988. That year, Oklahoma sen-
tenced 18 people to death. Last year, there were only five death sentences.28 In
contrast, Florida, which does not have life without parole, added 45 people to its
death row in 1991.29
Sentences with significant minimum terms can also provide the public with the
protection from repeat offenders that they want. An inmate released at the age of
55 or 60 years old is statistically far less likely to engage in crime than someone
in their late 20s. Violent crime arrest rates peak at age 18 and then gradually decline
to almost zero at age 60 and over.30 As Louisiana's district attorney, Harry Connick,
Sr., said: "When a guy gets to be 60, he's not gonna rip and run a lot. Not like
he used to."31 In addition, convicted murderers are among the least likely offenders
to repeat their crime, even if released.... 32
Prisoners Serving Life
Inside prison, a number of wardens report that those serving life sentences are the
best-behaved prisoners in their entire system. Leo Lalonde of the Michigan De-
partment of Corrections says of those serving life without parole sentences: "After
a few years, lifers become your better prisoners. They tend to adjust and just do
their time. They tend to be a calming influence on the younger kids, and we have
more problems with people serving short terms."33 Similarly, Alabama officials
noted that their life without parole inmates commit 50% fewer disciplinary offenses
per capita than all other types of inmates combined.34
Lifers can also make a significant contribution to society in the time given them.
For example, Craig Datesman at Graterford Prison in Pennsylvania coordinates a
Lifers project to help young people who have had some trouble with the law to go
straight. "We have taken a life and so we feel it's our responsibility to save a life
now," said Datesman.35 Executions, of course, cut off the possibility of any res-
titution to society or the family of the victim....
Restitution
Requiring those who have committed murder to make some monetary restitution
to the family of the victim is strongly supported by those choosing alternatives to
the death penalty. However, this sanction has not yet been widely employed by
states. Inmates generally receive little in the way of remuneration for work per-
formed in prison, usually barely enough for cigarettes or candy. A requkement of
restitution might mean raising the pay for prison work. Nevertheless, the various
opinion polls discussed above show that a requirement of restitution is one of the
most consistent demands by those preferring alternatives to the death penalty.
One measure of what might be a feasible form of restitution was included in a
New York opinion poll. New Yorkers were about evenly split in saying that
$150,000 in restitution to the family of the victim would be either "about right"
or "too little." The $150,000 restitution figure was derived from a requirement
that the prisoner work 40 hours per week, 50 weeks per year, over 25 years at $3
per hour.36 While the details of a restitution plan need to be worked out, polls show
that the concept is extremely important to many people and could be incorporated
further into the correctional system.
Many states are becoming more conscious of the needs of victims in their crim-
inal justice systems.37 Although funds for victim assistance are often provided di-
rectly from the state budget, some states are proposing restitution from the work
of prisoners themselves. A bill before the 1993 Nebraska legislature would abolish
the state's death penalty and instead impose a restitution requirement along with a
sentence of life without parole. And in Arkansas, California, Wisconsin, Idaho, and
Oregon, restitution to the victim's family can already be required of the offender
in homicide cases. 38 ...
The Politics of Death
In some states, politicians who favor the death penalty have resisted stiffer sen-
tences which eliminate parole because they fear that with real alternatives in place
there will be no more need for the death penalty. In New York, for example, the
politicians who have succeeded in derailing Gov. Cuomo's alternative of life with-
out parole are those who favor the death penalty. They do not hide their manipu-
lation of the issue: they would rather have criminals get out sooner than give up
the death penalty as a cheap symbol for being tough on crime. This is what Gov.
Cuomo called "the politics of death":
Life without parole is achievable immediately. The Legislature could enact it Monday.
I would sign the measure Tuesday. It would apply to crimes committed the next day.
In fact, the only thing preventing the next cop killer from spending every day of the
rest of his life in jail is the politics of death.... 39
In the end,... people will select politicians who conform to their opinions. For
years, the myth that Americans love the death penalty has fueled an expansion of
capital punishment and politicians' cry for more executions. But as the public's
preference for alternative sentences becomes more widely known, and as those
sentences become incorporated into law, the justifications for the death penalty will
have finally disappeared....
Notes
1. H. Zeisel & A. Gallup, Death Penalty Sentiment in the United States, 5 Journal of
Quantitative Criminology 285, 287 (1989).
2. See, e.g., Death Penalty Sentencing: Research Indicates Pattern of Racial Dispari-
ties, U.S. General Accounting Office, at 5 (1990).
3. A. Gallup & F. Newport, Death Penalty Support Remains Strong, But Most Feel
Unfairly Applied, The Gallup Poll News Service, June 26, 1991, at 4.
4. Information regarding the various polls is on file with the Death Penalty Information
Center.
5. W. Bowers & M. Vandiver, New Yorkers Want an Alternative to the Death Penalty,
Executive Summary, appendix summarizing other state polls (1991).
6. Zeisel & Gallup, note 1, at 290.
7. M. Leary, Counter-Trend to Death Penalty Emerging in California, Pacific News
Service, April 20-24, 1992, at 6 (reporting on California and national polls); see also Gallup
& Newport, note 3.
8. See Bowers & Vandiver, note 5, at 3, 13.
9. See, e.g., J. DeParle, Abstract Death Penalty Meets Real Execution, The New York
Times, June 30, 1991 (only 36% of those in a Justice Department survey voted for the death
penalty in simulated cases typical of those punishable by death).
10. See Lane, "Is There Life Without Parole?": A Capital Defendant's Right to a Mean-
ingful Alternative Sentence, 26 Loyola of Los Angeles Law Review 325, 390 (1993).
11. See Funding the Justice System: A Call to Action, the American Bar Association, at
54 (1992).
12. B. Denson, The Pros, Cons of Throwing Away Key, The Houston Post, July 14,
1991, at A-l.
13. Editorial, No Parole Means What It Says, San Francisco Chronicle, April 13, 1990
(citing a governor's study covering 1965 to 1990).
14. A. Malcolm, Capital Punishment Is Popular, But So Are Its Alternatives, The New
York Times, Sept. 10, 1989, at 4E.
15. See Michigan Department of Corrections Memoranda, Feb. 10, 1993 (Terry Mur-
phy), and April 11, 1991.
16. For example, all 36 States that authorize capital punishment have provisions for
clemency. Herrera v. Collins, No. 91-7328, slip opinion, at 23, n. 14 (Jan. 25, 1993).
17. M. Radelet, Clemency in Post-Furman Cases, manuscript (Nov. 29, 1991).
18. See note 15; also M. Cuomo, New York State Shouldn't Kill People, The New York
Times, June 17, 1989, and J. Kerkhove, Lifer?, The Messenger, July-Sept. 1992, at 19.
19. The View From the Jury Box, The National Law Journal, Feb. 22, 1993, at S2.
20. Savannah News-Press, Mar. 23, 1986, at 7C (quoted in Paduano & Smith, Deathly
Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty,
18 Columbia Human Rights Law Review 211, 213, n. 4 (1987)).
21. See Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in
the Imposition of the Death Penalty, 18 Columbia Human Rights Law Review 211, 216
(1987).
22. See W. Hood, Note: The Meaning of "Life" for Virginia Jurors and Its Effect on
Reliability in Capital Sentencing, 75 Virginia Law Review 1605, 1624-25 (1989).
23. See, e.g., Dayan, Mahler, & Widenhouse, Searching for an Impartial Sentencer
Through Jury Selection in Capital Trials, 23 Loyola of Los Angeles Law Review 151, 164-
176 (1989).
24. Cypress Research and Development Corporation, letter and report to the Loyola
Death Penalty Resource Center, Aug. 31, 1990.
25. The Sunday Times (London), Mar. 18, 1990 (quoted in G. Pierce & M. Radelet,
The Role and Consequences of the Death Penalty in American Politics, 18 N.Y.U. Review
of Law & Social Change 711, 725 (1990-91)).
26. Californians' Attitudes About the Death Penalty: Results of a Statewide Survey,
public opinion poll implemented by the Field Research Corporation in Dec., 1989.
27. See Bowers & Vandiver, note 5, at 3 & 9.
28. Death Verdicts Slip as No-Parole Grows, The Daily Oklahoman, Nov. 10, 1992.
29. Bureau of Justice Statistics, Capital Punishment 1991, at 8 (October, 1992).
30. See Bureau of Justice Statistics, Report to the Nation on Crime and Justice, Second
Edition, at 41^2 (March, 1988).
31. B. Denson, see note 12.
32. See Marquart & Sorenson, A National Study of the Furman—Commuted Inmates:
Assessing the Threat to Society from Capital Offenders, 23 Loyola of Los Angeles Law
Review 5, 23 (1989). In 1972, all the existing death sentences were overturned by the
Supreme Court's decision in Furman v. Georgia. In 1989, Marquart and Sorenson looked
at the cases of the 558 inmates whose death sentences were commuted to life imprisonment
by Furman. Of these, 243 of the inmates were released to the community. Only one of those
released committed a new homicide. Id. at 22-24
33. Katz, In Mich., Life Without Parole, Newsday, June 20, 1989, at 5. Thomas Cough-
lin, (former) Commissioner of the New York State Department of Correctional Services,
made similar statements about "true lifers" in New York. See Tabak & Lane, The Execution
of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty, 23 Loyola of Los
Angeles Law Review 59 (1989), at 124-25.
34. See J. Wright, Life-Without-Parole: An Alternative to Death or Not Much of a Life
at All?, 43 Vanderbilt Law Review 529 (1990), at 549.
35. S. Eisele, Lifers Help Youths Stay Out of Jail, Philadelphia Inquirer, Mar. 20, 1991,
at 1-B.
36. W. Bowers, M. Vandiver, and P. Dugan, A New Look at Public Opinion on Capital
Punishment: What Citizens and Legislators Prefer, 22 American Journal of Criminal Law
77 (1994).
37. See, e.g., B. Galaway, Restitution as Innovation or Unfilled Promise?, 52 Federal
Probation 3 (1988).
38. See Restitution: Eligibility/Types of Restitution Allowed (draft), National Victim Cen-
ter, Arlington, VA (1993).
39. M. Cuomo, New York State Shouldn't Kill People, The New York Times, June 17,
1989.
PART III
The Controversy over

Deterrence and Incapacitation
Crimes can be prevented by many different tactics and strategies, ranging from the
use of so-called target-hardening devices (double-locked doors, bullet-proof glass),
to incapacitating known or likely offenders (sedating the violent, incarcerating the
dangerous), to moral persuasion (convincing would-be offenders to respect the
rights of others). The death penalty plays a double role in prevention, but only one
of them involves deterrence—preventing crimes by making the would-be offender
believe it's a bad bargain. Crime is a bad bargain whenever the costs risked by
committing the crime exceed what one is willing to pay given the prospects of gain
from the crime. Of course, the threatened punishment works as a deterrent only if
the would-be offender believes the costs to him outweigh the benefits (discounted,
of course, by the risks). As the typical offender probably sees it, the chief costs at
risk are of two kinds: those that arise at or near the scene of the crime, in possible
interference from the prospective victim or from the police (a shoot-out or an
arrest); and those that arise subsequently, in court, jail, and prison. The latter are
remote, however, as well as conditional on arrest, prosecution, and conviction.
Without an arrest, no prosecution; without prosecution, no trial; without a trial (or
a plea bargain), no conviction; without a conviction, no sentence; and without a
sentence, no punishment—or at least nothing the law would recognize as punish-
ment. Thus, reducing crime by a strategy of deterrence is no easy matter. Fraught
with objective contingencies, it depends for its efficacy on communicating those
contingencies to those who have the opportunity, means, and motive to commit
crime.
But any strategy of crime reduction via deterrence is also fraught with subjective
contingencies. Perhaps the offender-about-to-be is confident he won't get caught
(no witnesses). Or he believes the crime won't be discovered or that—if caught—
he will get off lightly. Or perhaps he is so absorbed in the criminal act or so
preoccupied with avoiding arrest that he radically (and foolishly) discounts the
future possibility of being severely punished. Or perhaps his criminal acts are im-
pulsive or even the work of a madman. Counsels of rational deterrence can play
little or no role in the actions of such offenders, because those actions are governed
by false beliefs and misperceptions. No wonder that those who have most carefully
studied the concept and contingencies of effective general deterrence virtually de-
spair of controlling the bulk of society from the path of crime by such methods.
127
128 The Controversy over Deterrence and Incapacitation
Where the death penalty is concerned, the issue of deterrence—quite apart from
these contingencies—is controversial for several reasons of very different character.
The first are conceptual; discussions of the deterrent effect of the death penalty are
constantly subject to confusion on several different conceptual grounds. Two are
illustrated in a recent newspaper editorial by Sharon Keller, a former assistant
district attorney for Dallas County, Texas, and in 1994 elected to the Texas Court
of Criminal Appeals. During her election campaign she defended her support for
the death penalty as a deterrent by pointing to the way it incapacitates: "[I]t is
indisputable that capital punishment prevents at least the executed from committing
further crimes."1 Defense of the deterrent benefits of the death penalty in similar
language is constantly heard; unfortunately, it is doubly confused.
First, it fails to keep distinct deterrence and incapacitation. It is too rarely
noticed that the death penalty is unique in being the only punishment whose in-
fliction cannot have any deterrent effect on those who undergo it. The reason, of
course, is that you cannot be deterred if you cannot weigh—as the dead cannot—
the perceived risks you face in committing a crime. (Criminologists have inad-
vertantly added to this confusion by their distinction between "special" and
"general" deterrence, the former referring to the deterrent effect on the offender
of being punished and the latter referring to the deterrent effect of the offender's
punishment on everyone else—a distinction of no relevance to the death penalty.)
Now this is not a mere quibble over how to use the term "deterrence." It is
crucial to the entire debate over the role the death penalty can be expected to have
in crime prevention. Its actual and possible deterrent effects must be kept distinct
from its incapacitative effects; for one thing, the incapacitative effects are not in
dispute, but the deterrent effects are. Whatever may be said for killing offenders
in the name of crime prevention, the crimes (if any) these executions prevent,
thanks to deterrence, are entirely distinct from the crimes they prevent thanks to
incapacitation.
Another conceptual confusion is more subtle; it consists in the failure to keep
distinct incapacitation from prevention. Incapacitating a person from further crime
by death (or by life in prison, for that matter) does not necessarily prevent any
crime by that person. While it is true that a person adequately incapacitated cannot
commit further crimes, it does not follow that if he were not incapacitated, he
would recidivate; but if he wouldn't recidivate, he hasn't been prevented from
committing any crimes. Nor is his current punishment the only way to explain his
failure to recidivate. At most, there is a very rough correlation between incapaci-
tating a convicted offender and preventing further crimes from that source. Sup-
porters of the death penalty too easily assume that every execution "prevents" a
long list of felonies, when at most there is a high probability that it prevents some.
Even if, as the BJS reports (see chapter 11), about one in ten of those admitted
each year onto the nation's death rows had a prior conviction of criminal homicide,
that tells us only that we could have prevented those crimes if we had incapacitated
these offenders more effectively after their first homicide—a homicide that, for
various reasons, might not have been punishable by death. But now that such
The Controversy over Deterrence and Incapacitation 129
offenders are again in custody and under death sentence, we cannot do more than
guess how many further homicides—if any—will be prevented by executing them.
A third conceptual confusion surrounding the discussion of deterrence merges
when we consider the empirical evidence for and against the death penalty as a
deterrent. This confusion is, ironically enough, illustrated in the obituary published
by the New York Times on the occasion of the death of Thorsten Sellin, one of this
century's leading criminologists. The obituary reads in part: "Professor Sellin was
outspoken in his opposition to the death penalty and contended that comparisons
of statistical data from jurisdictions with and without the death penalty showed that
it was no deterrent to crime."2 This passage badly misrepresents Sellin's research;
the only way the conclusion—the death penalty was "no deterrent to crime"—
could be supported by the data would be if the jurisdictions without the death
penalty had no penalty whatever for murder. But of course they did punish murder,
not with death but with long-term imprisonment. The obituary writer failed (as
Sellin did not) to keep distinct two questions: Does the death penalty deter at all?
and Does the death penalty deter better than the alternative of imprisonment?
Sellin's research was focused entirely on the latter question. As he well knew,
these two issues are not of equal importance to the debate over the death penalty.
Most people believe that punishments deter and that the more severe the pun-
ishment, the better it deters. So abolitionists look like fools if they insist (as they
often do) that "the death penalty is no deterrent to murder" since this flies in the
face of what passes for common sense.3 Clearly, since abolitionists and retentionists
alike favor some sort of severe punishment for murderers, rapists, and other violent
offenders, the dispute between them turns entirely on whether capital punishment
is a better, more effective deterrent than some less severe alternative punishment.
Thus, empirical evidence that the death penalty deters is of no interest; abolitionists
might as well concede that, indeed, the death penalty probably does deter someone,
sometime, somewhere—just as retentionists must concede that the thousands of
criminal homicides each year in the 1990s in America's death penalty jurisdictions
prove that the death penalty is at best a far cry from a perfect deterrent. The only
empirical evidence that is relevant compares the deterrent (and, one should add,
the brutalizing) effect of death with some suitable alternative punishment. Reten-
tionists presumably believe that the death penalty deters better than the available
alternatives, which is what abolitionists typically deny.
Notice, too, that the controversy has to be narrowed still further. The issue is
not whether boiling in oil or crucifixion is a better deterrent than some form of
incarceration, because these savage forms of execution are simply ruled out (as
uncivilized and unconstitutional) from the start. Even if they were marvelously
superior as a deterrent to twenty years in prison, they are not (and, barring social
catastrophe, will not become) available under law; the relative deterrent efficacy
of barbaric and hence clearly unconstitutional punishments is not at issue. Nor is
the issue whether the death penalty might be a better deterrent if only it could be
carried out more swiftly, with less delay between sentence and execution. For
reasons discussed further in parts V and VI, considerable delay between arrest and
execution is all but unavoidable. The only issue is whether currently permissible
forms of execution of the sort now used in this country, with protection of the
rights of the accused as afforded by law, are a better deterrent than any form of
incarceration currently authorized by law.
The second major area of controversy raised by the issue of deterrence concerns
exactly what the empirical evidence does show. Does it show that, on balance, the
death penalty is a better deterrent than imprisonment? Or that it is no better? Do
executions have a counterdeterrent or brutalizing effect that matches or even ex-
ceeds their deterrent effect? Or is the evidence too inconclusive to permit drawing
any conclusions on these points, with the result that one either falls back on in-
tuition ("punishments deter, and the more severe the better the deterrence") or
dismisses the whole issue as a snare and a delusion?
Since 1974 William C. Bailey, a sociologist at Cleveland State University, has
been searching for statistically significant evidence of a deterrent effect of the death
penalty in America. Working with various collaborators, most recently Ruth D.
Peterson, a sociologist at Ohio State University, Bailey has published more than a
dozen studies. In none have signs of a deterrent effect of death sentences or of
actual executions been identified. Bailey and Peterson's most recent survey of the
whole issue, specially prepared for this volume, is reprinted here as chapter 9.
Stephen K. Layson, an economist at the University of North Carolina-Greens-
boro, is one of the few investigators who believes that multiple regression analysis
of aggregate national data does show a deterrent effect of the death penalty. His
research, he claims, shows that each execution in the United States during the years
1933 to 1969 resulted in fifteen fewer homicides (1986:312). To his credit, Layson
has not made exaggerated claims for the finality of his research. When giving
testimony before the House Subcommittee on the Judiciary, he said: "I don't regard
my evidence on the deterrent effect of capital punishment as conclusive" (1986:
313). He also conceded that "among experts in this area I am not sure my views
would be held by a majority. In fact, I doubt that they would" (1986:315). And,
indeed, Lay son's testimony was followed by the sharply critical testimony of James
Alan Fox, dean of the School of Criminal Justice at Northeastern University. (A
revision of Fox's testimony, written in collaboration with sociologist Michael L.
Radelet, was subsequently published; see Fox and Radelet 1989.) As their use of
statistics shows, the issues in dispute are highly technical and do not admit of easy
paraphrase or simplification. That has been reason enough for many opponents and
defenders of the death penalty to shift their attention away from the deterrence
controversy to other issues.
By way of summing up the state of the empirical evidence on the whole question
of deterrence, one can say without fear of significant contradiction that the vast
bulk of the research done on the allegedly superior deterrent effect of the death
penalty so far in this century in the United States fails to reveal any such effect,
and that the few research studies with results to the contrary are fraught with
unresolved difficulties. Accordingly, it is difficult to see how a convincing defense
of the death penalty in the United States today could rest solely or even primarily
on deterrent grounds.
Fighting terrorism with the death penalty attracts support in part because of the
belief in its superior deterrent effects. But such reasoning is put in doubt by most
actual terrorist attacks, such as the one in Saudi Arabia in June 1996, in which 19
American military personnel were killed when a giant bomb exploded outside their
quarters. As Philip Shenon of the New York Times reported, "the bombing was
almost certainly tied to the explosion last November (1995), in which five Amer-
icans and two Indians were killed" in Riyadha. Four Saudi confessed to the crime.
The American Embassy reported "it was warned that Americans would be harmed
if the executions were carried out." The Saudi government executed the prisoners
by beheading. Thus it appears that those executions in 1995 provided the incentive
for the bombing attack six months later in which 19 were murdered.4
The final area of controversy raised by the deterrence issue is neither conceptual
nor empirical but normative: Suppose the death penalty did deter, and that it de-
terred better than the available alternatives—what then? If executions (or the threat
thereof) deter two or three homicides per year, is that sufficient to warrant its use,
because even a small deterrent effect wipes out on balance whatever objections
there may be to executions? Or must the death penalty be a much more effective
deterrent than that if we are going to run the risk (as abolitionists believe we do)
of executing the innocent, brutalizing society generally, imposing unequal risks on
poor offenders, and spending vast sums on the whole jerry-built death penalty
system? At one extreme are those retentionists who argue that if the death penalty
prevents (via deterrence or incapacitation) even one homicide, it is worth it. At the
other extreme are those retentionists who do not rest their case on grounds of
superior deterrence at all; their support for the death penalty relies entirely on
considerations of retribution and related principles. Most retentionists fall unfeasily
somewhere between these extremes.
But it is not only retentionists who must face uncomfortable choices posed by
the evidence on deterrence. Most abolitionists today are convinced that there is no
evidence to show that the death penalty in the United States, however it has been
administered in this century, has had any measurable deterrent effect better than
the alternative of imprisonment. But suppose it were demonstrated fo the general
satisfaction of social scientists that the death penalty really is a superior deterrent
to imprisonment. Would abolitionists still favor the alternative of imprisonment?
Suppose the differential deterrent effect in favor of executions was really quite
considerable, as research by James A. Yunker (1976) purported to show. Would it
be reasonable to insist that the other costs of a policy of executions outweigh the
value of the many lives lost through choosing the less effective deterrent? When
facing this question, many abolitionists are inclined to agree with Professor Charles
L. Black Jr., of Yale Law School, who once observed that these questions are like
asking what mathematics would be like if pi were a rational number—they are
questions no rational person need answer because the questions make no sense. As
a riposte this perhaps cannot be beat, but it leaves unanswered the question of just
what role superior deterrence (or the lack thereof) ought to play in the overall
decision whether to retain or abolish the death penalty. How many abolitionists
would remain opposed to the death penalty even if they were convinced it was a
superior deterrent is uncertain; whether they would be justified in their opposition

is even more surely debatable.
If we shift our attention from the evidence on prevention by deterrence to the
evidence on prevention by incapacitation, it appears at first that the death penalty
has and always will have a clear edge over imprisonment so far as incapacitating
offenders is concerned. But it is not so clear that this edge constitutes much of an
advantage in crime prevention, since not every murderer executed constitutes one
or more murders prevented: Most convicted murderers do not murder again. As
explained a few paragraphs earlier, the distinction between total incapacitation (by
death) and crime prevention ought to be kept as clear and incontrovertible as the
distinction between deterrence and incapacitation.
A good example of confusion here can be found in the October 1994 issue of
Fortune magazine, in which we are told that "the death penalty clearly does pre-
vent some homicides" and that abolitionists refuse to acknowledge its superior
"incapacitating" effects. As relevant evidence, the writer cites the fact that "since
1982 more than five federal prison guards have been killed by inmates." The
implication is that if only the federal government had made murder of a prison
guard a capital offense, some or all of these five killings would not have occurred.
What we are not told is whether these "inmates" were convicted murderers who
might have been sentenced to death and executed; if they were not, then these
prison murders could not have been prevented by the incapacitating effects of a
prior execution. We are also not told whether five murders by federal prison in-
mates in a thirteen-year span (1982-94) is a disproportionately high ratio of mur-
ders to prisoners and to prison personnel when measured against the prison murders
in earlier years and against murders in state death penalty jurisdictions over the
same span of years. Until we know that, we have no evidence at all for believing
that the death penalty is a better deterrent for prison murder than a less severe
punishment.
The issue of murder by prisoners is but a special case of a more fundamental
empirical question concerning incapacitation and the death penalty: What is the
likely volume and rate of recidivist murder, that is, murder committed by those
convicted of but not executed for murder? It is useful to contrast the present state
of our knowledge on this question with what we knew in earlier years. At the time
of the 1964 edition of The Death Penalty in America, no information on the ques-
tion of recidivist murder was available. Not so by 1982; that edition reported ev-
idence of recidivism (based on data from the National Council on Crime and
Delinquency for the period 1965-75) showing that 0.3 percent of offenders—three
in a thousand—released after conviction for murder were later convicted of another
"willful homicide" (Bedau ed. 1982:177). Other data from other sources for the
years 1971 through 1975 (also reprinted in the 1982 edition) showed that 0.2 per-
cent of persons convicted of "willful homicide" were convicted of another such
crime within the first year of release (179).
Low though these figures are, it is not hard to find vivid and frightening ex-
amples of recidivist murder. Newspapers, all too frequently, it seems, tell us about
violent crimes committed by released or escaped prisoners with a record of prior

homicide:
• In New Hampshire, Ernest Therrien, aged thirty-eight, was charged with kill-
ing Helen Ring. He had been released ten months earlier from a mental hos-
pital, to which he had been committed for life in 1976 after having been found
insane during trial for the murder of his niece.5
• In New York, Arthur Shawcross, aged forty-four, had served nearly fifteen
years of a twenty-five-year term for murdering two children. Released in 1987,
he murdered ten women in the Rochester area within the next two years.6
• In Nebraska, Ronald Fort had served more than twelve years in prison after
a murder conviction. A month after his parole in July 1991, he was arrested
for another murder.7
• In New Jersey in May 1995, Robert Simon, aged forty-three, was charged
with the murder of a police officer. He had served part of a ten- to twenty-
year prison term in Pennsylvania for murder.8
Cases like these understandably give a bad name to releasing a murderer from
prison—no matter what the reason for release. Hardly less infuriating and inflam-
matory is the occasional show of bravado and contempt by a man under sentence
of death. Twenty years ago young Carl Isaacs, convicted in Georgia of murdering
a family of six—and guilty by his own admission of having murdered nine others—
announced from his death row prison cell, ' *I started killing when I was 14.... If
they want to stop me, they'd better strap me in that chair, because my ambition is
to kill 1,000 people.... As long as killers know all they'll get is life, they'll keep
right on killing—and that includes me."9 Whether we should believe Isaacs is, of
course, another matter. In any case, as of January 1995 he was still on Georgia's
death row awaiting execution.
These illustrative anecdotes to one side, what can we learn from systematic
research into recidivism of convicted murderers in general and death row prisoners
in particular? Thanks to the investigations by James W. Marquart and Jonathan R.
Sorensen, sociologists at Sam Houston State University in Texas, we have the
results of a natural experiment that bears directly on this subject. Marquart and
Sorensen examined the postresentencing behavior of all the hundreds under death
sentence in 1972 who were never executed, having been spared by the Furman
decision of that year. Did they murder again while in prison or after release? In
the research reprinted here as chapter 10, Marquart and Sorensen point out that if
all of the more than five hundred prisoners whose post-Furman careers they were
able to identify and trace had been executed, they would not have committed the
nearly four hundred subsequent felonies—only seven of them homicides (all but
one in prison)—of which they were convicted after 1972. But Marquart and Sor-
ensen also show that if all these offenders had been executed, four who were later
judged to be innocent would have been wrongfully executed, too. Thus, the trade-
off between murders prevented and innocents executed in this group was roughly
two to one. And if the results of this research are generalizable, they show that,
yes, executing all convicted murderers would almost certainly prevent some mur-
ders and many other felonies—but only at a terrible cost. Which cost it is better
for society to pay is not a question easily answered, and in any case it is only one
facet of the whole death penalty controversy.
In an effort to shed a bit more light on the problems of criminal homicide in
prison, recidivism among released murderers, and the alternative punishment to
death now favored by many abolitionists—life in prison without the possibility of
parole—I have provided a brief discussion on these topics in chapter 11.
Notes
1. Dallas Morning News, 25 September 1994, p. J6.
2. New York Times, 20 September 1994, p. D22.
3. This concession to common sense is not to be construed as a tacit acceptance of
Michael Davis's "common sense" argument for the superior deterrent efficacy of the death
penalty; see Davis 1981. His version of this argument claims that because persons would
rationally prefer a less severe to a more severe punishment (hence would prefer prison to
death), therefore such persons are more terrified by the death penalty and thus more deterred.
But this inference is unwarranted: From the fact that Jones prefers cloudy weather to rain,
it does not follow that he fears (or is more afraid of) rain. One's order of preferences is not
the inverse of one's order of fears. Even more to the point, it does not follow that because
one fears A more than one fears B, the fear of B is insufficient to deter one from whatever
it is that fear of A would also deter one from doing.
4. Senator Arlen Spector has presented a detailed argument in favor of the death penalty
for terrorism; see Spector 1991. The best critique of such a policy is still the article by
Thomas Thornton; see Thornton 1976.
5. Boston Globe, 15 August 1985, p. 26.
6. New York Times, 6 January 1990, p. 1.
7. Ibid., 17 September 1991, p. B6.
8. Ibid., 1 June 1995, p. B4. Additional recent cases include Reginald McFadden, par-
doned in Pennsylania in 1995 after a murder conviction and arrested in New York for rape
and murder a few months later. See N. Y. Times, 28 September 1995, p. B6.
9. National Enquirer, 18 February 1975, p. 2.
9
Murder, Capital Punishment, and

Deterrence: A Review of the Literature
WILLIAM C. BAILEY
RUTH D. PETERSON
Few, if any, issues have received more intense and long-term attention in crimi-
nology than the proper place, if any, of capital punishment in an enlightened crim-
inal justice system. Concerns about the death penalty were at the forefront of
attention of a number of the early founders of criminology (Beccaria in 1764;
Bentham in 1843), and the debate continues today as the United States maintains
the distinction of being the only Western nation to retain capital punishment for
common murder.
Even a brief sampling of the relevant literature demonstrates the tremendous
breadth of the death penalty debate. Many issues are of a moral or ethical nature,
and are therefore beyond the scope of empirical inquiry. However, some core issues
regarding the death penalty are factual in nature and have received considerable
attention by social scientists. These include questions regarding the general deter-
rent effect of capital punishment, how legal and extralegal factors such as race and
economic status influence judicial outcomes in murder cases, the nature of and
correlates of public opinion about the death penalty, and errors of justice and
wrongful convictions in capital cases. In these areas social scientists have made
important contributions to a better understanding of capital punishment.
Of these topics, the deterrence issue has received the most systematic attention
over the years. Here, the crucial question is whether capital punishment is more
effective than alternative sanctions, namely, long terms of imprisonment, in pre-
venting (deterring) murder. In other words, what is the marginal deterrent effect,
if any, achieved by capital punishment? This is the appropriate question since the
alternative sanctions for murder in the United States are death or imprisonment,
not death or no sanction at all.
In this chapter we review and assess the empirical literature regarding the mar-
ginal deterrent effect of capital punishment for murder. In light of the large body
of deterrence research, we note the following considerations in our review. First,
since this volume is focused on the death penalty in America, our analysis is
restricted to deterrence investigations conducted in the United States. (The reader
135
should consult works by Archer and Gartner [1984], Bowers [1988], Chandler
[1976], Fattah [1972] Jayewardene [1977], and Phillips [1980] for a sampling of
deterrence research for Canada and selected other countries.)
Second, we are concerned solely with deterrence studies in which murder is the
criterion variable. Historically, in the United States the death penalty has been
authorized for a variety of crimes, including kidnapping, treason, espionage, rape,
robbery, arson, and train wrecking (Bowers 1984). However, actual executions
largely have been restricted to convicted murderers. For the period 1864-1982,
Bowers (1984) reports that 96.5 percent of whites and 80.7 percent of nonwhites
who were executed under state authority were put to death for committing murder.
And, since the mid-1960s, no one in the United States has been executed for a
crime other than murder. In light of these statistics, death penalty investigators
have focused almost exclusively on the crime of murder. The exceptions are studies
by Bailey (1977) and Boyes and McPheters (1977) of the relationship between
states' execution practices and rates of forcible rape. These two analyses produced
no indication that capital punishment is more effective than imprisonment in pre-
venting rape.
Third, our review and assessment of the literature focuses on studies of capital
punishment and "general" rather than "special" deterrence (Andenaes 1974). The
concern is with how capital punishment practices influence would-be (potential)
homicide offenders, rather than assessing the relative merits of long terms of im-
prisonment versus executions in preventing convicted murderers from killing again.
Given the many costs associated with capital punishment, including wrongful con-
victions (Radelet, Bedau, and Putnam 1992) and the financial costs of capital trials
and their judicial aftermath (Costanzo and White 1994), the question of how much
more "cost-effective" the death penalty is than lengthy incarceration in preventing
murderers from killing again is an interesting issue. However, this question has not
received systematic empirical attention and therefore is not a concern here.
Fourth, although our specific focus is deterrence, we will also examine the find-
ings of studies of the "brutalization" effect of the death penalty. Brutalization
studies test the long-held hypothesis that capital punishment actually encourages
rather than discourages murder by setting a "savage example" for society to follow
(Beccaria 1963). As Bowers and Pierce (1980) point out, the brutalization argument
poses an identification process that is the opposite of that assumed by the deterrence
argument. The assumption underlying deterrence theory is that would-be-murderers
identify with the executed person. In contrast, the brutalization thesis assumes that
observers identify the person who is executed with someone who has offended
them greatly. By so doing, he or she may identify with the state as executioner
and thus justify and reinforce his or her desire for lethal vengeance (Bowers and
Pierce 1980:456).
Most studies of brutalization are virtually identical to deterrence analyses in
their methodology; they differ only in the direction of the expected relationship
between capital punishment and murder. Consequently, the overlapping bodies of
deterrence and brutalization literature can be reviewed and summarized as a single
body of work.
Murder, Capital Punishment, and Deterrence 137
Fifth, because of the large volume of work on deterrence and capital punishment,
our review of the literature for the United States will be selective rather than ex-
haustive. In selecting studies to present and summarize, we will provide a sampling
of the different methodological approaches and research designs that have been
employed by investigators. Also, although the literature is overwhelmingly negative
regarding the preventive effects of capital punishment, we are mindful that a few
investigators have reported what they interpret to be a significant deterrent effect
for capital punishment. Because of their contrasting findings, all but one of these
studies will be given specific attention in our review. We will not examine in detail
a study by Lay son (1985) that purports to identify a significant deterrent effect for
executions on the U.S. national murder rate.
Finally, we caution the reader that the present authors have been frequent con-
tributors to the deterrence literature. Thus our own work is assessed along with
that of our colleagues. We do our best to remain objective, pointing to the strengths
and weaknesses of all the studies, including our own.
Organizing the Literature
Deterrence theory contends that to be effective in preventing crime, criminal sanc-

tions must be severe enough to outweigh the pleasures (psychic and material gains)
to be derived from crime, administered with great certainty, administered promptly
so there is a clear cause-and-effect connection between crime and punishment in
the minds of would-be offenders, and made known to the public (Andenaes 1974;
Gibbs 1975; Zimring and Hawkins 1973). These properties of punishment interact
in impacting would-be offenders. To illustrate, although the death penalty consti-
tutes a very severe penalty, it cannot be expected to be an effective deterrent to
murder if its level of certainty is zero or very slight. Similarly, even if administered
with a high level of certainty, capital punishment will not be effective in discour-
aging crime if it is administered secretly. Rather, deterrence is a communication
theory, and it is the perceived severity, certainty, and celerity of punishment that
result from sanctioning practices that are predicted to influence offense rates (Gibbs
1975).
In the discussion that follows, we have organized deterrence and death penalty
studies according to their focus on one or more of these four dimensions of pun-
ishment—severity, certainty, celerity, and publicity. In addition, we will address
as separate topics deterrence investigations that have considered specific types of
murder—capital homicides.
Comparative Studies and the Severity Hypothesis

From early in this century through the 1960s the comparative methodology pro-
vided the most common approach to testing for the possible deterrent effect of the
death penalty. Investigators compared homicide rates for jurisdictions with (reten-
tionist states) and without (abolitionist states) capital punishment (Bye 1919; Savitz
1958; Sellin 1955, 1959, 1961, 1967, 1980; Sutherland 1925), or examined rates
for states before and after the abolition and/or reinstatement of the death penalty
(Bedau 1967; Schuessler 1952; Sellin 1955, 1959, 1967). In the former case, the
deterrence hypothesis is that murder rates should be higher in abolitionist states.
In the case of longitudinal comparisons, the deterrence thesis predicts that abolition
should be followed by an increase in murder rates, and reinstatement should result
in a decrease in killings. In both types of investigations, the punishment measure
of concern was the statutory provision or absence of the death penalty.
Over the decades, the findings from comparative studies were very consistent
and quite contrary to the deterrence thesis. For example, studies of changes in
murder rates before and after the abolition and/or reinstatement of capital punish-
ment revealed that states that abolished the death penalty did not experience unu-
sual increases in homicides. Rather, abolition and/or reintroduction of capital
punishment was sometimes followed by an increase in murders and sometimes not.
In addition, changes in the murder rates of states experiencing a change in the
provision for the death penalty paralleled almost exactly changes in homicides in
neighboring states where no statutory change had occurred. Also contrary to the
deterrence thesis, simple comparisons of retentionist and abolitionist jurisdictions
showed that the provision for the death penalty had no discernible effect on murder.
Indeed, such studies often showed an opposite pattern of higher murder rates for
death penalty states.
Sellin and others employing these methods recognized that abolitionist and re-
tentionist jurisdictions may differ in other respects that might influence murder
rates, for example, population composition, region, and socioeconomic conditions.
To control for how such factors may differentiate abolitionist and retentionist ju-
risdictions, and thereby distort simple comparative analyses of homicide rates for
the two types of states, researchers also compared murder rates for clusters of
contiguous, and presumably more similar, abolitionist and retentionist jurisdictions.
Findings for contiguous state comparisons for the first half of this century also
showed that in general murder rates tended to be lower for neighboring death
penalty jurisdictions.
This nondeterrence pattern holds for the contemporary period as well. To illus-
trate, Table 9-1 presents murder rates for six groupings of neighboring death pen-
alty and abolition states for the period 1977 through 1993. The figures indicate the
number of murders per 100,000 population for each jurisdiction. To illustrate, dur-
ing 1977 rates ranged from a low of 1 murder per 100,000 population in Vermont
to a high of 10 murders per 100,000 persons in Illinois. We selected the 1977-93
period because 1977 marks the year of the resumption of executions in the United
States after a ten-year moratorium, and 1993 is the most recent year for which
Federal Bureau of Investigation (FBI) figures for homicide (murder and nonnegli-
gent manslaughter) are available.
The data in Table 9-1 allow us to address three basic questions: (1) Are murder
rates significantly lower for neighboring states that provided for capital punishment
during the period?1 (2) Is there an indication of a significant increase in rates during
the years when some "retentionist" states were without the provision for capital
Table 9-1.
Murder Rates for Neighboring Death Penalty and Abolitionist States, 1977-93
State Abolition period 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993
Maine* 1977-93 2 3 3 3 3 2 2 2 2 2 3 3 3 2 1 2 2
Vermont* 1977-93 1 3 1 2 4 2 4 2 3 2 2 2 2 2 2 2 4
New Hampshire 3 1 2 3 3 2 2 1 2 2 3 2 3 2 4 2 2
Rhode Island* 1979-93 4 4 3 4 4 4 3 3 4 4 4 4 5 5 4 4 4
Massachusetts* 1QT7
iy/ /— 7ft
/o 3 4 4 4 4 4 4 4 4 4 3 4 4 4 4 4 4
1980-82
1984-93
Michigan* 1977-84 9 11 9 10 9 9 10 10 11 11 12 11 11 10 11 10 10
Ohio* 1978-80 8 7 8 8 7 6 6 5 5 6 6 5 6 6 7 7 6
Indiana 7 6 8 9 7 7 5 6 6 6 6 6 6 6 8 8 8
139 Wisconsin* 1977-93 3 3 3 3 3 3 3 3 3 3 4 3 4 5 5 4 4
Iowa* 1977-93 2 3 2 2 3 2 2 2 2 2 2 2 2 2 2 2 2
Illinois 10 10 11 11 11 9 10 9 8 9 8 9 8 8 11 11 11
North Dakota* 1977-93 1 1 2 1 2 1 2 1 1 1 2 2 1 1 1 2 2
South Dakota* 1977-78 2 2 2 1 2 3 2 2 2 4 2 3 1 2 2 1 3
Montana 5 5 4 4 3 4 2 4 6 3 4 3 3 5 3 3 3
Wyoming 5 7 9 6 6 9 6 3 4 5 2 3 4 5 3 4 3
West Virginia* 1977-93 6 7 7 7 6 5 5 4 4 6 5 5 7 6 6 6 7
Virginia 9 9 9 9 9 7 7 8 7 7 7 8 8 9 9 9 8
Oregon* 1977 5 5 4 5 4 5 4 5 5 7 6 5 5 4 5 5 5
1981-83
Washington 4 5 5 6 5 4 5 5 5 5 6 6 4 5 4 4 5
Idaho 6 5 5 3 4 3 4 3 2 3 3 4 3 3 2 4 3
*States without capital punishment for murder for the periods indicated. Death penalty status determined as of 31 December of the years indicated.
punishment (such as with Massachusetts, Ohio, South Dakota, and Oregon)? (3) Is
there evidence of a significant decrease in rates for the years following a state's
return to capital punishment? The answer to each of these questions appears to be
no. Across the six groupings of states there is no clear pattern of murder rates
being higher for death penalty jurisdictions. In some cases rates are higher for
abolitionist jurisdictions (e.g., Michigan), and in some cases the opposite is true
(e.g., Illinois). In addition, examining changes in homicide for individual states
over time, there is no indication of either an increase in murder during abolition
years or a decrease in rates following reinstatement of capital punishment. In brief,
then, early comparative analyses and recent comparative data do not support the
deterrence argument regarding capital punishment and homicide. The data leave
unchallenged Sellings (1967:138) early conclusion that "the presence of the death
penalty in law and practice has no discernible effect as a deterrent to murder."
The Certainty Hypothesis

As noted previously, fundamental to deterrence theory is the notion that to be
effective in preventing crime, sanctions must be administered with a high degree
of certainty. Neither simple nor contiguous state comparisons of homicide rates for
death penalty and abolitionist jurisdictions provide a means of addressing this ques-
tion. Rather, exploring this issue necessitates examining the relationship between
levels of actual execution and murder rates.
With the exception of a study by Schuessler (1952), the certainty hypothesis
did not receive systematic attention until the 1970s. Schuessler correlated average
execution rates (the rate of executions to criminal homicides) with homicide rates
for the period 1937 to 1941 for forty-one U.S. death penalty states. Contrary to
deterrence predictions, he observed only a slight negative relationship (r = —.26,
r2 = .067) between executions and homicides. As a check on the consistency of
this pattern, Schuessler examined execution and homicide rates for four groupings
of death penalty states divided according to the size of the homicide rate. This
analysis also showed that homicide rates do not consistently fall as the risk of
execution increases. These observations led Schuessler to conclude that "the death
penalty has little if anything to do with the relative occurrence of murder" (1952:
61).
More than two decades later Bailey (1975) examined for forty-one U.S. states
the relationship between the ratio of executions to homicides for five-year periods
leading up to 1967 and 1968 and (1) rates of murder and nonnegligent manslaughter
derived from the annual FBI Uniform Crime Reports, and (2) rates of prison ad-
mission for first-degree murder. The first-degree murder data were gathered from
a survey of state bureaus of correction for prison admissions for 1967 and 1968.
Like the Schuessler investigation, a correlation analysis provided no evidence of a
significant deterrent effect for the certainty of execution. Bailey found only slight
and nonsignificant negative relationships between executions and rates for total
criminal homicides (1967, r = —.166; 1968, r = —.039) and for first-degree mur-
der (1967, r = -.137; 1968 r = -.194).
The Ehrlich Analysis

Perhaps the most important work on the deterrent effect of the certainty of capital
punishment on homicide came from studies by Isaac Ehrlich in the mid-1970s
(Ehrlich 1973, 1975). Ehrlich challenged the common wisdom gained from com-
parative studies that the death penalty does not deter. He dismissed previous death
penalty research as simplistic and inadequate because investigators largely ignored
the certainty-of-execution hypothesis. Ehrlich also complained that previous studies
did not include criminal justice and sociodemographic control variables to guard
against spurious results for the death penalty factors. Ehrlich argued that previous
deterrence studies were fatally flawed due to these problems and that previous
investigators were simply wrong in concluding that capital punishment is not an
effective deterrent to murder.
Ehrlich sought to address the shortcomings of earlier work by conducting a
statistical analysis that did the following: explicitly recognized the fundamental
importance of the certainty hypothesis; considered multiple measures of the cer-
tainty of capital punishment; recognized the possible importance of the severity
and certainty of alternative sanctions (imprisonment) in deterring murder; and con-
sidered a variety of law enforcement and sociodemographic factors associated with
murder rates as formal control variables in examining the U.S. homicide rates for
various periods between 1933 and 1969.
Aggregating his data on a national and annual basis, Ehrlich found a significant
decline in executions over this period, as well as a general rise in homicide rates.
The observed trade-off between homicide rates and different measures of execution
certainty varied somewhat, but the pattern was convincing for Ehrlich. Based on
his analyses, Ehrlich reported that each execution that was performed during the
period may have prevented, on average, seven to eight murders.
The Ehrlich analysis brought to the forefront the complexity of the deterrence
and death penalty issue, and the need for a more sophisticated methodology than
found in earlier studies. Indeed, the Ehrlich paper stimulated a new round of de-
terrence and death penalty research in the 1970s and 1980s that addressed a number
of important but traditionally ignored questions about deterrence and capital pun-
ishment. As we detail in the following, we take very strong issue with the Ehrlich
analysis. However, we regard his efforts as probably the single most important
factor in the last twenty years in stimulating the research needed to provide a better
understanding of this important question.
Reactions to Ehrlich's Study

The reaction to Ehrlich's study was a series of replications of his national time-
series analysis (Bowers and Pierce 1975; Klein, Forst, and Filatov 1978; Layson
1985; Passell and Taylor 1977; Yunker 1976). With the exceptions of Layson
(1985) and Yunker (1976), these efforts did not support Ehrlich's claims. Rather,
scholars revealed a number of theoretical and technical problems with his analysis,
some of the most important of which are noted here. First, critics noted that such
time-series analyses are subject to very serious aggregation error/bias problems
when the unit of analysis is the entire nation, and when an obvious factor such as
dramatic changes in the percentage of the U.S. population that is subject to the
death penalty for murder is ignored as either a deterrence or a control variable.
The proportion of the U.S. population residing in retentionist/abolitionist jurisdic-
tions was far from uniform during the 1933-69 period. Ignoring this fact renders
extremely suspect national aggregate studies such as Ehrlich's. Problems of inter-
pretation also stem from the fact that Ehrlich aggregated his homicide and control
variables on a national level, thus also ignoring the tremendous variation in these
factors from state to state.
Second, critics noted that Ehrlich failed to differentiate between death penalty
and abolitionist jurisdictions in computing execution rates at the national level.
Rather, he treated all jurisdictions as retentionist in comparing the ratio of execu-
tions to arrests for murder, and the like. This is extremely misleading since the
probability of execution is zero in abolitionist jurisdictions.
Third, some took issue with Ehrlich for operationalizing his main independent
variable as execution risk and ignoring the legal status of the death penalty (Baldus
and Cole 1975). While measuring execution risk takes into account the use of the
death penalty (in retentionist states), Ehrlich's analysis ignores the policy issue of
deterrence and abolition (or reinstatement) of capital punishment on the state level.
Fourth, critics debated the relative merits of econometric modeling versus other
means of controlling for important etiological factors in attempting to isolate the
possible deterrent effect of capital punishment. With this approach there is the risk
that important variables might be overlooked or specified improperly (Baldus and
Cole 1975). If important predictor variables are excluded, or if irrelevant variables
are included in the model, the apparent precision in estimating the impact of given
variables (such as executions) on homicide rates will result in misleading conclu-
sions (Baldus and Cole 1975).
Finally, Ehrlich's findings of deterrence are not robust (Ehrlich 1973, 1975).
This is evident in two ways. On the one hand, some of the statistical models he
specified suggested a possible deterrent effect but some did not. Ehrlich chose to
emphasize certain models over others. However, there is no a priori theoretical
reason for viewing as superior the models that suggest a possible deterrent effect
compared with models that produced no indication of deterrence (Klein, Forst, and
Filatov 1978). In addition, Ehrlich's findings of deterrence are dependent upon the
time period being examined, 1933-69. When the annual time series ends in the
early to mid-1960s, any possible evidence of deterrence disappears. This raises the
obvious question: Why was the death penalty not a significant deterrent to murder
from 1933 through the mid-1960s although capital punishment was a significant
deterrent for the period 1933-69? What could have happened during the latter half
of the 1960s to so radically change the truth of the matter? In brief, then, the noted
difficulties render the results of the Ehrlich study highly suspect.
Building upon the Ehrlich Analysis
The Ehrlich study is a very important chapter in the history of deterrence and death
penalty research. Most importantly, his work inspired a renewed interest in the
subject that brought to an end what was essentially a moratorium on death penalty
investigations. These new efforts were aimed at addressing the many difficulties
associated with Ehrlich's studies. For example, to address aggregation problems
associated with a nationwide analysis, researchers examined time-series data for
individual states for various periods extending back to the turn of the century.
Among the jurisdictions examined were California (Bailey 1979c), Illinois (Decker
and Kohfeld 1984), New York (Bowers and Pierce 1980), North Carolina (Bailey
1979a), Ohio (Bailey 1979d), Oregon (Bailey 1979b), Utah (Bailey 1978), and
Washington, D.C. (Bailey 1984b). None of these analyses produced consistent ev-
idence of a deterrent effect for the certainty of capital punishment.
Also building upon Ehrlich, researchers (including Ehrlich himself) conducted
state-level cross-sectional analyses of the relationship between executions and mur-
der rates while controlling for various sociodemographic factors associated with
homicide. In some of these analyses, measures of the certainty of imprisonment
for murder and the length of prison sentences for murder were incorporated as
additional deterrence variables (Bailey 1975, 1977, 1980b, 1983; Ehrlich 1977;
Forst 1977; Passell 1975; Peterson and Bailey 1988). Ehrlich (1977) was the only
researcher among these to find evidence of a deterrent effect for executions. Be-
cause no other investigations observed a deterrence pattern, Ehrlich's work was
once again subject to scrutiny. And once again scholars found serious theoretical
and methodological difficulties with his analysis, rendering Ehrlich's cross-
sectional findings suspect as well (Barnett 1981; Beyleveld 1982; Brier and Fein-
berg 1980; Friedman 1979; McGahey 1980).
In sum, with the lonely exception of Ehrlich, whose work generally has been
seriously questioned if not totally discredited, death penalty researchers have found
virtually no support for the argument that the level of use of capital punishment
(certainty) influences U.S. murder rates. Importantly, the periods examined extend
back to the early part of this century, when rates of execution for murder were at
much higher levels than in recent decades. This suggests that contrary to the com-
plaints of some death penalty proponents (e.g., van den Haag and Conrad 1983),
a return to the "good old days" when there were more executions is not likely to
result in greater deterrence.
The Celerity of Capital Punishment

Proponents of deterrence have long argued that for legal sanctions to be effective
they must be administered swiftly (celerity). For example, Beccaria noted:
An immediate punishment is more useful; because the smaller the interval of time
between the punishment and the crime, the stronger and more lasting will be the
association of the two ideas of "crime" and punishment; so that they may be con-
sidered, one as the cause, and the other as the unavoidable and necessary effect....
Delaying the punishment serves only to separate these two ideas.... (1809:75-76,
emphasis added)
In a more recent discussion, Jeffery emphasized the importance of the celerity (and
certainty) of sanctions in accounting for the negative evidence for the death penalty:
The uncertainty of capital punishment is one major factor in the system. Another
factor is the time element. A consequence [the death penalty] must be applied im-
mediately if it is to be effective.... The lesson to be learned from capital punishment
is not that punishment does not deter, but that the improper and sloppy use of pun-
ishment does not deter or rehabilitate. (1965:299)
The celerity of executions is a generally neglected issue in the empirical liter-

ature on deterrence and capital punishment. Indeed, our search of the literature
produced only a single study (Bailey 1980a) of the celerity question. This is un-
fortunate. If celerity is important, then ignoring this factor may have biased the
findings for the severity (imprisonment versus execution) and certainty (execution
rates) of the death penalty reported by previous investigators (Black and Orsagh
1978).
Bailey (1980a) conducted a cross-state analysis examining the relationship be-
tween death penalty states' homicide rates and (1) the certainty of execution for
homicide, (2) the certainty and severity of imprisonment for homicide, and (3) the
celerity of the death penalty—the elapsed time between the sentencing and exe-
cution of convicted murderers. The analysis was confined to death penalty states
because the celerity of executions is not an issue in abolitionist jurisdictions. As
in previous investigations, sociodemographic factors were controlled to avoid spu-
rious results for the sanction variables. For each death penalty state, National Pris-
oners Statistics data were used to compute the average elapsed time between the
sentence of death and execution between 1956 and I960.2
Contrary to theoretical expectations, Bailey found no evidence that speedy ex-
ecutions discourage murder. At the bivariate level there was a near-zero relationship
(r = —.01) between 1960 murder rates and the average elapsed time between
sentencing and executions. This slight pattern persisted in the multivariate analysis.
Thus, Bailey's study provided no indication that the failure to confirm the severity
and certainty hypotheses for capital punishment was a result of failing to consider
the celerity of executions.
Analyses of Execution Publicity

Another fundamental premise of deterrence theory is that to prevent crime, the
threat and application of the law must be communicated to the public. Proponents
of deterrence theory have long contended that the publicity surrounding punishment
serves important educative, moralizing, normative validation, and coercive func-
tions (Andenaes 1974; Gibbs 1975, 1986). Applying this premise to capital pun-
ishment, high levels of execution publicity should result in lower homicide rates.
Research examining the effects of execution publicity dates back to the 1930s.
In the first such investigation, Dann (1935) examined the number of homicides for
the sixty-day periods before and after five highly publicized Philadelphia executions
in 1927, 1929, 1930, 1931, and 1932. He found an increase, not a decline, in
killings following each execution. Also contrary to deterrence predictions, exam-
ining four highly publicized death sentences in Philadelphia in 1944, 1946 (two),
and 1947, Savitz (1958) found no change in definite and possible capital homicides
during the eight-week periods before and after each event. These early execution
publicity studies are informative, but they are limited since they are confined to a
single location and involve limited time periods—and because neither attempts to
measure the amount of media attention devoted to executions/death sentences or
to link media coverage with changes in homicide rates.
In a more systematic analysis, King (1978) examined the impact of newspaper
coverage of executions on monthly homicides in South Carolina for the period
1951-62. (King's analysis was framed as a test of the brutalization rather than the
deterrence thesis.) Executions were categorized as either receiving or not receiving
coverage in the South Carolina State newspaper. This paper had the largest cir-
culation of any South Carolina newspaper during the 1951-62 period. Over the
twelve years, there were twenty months in which executions received coverage in
the State.
To test for a possible brutalization effect, the number of homicides for a news
coverage month was compared with the average number of homicides for the same
month for the years directly preceding and succeeding the year and month under
consideration. Contrary to the brutalization thesis, King did not find a significant
increase in killings during months when there was media coverage of executions.
Nor did he find a significant decline in killings during media coverage months. A
comparison of observed versus expected homicides for the media coverage months
showed an increase in killings in eleven instances, and a decline in killings in eight
months. The number of expected and observed killings was the same for one story
month.
Most research on execution publicity has focused on more recent periods. After
a nearly ten-year moratorium on capital punishment (1968-76), executions resumed
in the United States in January 1977. The first few executions after the moratorium
received considerable print and electronic media coverage. For example, the exe-
cution of Gary Gilmore in Utah on January 17, 1977, was front-page news across
the country and the lead story for the evening news for the three major television
networks.
McFarland (1983) examined whether the tremendous amount of news coverage
given the Gilmore execution and the three executions to follow (John Spinkelink
in Florida, 1979; Jesse Bishop in Nevada, 1979; and Steven Judy in Indiana, 1981)
produced a significant decline in U.S. homicides. He speculated that the ' 'media
frenzy" surrounding the Gilmore execution should have had a dramatic deterrent
effect, while the three later executions should have had a declining effect because
each successive execution received less and less media coverage.
Examining weekly health statistics for homicide for various periods leading up
to and following each of the four "celebrated" executions, McFarland found no
evidence of a significant downward (or upward) shift in weekly killings. The Gil-
more execution was followed by a decline in the level of U.S. weekly homicides
for two weeks following the execution, but homicides during the next few weeks
seemed to be unaffected. The dip in killings immediately following Gilmore's ex-
ecution suggests a possible short-term deterrent effect, but McFarland rejects this
interpretation. Rather, via a disaggregated regional analysis, he demonstrates that

the significant decline in killings following the Gilmore execution was confined to
parts of the country that experienced abnormally severe winter conditions during
that period. Of particular note, following the Gilmore execution (in Utah) weather
conditions were normal for the western states. For these jurisdictions there was no
notable decline in homicides.
Stack (1987) took a different approach in examining the deterrent effect of media
coverage of executions. He conducted a time-series analysis for the 1950-80 period
in which monthly rates of murder were regressed against measures indicating the
amount of newspaper coverage devoted to executions (high, medium, or low), with
statistical controls being introduced for two factors associated with murder rates—
the level of unemployment and the percentage of the population aged sixteen to
thirty-four years. Executions recorded in Facts on File (a comprehensive national
index of major news stories) and appearing in the New York Times were classified
as receiving high levels of publicity. Those appearing in the New York Times but
not in Facts were classified as receiving moderate media attention. And executions
not receiving coverage in either source were classified as low-publicity cases. Stack
found a significant decline in homicide rates for months with highly publicized
executions, but there was only a chance association for cases receiving moderate
or low publicity. Over the three decades, he estimates that "16 [highly] publicized
executions may have saved as many as 480 lives," for an average of thirty persons
saved per execution (Stack 1987:538).
Stack's analysis showing deterrence did not generate the response in the liter-
ature that Ehrlich's did, but his analysis was also subject to detailed scrutiny.
Specifically, Bailey and Peterson (1989) critiqued and replicated Stack's investi-
gation for the years Stack considered (1950-80) and for a more extended period
(1940-86). Their critique indicated the following major problems. First, the
dependent variable in Stack's investigation was the number of monthly homicides
per 100,000 persons sixteen years of age and older. Since the numerator of the
homicide index includes all homicides (regardless of the age of victims), it would
have been preferable to compute homicide rates per 100,000 total population. Using
this more conventional measure avoids the problem of how changes in the age
structure of the U.S. population may artificially influence the number of potential
homicide victims.
Second, like Ehrlich (1975), Stack failed to control for changes in the proportion
of the U.S. population legally subject to capital punishment. Consequently, Stack
makes the unwarranted assumption that execution publicity deters killings in abo-
litionist states. Doing so would be of only minor consequence if the proportion of
the population residing in abolitionist jurisdictions was roughly constant over 1950-
80. This is not the case. During the period this proportion varied from approxi-
mately 10 to 45 percent.
Third, deterrence theory predicts an inverse relationship between homicide rates
and the levels of execution. However, the frequency of monthly executions for
murder (which ranged from zero to sixteen during the period) is ignored completely
in Stack's investigation.
Fourth, Stack did not include controls for a number of structural variables found
to be associated with homicide rates: poverty, income inequality, race, the divorce
rate, urban population, and region; nor did he control for the availability of firearms
or the homicide arrest clearance rate (Bailey 1976; Ehrlich 1975; Kleck 1979;
Logan 1982). (Of note, FBI-reported arrest clearance rates for homicide ranged
from 72 to 94 percent over the 1950-80 period.) Finally, for the 1950-80 period,
Stack classified twenty-three executions (occurring during sixteen different months)
as receiving high levels of publicity. However, using his classification scheme,
Bailey and Peterson documented twenty-six high-publicity executions spread over
nineteen months.
Bailey and Peterson's replication of Stack's analysis revealed that these prob-
lems had a devastating effect on his findings. For example, merely correcting the
coding errors for the execution publicity variables resulted in a chance-only asso-
ciation between execution publicity and homicide rates. This nondeterrence pattern
remained when the monthly analysis was extended from 1940 through 1986, and
when the other concerns noted previously were addressed.
Television News Coverage of Executions
For the periods considered by Stack (1950-80) and by Bailey and Peterson (1940-
86), newspapers provided an important source of news for the U.S. population.
However, over the period, the percentage of homes with television sets grew dra-
matically, from less than 10 percent in 1950 to over 98 percent by the early 1980s.
Also during the period television gained in importance as a source of news for the
American public. To illustrate, between 1959 and 1982 Roper pollsters periodically
asked respondents: "Where [do] you usually get most of your news about what's
going on in the world today?" (Roper Organization 1983). Newspapers and tele-
vision were the most frequent sources mentioned (multiple sources could be cited).
Then* respective percentages were 57 percent and 51 percent in 1959, 48 percent
and 60 percent in 1971, and 44 percent and 65 percent in 1982. Not only has
television news grown in popularity, but survey data show that the American public
views television as providing the most "complete," "intelligent," and "unbiased"
source of news (Bower 1985:17).
Because of the growing importance of television news, Bailey (1990) extended
deterrence publicity research by examining for the 1976-87 period the relationship
between monthly murder rates and evening television news coverage devoted to
executions in the United States. He used monthly homicide (murder and nonne-
gligent manslaughter) data from the FBI and news coverage data from the Van-
derbilt Television News Archives.3 Bailey coded the amount of news coverage
devoted to each execution during the period, as well as the type of coverage. He
found only a chance association between homicide rates and the amount of tele-
vision news coverage devoted to executions. Similarly, Bailey did not observe
consistent evidence of deterrence when different types of coverage were aired, for
example, very graphic versus matter-of-fact presentation of the execution, murder-
ers presented as fully deserving of executions versus those who raised concerns
about the fairness of the execution (as in cases where youth or retarded persons
were executed).
In sum, researchers have given attention to the possible deterrent effect of ex-
ecution publicity. However, this body of work has produced no creditable evidence
that the level of print or electronic media attention devoted to executions signifi-
cantly discourages (deterrence) or encourages (brutalization) murder.
Deterrence and Different Types of Murder
Although support for deterrence has been negligible with but a few exceptions
(Ehrlich 1975, 1977; Stack 1987), researchers have examined an undifferentiated
category of general homicides. Thus, some critics of the mass of negative evidence
that has accumulated over the decades have complained that neither in theory nor
in policy has the death penalty been aimed at deterring all types of homicide (van
den Haag 1969, 1975, 1978; van den Haag and Conrad 1983). To the contrary,
only certain types of homicide are capital crimes in retentionist jurisdictions, and
it is these "capital" murders, not the overall rate of homicide, that should be
examined in deterrence investigations.4 (Most death penalty jurisdictions restrict
capital punishment to planned, intentional killings [premediated murder, first-
degree murder, or aggravated murder] and/or killings that result from the commis-
sion of another felony [felony murders]).
Due to data limitations, addressing this criticism has been a formidable task.
Most researchers have made use of either police data for murder and nonnegligent
manslaughter or public health figures for homicide derived from coroners and med-
ical examiners and available in the vital statistics reports of the National Center
for Health Statistics (NCHS). This data limitation is true for analyses reporting and
not reporting evidence of deterrence. Unfortunately, neither police nor public health
homicide figures allow one to differentiate capital from noncapital killings.5 In
deterrence investigations, the use of a broad category of homicides would be ac-
ceptable if it could be assumed for time-series analyses that the proportion of capital
to total homicides remained constant over the study period so that the more inclu-
sive homicide data provide a reasonable proxy for capital offenses; and in cross-
sectional analyses that the ratio of capital to total homicides is a constant from
state to state such that observed variation in police or public health homicide figures
reflects comparable variation in capital murder. Most death penalty investigators
have been willing to accept these assumptions, but the empirical basis for doing
so is questionable. Sellin's (1967) early observation that no one has succeeded in
accurately identifying and counting capital offenses hidden in the available aggre-
gate homicide figures still holds.
Studies of Capital Murder

Despite the difficulty of identifying capital homicides, there have been a few at-
tempts to examine directly the impact of capital punishment on death-eligible kill-
ings. Earlier we presented very briefly the results of Savitz's (1958) short-term
impact study of the influence of four highly publicized death sentences in Phila-
delphia. From an analysis of police and judicial records, Savitz was able to tally
what he termed "definite" and "possible" capital homicides that occurred during
the eight-week periods before and after the death sentences. As indicated, Savitz's
analysis failed to yield support for deterrence arguments. Figures for definite and
possible capital murders showed no indication of a significant decrease or increase
following the handing down of death sentences.
Bailey's 1975 study (summarized previously) examined first-degree murder
rates for death penalty and abolitionist jurisdictions for 1967 and 1968, controlling
for a variety of sociodemographic factors associated with homicide rates. Figures
for first-degree murder (the number of prison admissions for first-degree murder)
came from a survey of state correctional authorities. Consistent with studies of
general homicides, his analysis provided no indication of deterrence. Average rates
of first-degree murder were not higher for abolitionist (1967 = .18; 1968 = .21)
than death penalty (1967 = .47; 1968 = .58) jurisdictions, and there was only a
slight inverse correlation between executions and rates of first-degree murder (1967,
r = -.137; 1968, r = -.194).
In a third investigation Bailey (1984a) conducted a monthly time-series analysis
of executions and first-degree murders in Chicago, Illinois, for the period 1915-
21. Multiple regression analyses were performed where various execution measures
and time-lag structures were considered. For 1915 through 1921, monthly (n =
84) first-degree murder figures were taken from the annual statistical reports of the
Chicago Police Department. Cook County execution data were drawn from the
records of the Cook County Prison. For 1915-21 there were a total of twenty-six
executions.
At the bivariate level, Bailey found a slight positive relationship (r = .158)
between rates of first-degree murder and the number of monthly executions. A very
slight and nonsignificant relationship for these two variables generally persisted
when a variety of control variables were incorporated into multivariate analyses.
In no instance was there evidence of a significant decline in killings resulting from
executions. However, for some models there was a tendency for executions to be
associated with a significantly higher level of first-degree murder. This pattern is
consistent with the brutalization argument that executions promote murder. Because
this analysis is so time- and place-bound, it is not clear how generalizable this
possible brutalization effect might be.
A recent analysis by Peterson and Bailey (1991) calls into question the possi-
bility of both brutalization and deterrence for the most common type of capital
homicide—killings that result from the commission of certain felonies. Felony
murders and suspected felony murders constitute a quarter to a third of homicides
annually, and they also account for a large majority of death sentences and exe-
cutions. For the period of concern for Peterson and Bailey (1976-87), there were
ninety-three executions in the United States. Of these, sixty-seven (72 percent) were
for murders associated with robbery, rape, burglary, and kidnapping. On the basis
of these figures Peterson and Bailey argue that for recent years, a felony murder
analysis provides the most direct test possible of the deterrent effect of capital
punishment for capital murder.
Using felony murder data drawn from unpublished FBI Supplementary Homi-
cide Reports (SHR),6 Peterson and Bailey replicated Bailey's 1990 analysis of
monthly homicide rates and television news coverage of executions but substituted
as dependent variables overall felony murder rates and rates for particular types of
felony murders. These included killings resulting from rapes, robbery, burglary,
larceny, vehicle theft, and arson.
Rates for these types of felony murder were regressed against monthly execu-
tions, various measures of the amount and type of news coverage devoted to ex-
ecutions, and selected law enforcement and sociodemographic factors as control
variables. Consistent with studies of general homicides, the Peterson and Bailey
study produced negative findings regarding deterrence. With one minor exception,
the overall rate and rates of different types of felony murder were not responsive
to the levels of execution or television news coverage of executions over the 1976-
87 period. Rates of narcotics-related murders were found to be significantly lower
during months when there was television news coverage of what might be consid-
ered ' 'questionable' * executions—those where the person who was put to death
was retarded or was very young at the time of the crime, and where there were
appeals for mercy from prominent figures. Peterson and Bailey are not able to offer
a plausible explanation for this unique observation.
Finally, Cochran, Chamlin, and Seth (1994) conducted an interrupted time-series
analysis to examine the possible deterrent effect of Oklahoma's return to capital
punishment after a twenty-five-year moratorium. On September 10, 1990, Charles
Coleman was executed at the Oklahoma State Penitentiary. This execution gener-
ated a significant amount of media coverage in the state. Cochran and his associates
reasoned that if the death penalty has a deterrent potential, it certainly should be
evident in comparing weekly rates of felony murder for periods before and after
the Coleman execution.
Examining the period January 1989 through December 1991 (n = 156 weeks),
Cochran, Chamlin, and Seth did not find a statistically significant decline in total
felony murder resulting from the Coleman execution. The average number of
weekly felony murders was only slightly higher for the pre- versus postintervention
period (.73 versus .65). The decline was not statistically significant, and the inves-
tigators concluded that it did not warrant a deterrence label. However, Cochran and
associates observed what they termed a strong brutalization effect for the Coleman
execution for killings involving strangers. For the preexecution period, the mean
number of weekly killings involving persons not known to one other was .42,
compared with an average of .76 for the postexecution period. This increase in
stranger killings (+.34) is statistically significant (p < .05) and is not an artifact
of a general upward trend in such killings over the study period; nor was it due to
any other nonexecution factor that Cochran and his associates could detect.
Police Killings and Capital Punishment

The apprehension of criminals is dangerous business. Each year thousands of police
officers are assaulted and some are killed in the performance of their duties (FBI
1994). Do the threat and application of the death penalty afford the police an added
measure of protection against being slain in the line of duty? Some law enforcement
spokespersons have provided a loud and clear affirmative response to this question,
but not all police are so convinced (see, e.g., opinions expressed in the 1995 Death
Penalty Information Center report).
Scholars have sought to assess whether capital punishment in fact affords the
police an added measure of protection against lethal assaults. The format of these
analyses parallels the evolution of deterrence studies of general homicides, moving
from simple comparative studies to increasingly complex multivariate analyses.
Sellin (1955) provided the first study. Based on a survey of police departments in
U.S. cities with a population of at least ten thousand (in 1950) in seventeen death
penalty and six abolitionist jurisdictions, he examined annual police killing rates
per 100,000 population for the period 1919-54. Sellin did not find support for the
deterrence hypothesis. Rather, he observed that the average police homicide rate
for cities in death penalty (1.3) and abolitionist (1.2) states was virtually identical.
The length of the time period (1919-54) and the number of jurisdictions (265)
examined by Sellin are impressive, but he used a very unorthodox measure of
police killings: the total number of police homicides per 10,000 general, not police,
population. Correcting for this problem, Bailey (1982) examined, for abolitionist
and death penalty states (1961-71), annual police homicide rates computed on the
basis of the number of police killings per 1,000 police officers. He also examined
the relationship between the certainty of execution for murder and police killings.
For each year (1961-67), police killing rates were regressed against the ratio of
total executions to total criminal homicides, a dummy variable differentiating death
penalty from abolitionist states, and four control variables—proportions urban and
black population, and rates of poverty and unemployment. Bailey's results were
consistent with Sellin's. Policing was not found to be less hazardous in death
penalty states, nor where executions were at higher levels. An extension of this
analysis for the 1973-84 period also produced chance-only associations between
state-level police killing rates and capital punishment (Bailey and Peterson 1987).
In a recent investigation of deterrence and police killings, Bailey and Peterson
(1994) attempted to address a number of important concerns about the earlier stud-
ies. First, they argue that previous studies may not have addressed properly the
certainty hypothesis. Bailey (1982) and Bailey and Peterson (1987) operationalized
certainty as the ratio of total executions (or death sentences) to the total number
of homicides, rather than as the ratio of executions for police killings to police
killings.
Second, Bailey and Peterson argued that the dependent variables considered in
earlier analyses may be problematic. Sellin used the size of the general population
as the denominator in computing rates, and the remaining studies used the total
number of police killings as the numerator in constructing rates. However, it is
possible that not all types of police killings are equally subject to deterrence. For
example, it is possible that on-duty police, but not off-duty police, are afforded an
added measure of protection by capital punishment. Off-duty police killings often
take place in situations where an apparent civilian is being robbed or a home is
being burglarized. Similarly, it is possible that general jurisdiction officers (e.g.,
city police, county sheriffs, and state patrol) may gain a measure of protection from
capital punishment but that specialized officers (e.g., fish and game protectors,
customs agents, immigration and naturalization authorities, public housing and tran-
sit security) may not. Finally, Bailey and Peterson note that previous police killing
studies did not consider the publicity hypothesis.
To address these concerns, Bailey and Peterson conducted a national, time-series
analysis of police killings. Certainty was operationalized as the ratio of police
killings to the number of monthly executions of "cop killers." They considered a
general police killing rate (the number of officers killed per 100,000 police per-
sonnel), and rates for killings involving (1) on-duty and (2) off-duty police, and
killings of (3) general jurisdiction and (4) special-function police. The monthly
time series spanned January 1976 through December 1989. Over this period, 1,204
law enforcement officers were killed feloniously (FBI 1987-89), and there were
120 executions in the United States, 12 of which involved the execution of a "cop
killer." Because of their relatively small number (n = 12), Bailey and Peterson
also considered a broader execution rate measure—the ratio of total executions to
total criminal homicides.
Despite the added features of this study, the analysis did not challenge the
findings of previous investigations. Bailey and Peterson found no evidence that
overall and specific types of police killing rates were responsive to changes in the
provision for capital punishment, to the certainty of execution, or to the amount
and type of television news coverage devoted to executions.
Summary and Conclusions
Criminologists have devoted a great deal of research attention to the deterrence

and death penalty question. This attention is warranted and should not come as a
surprise for several reasons. First, the capital punishment question is an emotionally
charged issue for laypersons and policy makers. For many the deterrence issue is
at the heart of the debate (Zimring and Hawkins 1986). Second, the United States
is the only Western nation that retains capital punishment for common murder.
This fact underscores questions about the utility of this form of punishment within
the United States. Third, despite the relatively uniform pattern of negative findings
on capital punishment and deterrence, recent studies have raised questions that have
been addressed by investigators. Improvements in data availability and analysis
techniques also have permitted scholars to respond to many previously unanswered
deterrence and capital punishment issues.
Our concern in this chapter has been to review and assess the empirical evidence
regarding the deterrent effect of capital punishment. And because the literatures are
so linked, we have also considered the brutalization thesis: Do executions actually
promote, rather than discourage, murder? Due to the volume of research, our anal-
ysis has not included a detailed review of all the various studies. Rather, within
the context of the work concerning different dimensions of punishment, we have
presented an overview of types of deterrence studies primarily in terms of sub-
stantive questions and methodological approaches. Detailed discussion of a few

individual studies was provided, but only when warranted due to the nature of the
findings (e.g., the study finds support for deterrence) and/or the uniqueness of the
question examined or the research approaches taken.
In general, we have observed a number of features of the deterrence literature
that are noteworthy. First, the various dimensions of punishment emphasized by
deterrence theory have not been given equal attention in the empirical literature.
Investigators have seldom addressed the celerity issue. Thus, although the findings
from existing work on celerity are consistent with those for other dimensions of
punishment, the role of celerity is the least well understood.
Second, the approaches taken in deterrence research follow a progression from
using a comparative methodology whereby homicide rates are compared for abo-
litionist versus retentionist jurisdictions, or before and after a change in capital
punishment policy, or before and after highly publicized executions, to the use of
more and more sophisticated multivariate techniques. In general, the type of meth-
odological approach taken has not affected the pattern of findings regarding the
deterrent effect of capital punishment. Results have been quite uniform whatever
approach is taken.
Third, the evidence on how different dimensions of capital punishment influence
homicides is overwhelmingly contrary to deterrence theory. The bulk of evidence
does not support the brutalization thesis either. While some may be reluctant to
regard the existing evidence as conclusive, the consistency of findings is quite
impressive. Without exception studies of severity have failed to indicate support
for deterrence. The findings of the early comparative studies are especially impor-
tant because they demonstrate that even during a period when the death penalty
was in greater use in the United States, and when the delay between capital offenses
and executions was considerably shorter, the provision for capital punishment did
not appear to discourage murder.
The evidence regarding the certainty of punishment and execution publicity is
not totally uniform. In particular, during the mid-1970s, Ehrlich found evidence of
deterrence from time-series analyses of the United States (Ehrlich 1973, 1975) and
a cross-sectional analysis of states (Ehrlich 1977). Layson (1985) also found evi-
dence of a significant deterrent effect for the certainty of execution for the United
States over a multidecade period. And Stack (1987) found evidence of deterrence
from a monthly analysis of homicides and print media attention devoted to exe-
cutions. As detailed in this review, and as shown by Fox and Radelet (1989) for
the Layson study, these investigations suffer from a variety of theoretical and meth-
odological problems that are so serious that few scholars are willing to lend cre-
dence to these findings.
The few isolated studies which report that capital punishment may actually incite
killings (Bowers and Pierce 1980; Bowers 1984; Cochran, Chamlin, and Seth 1994)
have not been subjected to detailed scrutiny. As a result, it is difficult to know
what to conclude from these analyses. It is possible that for some types of homicide,
capital punishment may encourage citizens to kill. But which citizens and under
what conditions? Does the list of eligible killers include most citizens, or only
select persons/groups who experience certain environmental conditions? How do

factors such as a person's gender, age, race, economic status, access to an attorney
for redress, and the like influence one's likelihood of identifying with the state (as
executioner) and killing those who have wronged him or her? The brutalization
literature is generally silent on these basic issues (Bowers 1984; Bowers and Pierce
1980). These remain important questions for future research.
Of course, a very large body of accumulated findings that are contrary to a
theory such as deterrence does not necessarily provide a basis for discarding the
theory. Consistent negative findings could stem from tests that ignore important
variables or crucial questions, or from studies that do not provide critical tests of
the issues. For example, due to data limitations, most of the studies reviewed here
were not able to examine the effects of various death penalty characteristics for
capital homicides. Yet, regardless of the level of the certainty of execution or the
amount and type of media attention devoted to executions, only capital homicides
are likely to be subject to deterrence. Thus it could be claimed that nondeterrence
findings are based on studies that do not provide critical tests of the issue. It is
noteworthy, however, that investigators who have been able to examine death-
eligible killings also have found no evidence of deterrence (e.g., Bailey 1975, 1976,
1983; Cochran, Chamlin, and Seth 1994) but possibly some evidence for brutali-
zation (Cochran, Chamlin, and Seth 1994).
It has been posited that the findings and conclusions of deterrence studies may
be affected by a priori discipline-based beliefs and biases regarding the basic causes
of crime, including homicide (McManus 1985). The argument is that due to such
beliefs, some researchers (notably sociologists) working in the capital punishment
area have been unable to find a significant deterrent effect, while economists (who
are more comfortable with the fundamental tenets of deterrence theory) have not
had such a problem. We take strong issue with such a characterization of the
deterrence and death penalty literature. It is true that Isaac Ehrlich, the first inves-
tigator to report evidence of deterrence, is an economist. However, analyses by a
number of other economists have failed to confirm Ehrlich's findings and conclu-
sions (e.g., Forst 1977; Passell and Taylor 1977; Hoenack and Weiler 1980; Klein,
Forst, and Filatov 1978). At the same time, a sociologist (Stack 1987) is one of
the only other recent scholars to produce a study suggesting a possible deterrent
effect for capital punishment within the U.S. context.6
Thus, it appears that neither economists nor sociologists, nor persons from any
other discipline (law, psychology, engineering, etc.) have produced credible evi-
dence of a significant deterrent effect for capital punishment. And not a single
investigation to date has produced any indication that capital punishment deters
capital murders—the crime of direct theoretical and policy concern.
Roughly thirty years ago, Thorsten Sellin (1967) and Hugo Bedau (1967) con-
ducted a survey and assessment of the then available deterrence and death penalty
literature. Neither found evidence of deterrence. In the early 1980s and in the
aftermath of Ehrlich's work and the nation's return to the use of capital punishment,
Sellin (1980) and Bedau (1982) again assessed the evidence, with the same result.
In 1986 Zimring and Hawkins surveyed the literature regarding capital punishment
and deterrence. This effort also failed to produce evidence of a marginal deterrent
effect for capital punishment. Rather, they report that the evidence is *'clear and
abundant" that the death penalty is not an effective deterrent to murder.
It has now been almost a decade since Zimring and Hawkins's review. Over
this period there have been a number of important studies aimed at tying up various
"loose ends" regarding deterrence and the death penalty. These research efforts
do not challenge the assessments by Sellin, Bedau, and Zimring and Hawkins.
Rather, they add weight to their conclusions. The available evidence remains "clear
and abundant" that, as practiced in the United States, capital punishment is not
more effective than imprisonment in deterring murder.
For at least some death penalty proponents the nondeterrence evidence may not
be viewed as sufficiently clear and abundant. We urge these persons to undertake
the exercise that we have followed here of thoroughly examining the literature. We
also urge those who question the negative state of the evidence to conduct the types
of empirical analyses necessary to demonstrate the deterrent effectiveness of capital
punishment. We look forward to these studies but have our doubts about their
likelihood. This is because over the years, the authors of this essay, along with
many other scholars, have attempted to address successive concerns about the ad-
equacy of previous death penalty research. This includes examining different types
of capital homicide, expanding the number of important deterrence variables (cer-
tainty, celerity, publicity) under consideration in a given study, and examining
various time periods and a variety of jurisdictions. Additional studies may add to
our knowledge. However, short of conducting controlled experiments with capital
punishment, which are not possible in this society, we are hard-pressed to point to
any unaddressed death penalty questions where additional research might alter the
current pattern of nondeterrence findings. In the meantime, based upon our assess-
ment of the literature, we feel quite confident in concluding that in the United
States a significant general deterrent effect for capital punishment has not been
observed, and in all probability does not exist.
Notes
1. Examination of the second column of the table shows that some states were without
the death penalty for the entire period, while others provided for the death penalty each
year. In still other jurisdictions there were changes in provision for capital punishment
because of judicial and/or legislative actions.
2. Of note, for the 1956-60 period the median elapsed time between death sentences
and executions was 14.4 months, with the range extending from only 4.6 months (for Texas)
to 46.1 months (for Connecticut). In contrast, for persons executed in 1993, the median
elapsed time between sentencing and execution was 113 months (U.S. Department of Justice
1994).
3. The archives has been videotaping and abstracting ABC, CBS, and NBC evening
news programs since 1968. Of ninety-three executions during the 1976-87 period, thirty-
three (distributed over twenty-five months) received television news coverage by one or
more of the networks.
4. While van den Haag has been highly critical of the negative findings of most deter-
rence analyses, he has only praise for Ehrlich's research, which also relied upon general
rather than capital homicide data (van den Haag and Conrad 1983). Similarly, outspoken
abolitionists are quite aware of the limitations of the available homicide data but nonetheless
view studies that rely upon these data as providing clear and convincing evidence that the
death penalty does not deter.
5. The FBI, which collects homicide incident figures from police departments and stage-
level law enforcement coordinating agencies across the country, defines murder and non-
negligent manslaughter as "the willful (nonnegligent) killing of one human being by
another" (FBI 1992:7). Excluded from the FBI homicide counts, which appear in the annual
Uniform Crime Reports (UCR), are negligent manslaughters and justifiable and accidental
killings. Observing the World Health Organization's International Classification of Diseases
(ICD), the U.S. National Center for Health Statistics defines homicide as "a death resulting
from an injury purposely inflicted by another person" (NCHS 1967:9). Published NCHS
figures allow one to exclude from total homicide counts killings resulting from legal inter-
ventions—most notably lawful executions and justifiable homicides. For a detailed exami-
nation of the various features of the FBI and NCHS systems for compiling homicide figures,
see Riedel (1990).
6. Of note, Phillips (1980), who is also a sociologist, reports evidence of deterrence from
an analysis of homicide patterns in London, England, surrounding the execution of twenty-
two infamous murderers during the 1858-21 period. He found a 35 percent decline in
average homicides during the two weeks immediately following each execution. However,
Phillips also observed a "rebound effect" for the next few weeks to follow. This effect
essentially canceled out the immediate decline in killings. See Bowers (1988) for a detailed
analysis of the Phillips study.
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10
A National Study of the

Furman-Commuted Inmates: Assessing
the Threat to Society from
Capital Offenders
JAMES W. MARQUART
JONATHAN R. SORENSEN
. . . This study examines the prison and release behavior of all capital offenders
commuted by Furman. What happened to the former death row prisoners? How
accurate were the long-term predictions of violence? If released, did these offenders
repeat their crimes and return to prison? Providing answers to these and other
questions bears directly on the justification for capital punishment in many states
today—particularly those eight states whose current capital statutes have a "future-
dangerousness" provision.1 Such a provision reflects the premise that incapacitation
of capital offenders protects society from future violence inflicted by those offend-
ers.2 This study is a descriptive analysis of the institutional and post-release be-
havior of 558 Furman-commuted inmates in thirty states and the District of
Columbia. First, we examine the relevant literature on commuted offenders. Then,
we present the background characteristics of these inmates with special emphasis
on the race of offenders and victims. Next is an in-depth analysis of the institutional
behavior of the Furman-comnmted inmates that addresses whether these inmates
were a special threat to the custodial staff, other prisoners, and institutional order.
Finally, we examine the patterns of recidivism among these capital offenders. We
conclude with a discussion of recidivism among capital murderers and the accuracy
of long-term predictions of serious violence.
I. Previous Research on Commuted Capital Offenders
Little systematic research exists examining the behavior of commuted capital of-
fenders. ... Although the research literature on commuted offenders in prison is
Reprinted from Loyola of Los Angeles Law Review, vol. 23, no. 1, November 1989, pp. 5-28 and by
permission of the authors. Some of the text and footnotes have been deleted and the remaining notes
renumbered.
162
Assessing the Threat to Society from Capital Offenders 163
sparse, it does not suggest that these prisoners are more dangerous, violent or
aggressive than other offenders. If anything, the prison behavior of commuted cap-
ital offenders paralleled that of murderers in general, the latter group being "set-
tled" prisoners infrequently involved in homicidal or other violent types of
behavior.3
B. Recidivism of Commuted Capital Prisoners

... Although systematic research is also lacking on the recidivism of commuted
capital offenders, available research indicates that commuted prisoners, while on
release, pose no significant threat to society when compared to other similar of-
fenders. . . . 4
II. Methodology
The first stage in this research was to obtain a list of inmates commuted by Furman.
Douglas Lyons of the NAACP Legal Defense Fund prepared a "List of Persons
on Death Row at Time of Furman.'95 The list contained thirty states and 613
inmates whose capital sentences were set aside by the Furman ruling. We obtained
a copy, telephoned each state department of corrections, developed a contact per-
son, and explained our research goals. Next, a letter was forwarded to each contact
person that identified the commutees and outlined the specific objectives and time
frame for data collection. The necessary research agreement forms were then signed
and our research plan was officially approved.
Once the research was formally approved we forwarded code sheets to the con-
tact persons for data collection. These sheets covered six data categories:
1. current status (e.g., still in prison, paroled, deceased);

2. previous felony convictions;
3. total number of prior incarcerations;
4. prison disciplinary history;
5. victim information for the crime for which the defendant received the death
penalty; and
6. whether the crime was committed in the commission of another felony....
III. General Characteristics of the Furman-Commuted

Offenders
A. Region and State

... Table 10-1 presents a state by state listing of how many capital offenders had
their sentences commuted by Furman. We give both Lyons' and our figures.
Table 10-1.
Region and State Comparison by List
Lyons' list Our study

State Murder Rape Total# Murder Rape Total#
TOTAL 527 82 613 474 80 558
NORTHEAST 59 0 59 61 0 61
Connecticut 4 0 4 4 0 4
Massachusetts 23 0 23 25 0 25
New Hampshire 2 0 2 2 0 2
New York 5 0 5 5 0 5
Pennsylvania 25 0 25 25 0 25
MIDWEST 123 0 123 88 0 88
Illinois 31 0 31 — 0*
—
Indiana 9 0 9 9 0 9
Kansas 2 0 2 2 0 2
Missouri 16 0 16 16 0 16
Nebraska 2 0 2 2 0 2
Ohio 63 0 63 59 0 59
WEST 25 0 25 25 0 25
Colorado 2 0 2 2 0 2
Nevada 8 0 8 8 0 8
Utah 5 0 5 5 0 5
Washington 10 0 10 10 0 10
SOUTH 320 82 406** 300 80 384**
Alabama 26 5 31 26 5 31
Arkansas 6 0 6 6 0 6
Delaware 3 0 3 3 0 3
District of Columbia 3 0 3 1 0 1
Florida 73 29 102 71 29 100
Georgia 29 12 43** 27 12 40**
Kentucky 21 0 21 21 0 21
Louisiana 36 12 48 29 10 39
Maryland 18 5 23 18 5 23
Mississippi 9 0 9 9 0 9
North Carolina 9 2 11 8 2 10
Oklahoma 15 0 15 15 0 15
South Carolina 10 1 11 10 1 11
Tennessee 11 5 16 11 5 16
Texas 42 8 52** 37 7 47**
Virginia 9 3 12 8 4 12
*Illinois did not complete the codesheets. However, an official stated that of the thirty-one Illinois
offenders, nineteen have never been released from prison, ten have been discharged, and two have been
paroled. No releases have returned to prison.
**Includes four robbers. The LDF listed two robbers from Georgia and two from Texas. In the current
survey, however, one robber was from Georgia and three were from Texas.
Table 10-2.
Criminal History of the Fwrman-Commutees
White Nonwhite Total

(N = 240) (N = 318) (N = 558)
Prior record
Convicted of UCR offense* 56.9% 52.7% 54.5%
Convicted of UCR property
offense 46.3% 38.8% 42.1%
Convicted of UCR violent
offense 24.5% 28.7% 26.8%
Prior adult prison
incarceration 45.5% 33.1%** 38.6%
Prior jail term 31.7% 29.2% 30.3%
Prior juvenile incarceration 22.1% 24.7% 23.6%
*Offense documented by the Uniform Crime Reports.
**Chi square = 4.05; d.f. = 1; p < .05 level.
According to both lists, most of the death row population in 1972 resided in
Southern prison systems. These data are consistent with previous research on region
and capital punishment in America. In December 1988, 59% of those sentenced to
death were confined on Southern death rows.6 All Furrow-commuted prisoners
sentenced to death for rape and robbery were also from the South....
B. Offender Characteristics
According to our data, there were 558 inmates (excluding Illinois) on death row
awaiting execution in 1972 who were commuted as a result of Furman. Of these
inmates, 474 (85%) were capital murderers, eighty-one (14%) were rapists, and
four (1%) were sentenced to death for armed robbery. In terms of race and eth-
nicity, 309 (55%) prisoners were black, 240 (43%) were white, eight (1%) were
hispanic, and one was an American Indian. As expected, the capital offenders were
overwhelmingly male (only two were female), with a median age of thirty-two
years in 1972.
We asked each state prison system to provide data on the prisoners' prior crim-
inal history. According to our contact persons, these data were gleaned from initial
classification interviews and cross-checked with FBI and local state police records.
Table 10-2 presents this information.
These data reveal that the majority of commuted offenders had been convicted
of a prior UCR [Uniform Crime Reports] offense. They were not first offenders.
However, these conviction data also show that property crimes were their main
criminal activity. Nearly three-quarters had no prior convictions for violent UCR
offenses. Specifically, 97% had no previous conviction for murder, 96% for rape,
87% for armed robbery, and 85% for aggravated assault.7 Additionally, 61% of
these inmates had never been incarcerated in an adult correctional institution. In
Table 10-3.
Comparison of Fwrman-Murderers, Persons Arrested for Murder Only 1968-72, and the
Current Death Row Population
Current**
Furman Arrestees* death row
(N = 474) (N = 64,337) (N = 2,158)
Offender characteristics
Sex
Male 99.6% 84.3% 98.9%
Female 0.4% 15.7% 1.1%
Race
White 47.5% 36.8% 51.8%
Nonwhite 52.5% 63.2% 48.2%
Victim characteristics
Sex
Male 67.4% 78.0% 56.0%
Female 32.6% 22.0% 44.0%
Race
White 80.2% 44.4% 61.9%
Nonwhite 19.8% 55.6% 38.1%
*Source: FBI, UNIFORM CRIME REP., 1968-1972.
**Source: Tanya Coke and Karima Wicks of the NAACP Legal Defense and Education Fund.
short, the typical Furman-commutQe was a southern male black murderer without
a lengthy history of serious violence or repeated trips to prison.
IV. Offense Data
A. The Furman Murderers

... Table 10-3 compares the Fwrman-releases with persons arrested for murder
during the preceding five years. While not offering conclusive evidence, these data
provide support for the differential sentencing of capital offenders—in this case
murderers. Clearly, capital juries consistently sentenced to death those defendants
who killed whites. While a direct comparison between the groups is not possible,
the differential treatment of male and female homicide offenders has been shown
repeatedly and exists in pre-Furman and post-Furman periods. In the five years
prior to 1972, 16% of those arrested for murder were women, yet less than 1%
were on death row at the time of the Furman decision. During 1968-1972, an
average of 22% of the victims of homicide were female. However, victims of death
row inmates were female in 33% of the homicides.
Table 10-3 also presents data on those currently housed on death row. Today's
death row population is somewhat dissimilar from the Furman prisoners. The ma-
jority of death row inmates are white males. Interestingly, 38% of today's victims
were non-white, as compared to 20% in the Furman era. Perhaps prosecutors are
more sensitive to minority victims of felony-murders than they were two or even
three decades ago. Authorities may simply be more willing to prosecute these cases
today.
To obtain a more focused picture of the capital murderer, we collected data on
the victims of the Furman murderers. Table 10-4 presents data on these crimes.
These data indicate that white and non-white offenders were quite similar in
terms of the number of victims, and the sex and age of the victim. By far the most
striking difference between white and non-white murderers was the victim's race.
White offenders killed whites in almost every circumstance. However, non-white
offenders "crossed over" 65% of the time and were subsequently sentenced to
death. This pattern of differential sentencing is also evident in Table 10-3. Less
than half of the homicide victims during the five years prior to Furman were white.
However, victims of offenders on death row were overwhelmingly (80%) white.
Based on the victim's race, our data suggest bias and arbitrariness in the processing
of capital murder cases.
If racial discrimination occurs through interaction with other variables, one
would expect that non-white and white offenders on death row would have different
background characteristics. Data would show that non-whites are less violent than
whites, or that the circumstances of the crime were not as grave for non-whites to
become death row inmates. However, data in this paper reveal that non-whites
typically had more violence in their backgrounds and their capital offenses were
more serious in that they occurred in the course of another felony.
B. The Furman Rapists

In the first several decades following the Civil War Reconstruction era, executions
consisted mainly of lynchings of blacks convicted of crimes against whites. The
penalty served to reassert social distance—and social control-between the racial
groups and to primarily "protect" whites.8 Early twentieth century trials appeared
to be a continuation of the same process. Lawyers, social scientists, and other
authors have noted discrimination occurring in these instances.9 As a Southern
student of law wrote:
One has only to visit a Southern community at a time when some Negro is on trial
for the rape or murder of a white person to obtain a vivid picture of the hate and
passion and desire for vengeance which is often aroused in the hearts of the southern
whites.... Under circumstances of this kind it is rather difficult for the jury or even
the judge to escape being influenced by the feeling which permeates the throng.10
Statistics support the sentiment that the death penalty has been imposed in a
discriminatory manner, especially in rape cases. The definitive work on racial dis-
crimination and the imposition of capital punishment for rape prior to 1972 was
conducted by Wolfgang and Riedel.11 That study reported the following: of the
3,859 persons executed for all crimes since 1930, 54.6% have been black or mem-
Table 10-4.
Victim-Offender Relationship by Race of Offender
White Nonwhite
offenders offenders Total
(N = 225) (N = 249) (N = 474)
Offense characteristics
Multiple victims 20.3% 16.7% 18.4%
Sex of victim
Male 64.7% 69.9% 67.4%
Female 35.3% 30.1% 32.6%
Median age of victim 38 34 37
Race of victim
White 95.2% 65.5%* 80.5%
Nonwhite 4.8% 34.5% 19.5%
Victim-offender relationship
Stranger 42.0% 60.8%** 52.3%
Law enforcer 13.0% 13.9% 13.5%
Acquaintance 29.0% 20.5% 24.3%
Family 15.9% 4.8% 9.9%
Committed during a felony 50.0% 64.4%*** 58.0%
*Chi square = 45.6; d.f. = 1; p < .00001.

**Chi square = 13.18; d.f. = 1; p < .0005.
***Chi square = 7.07; d.f. = 1; p < .01.
bers of other minority groups. Of the 455 executed for rape alone, 89.5% have
been non-white....
Our data reveal a clear pattern of discrimination that parallels the findings of
Wolfgang and Riedel. Of the eighty rapists on death row at the time of the Furman
decision, all were incarcerated in southern prison systems. Furthermore, sixty-eight
(85%) were non-white. The victims of these offenses were overwhelmingly white
(91% of the instances). Most of these offenses (81%) involved a lone victim, who
was unknown to the assailant (78% of the offenses). Most of the rapists lacked a
prior record. Only 5% had a previous rape conviction, while 29% had been confined
in an adult penitentiary for any crime. Nationwide, during 1968-1972, an average
of 51% of persons arrested for rape were non-white.12 Of the Furman-commuted
offenders, 85% were non-white.
V. Institutional Behavior
Custodial officers, psychiatrists and prison administrators feared the release of the
Fwnwaw-commuted inmates into the general prisoner population.13 Many believed
that these former death row prisoners were different from other inmates and rep-
resented a unique security risk.14 In this section, we analyze the institutional dis-
ciplinary behavior of the Furman offenders from 1972-1987....
A. Serious Rule Violations

The definition of serious rule violations and the classification of these offenses vary
between states. To insure coder reliability, we designated three major generic cat-
egories of offenses: offenses against other prisoners such as murder and fighting
with weapons; offenses against prison staff such as striking a guard; and offenses
against institutional order such as inciting riots or work strikes....
Table 10-5 presents the number of serious rule violations for Furman-commuted
murderers and rapists and the percentage of each group involved in those violations.
The data in Table 10-5 indicate that over a fifteen-year period, slightly less than
one-third of the former death row inmates committed serious prison rule violations.
Over one-half (84 or 51.9%) of those inmates committing serious rule violations
were involved in only one rule violation, and another quarter (38 or 23.5%) were
involved in only two rule violations. These data demonstrate, at least among these
violators, that most serious infractions were one-time events or situations. In short,
most of the Furman inmates were not violent menaces to the institutional order.
As a group, they were not a disproportionate threat to guards and other inmates.
B. Chronic Rule Violators

A small group of chronic offenders, forty inmates (7.4% of the total for whom
disciplinary information was available) were involved in three or more serious rule
violations, accounting for more than one-half of the total serious rule violations.
Each of these forty inmates (thirty-six murderers and four rapists) committed an
average of 5.1 serious rule violations over the fifteen-year period. This finding
supports previous studies which have shown that within the prison community, as
in the free world, a small group of offenders accounts for the majority of offenses.15
C. Violent Rule Violators

For the purposes of this study, violent rule violators were defined as those prisoners
who committed murders and weapon-related aggravated assaults on prison staff or
other inmates. Overall, the Furman offenders committed six killings in the insti-
tutional setting. The four prisoner homicides occurred in Alabama, Florida, Loui-
siana, and Pennsylvania. Both prison guard murders occurred in Ohio. Further, all
six institutional killers were serving time for capital murder. Two of these mur-
derers were again sentenced to death, one for the murder of an inmate in Florida,
and the other for the murder of a correctional officer in Ohio. Of the other fifty-
nine serious acts of violence, thirty-eight inmates (thirty-three murderers and five
rapists) were involved. We investigated the differences between inmates commit-
ting serious violent acts and those who did not.
Table 10-5.
Number of Serious Rule Violations by Crime*
Murderers Rapists
(Valid N = 453) (N = 80)
Offense
Prisoner-prisoner acts
Homicide 4 (0.9%) 0
Aggravated assault with a
weapon 29 (4.4%) 6 (6.3%)
Aggravated assault without a
weapon 113 (11.7%) 22 (17.5%)
Aggressive sexual attacks 20 (2.4%) 1 (1.3%)
Prisoner-staff acts
Homicide 2 (0.4%) 0
Aggravated assault with a
weapon 17 (2.4%) 0
Aggravated assault without a
weapon 30 (4.6%) 4 (5.0%)
Acts against institutional order
Escape 77 (12.6%) 7 (6.3%)
Rioting 30 (4.9%) 0
Work strike 3 (0.7%) 1 (1.3%)
Total offenses 325 (30.2%) 41 (31.3%)
*Of the four armed robbers in the study, none committed any serious rule violations.
Neither offense characteristics (including whether the act was committed in the
commission of another felony or the victim-offender relationship) nor the offen-
der's race, age, or prior criminal history significantly differed between those who
committed violent acts and those who did not. In short, no variable served as a
predictor of these violent acts.
VI. Parole Behavior
Perhaps the greatest fear expressed after the Furman decision was that commuted
inmates would someday be released to society and commit more heinous crimes.
Enough of these inmates have been released to society so that predictions made in
1972 regarding their propensity toward violence on the community at large can be
assessed....
A. The Parolees
Of the 558 Fwrwan-commuted inmates, 315 (56.5%) have not been released from
prison. Of those, thirty-nine died, and three escaped and have not been recaptured.
Table 10-6.
Release from Prison by Region and Crime*
Region Never released Released

SOUTH
Murder 51.6% (142) 48.4% (133)
Rape 35.4% (28) 64.6% (51)
Armed robbery 0 100.0% (4)
MIDWEST* 56.1% (46) 43.9% (36)
NORTHEAST* 81.5% (44) 18.5% (10)
WEST* 59.1% (13) 40.1% (9)
Total 52.9% (273) 47.1% (243)
*Furman inmates in these three regions were all convicted of capital murder.
Two hundred forty-three (44%) of the capital offenders have been released to society.
Of these, 191 (78.6%) have not been returned to prison: 147 are on their original pa-
role, 19 discharged their sentences, 17 successfully completed their parole, 6 died in
the community, and 2 were pardoned. Fifty-two (21%) of the releasees returned to
prison for technical violations or new offenses. Of these, forty-two are currently in-
carcerated, eight have been re-paroled, and two have died in prison.
In the following analyses, those prisoners who have died or escaped will not be
considered. Neither of the two females have been paroled. Very few of the chronic
and violent prison rule violators have been paroled and those that were spent an
average of nine and one-half years in the general prisoner population prior to
release. Table 10-6 reports the number of parolees by region and crime.
As can be seen in Table 10-6, every armed robber and two-thirds of the rapists
were released from confinement. Releases were most commonly granted in the
southern states, and least often in the northeast. However, inmates have been re-
leased from confinement in all but three states.16
Unlike inmates in states with life-without-parole sentencing statutes, nearly all
of the Furman inmates are eligible and will soon be reviewed for parole. Of those
not yet released, almost every expected parole date for these inmates is set for the
early 1990s.
How have the FMnnan-releasees fared on parole? Did these capital offenders
present a great risk to society? Table 10-7 reports the percentages of the murderers
and rapists who were released and returned to prison or recidivated (percent of
offenders convicted of new crimes or returned to prison for technical violations).
The released Furman-commuted offenders have lived a combined total of 1,282
years in the community while committing twelve violent offenses—approximately
two violent offenses per year for the released inmates or nine violent offenses per
1,000 releasees per year. Recidivism occurred an average of 3.4 years after release
for murderers and 2.5 years for rapists. Of the 239 paroled offenders, one killed
again. Two rapists raped again.
To determine if this level of recidivism is excessive for these criminals, we
Table 10-7.
Total Recidivism by Offense*
Release outcome Murderers Rapists

Total released 188 (43.4%) 51 (64.6%)
Mean time in community 5.3 years 5.6 years
Reactivated 38 (20.2%) 13 (25.5%)
Technical violations 15 (8.0%) 4 (7.8%)
Misdemeanor 3 (1.6%) 0
New felony offense 20 (10.6%) 9 (17.6%)
Murder 1 0
Rape 0 2
Robbery 4 2
Aggravated assault 1 2
Burglary 4 2
Larceny-theft 3 0
Possession of firearms 2 0
Drugs 4 1
Indecency with a child 1 0
*Of the four armed robbers released, one returned to prison in 1987 for commiting an
armed robbery.
compared them to a like group of offenders, specifically other murderers. Bedau

cites various data on the release behavior of paroled murderers.17 The data show
that, overall, only a small percentage (less than 1%) of released murderers were
returned to prison for committing a subsequent homicide. For example, of 11,532
murderers released between 1971 and 1975, twenty-six committed new homicides
in the first year after release from prison. However, our data reveal that after five
years on parole, only one murderer committed a second murder while in the larger
society. Though these data are not conclusive, they do suggest that the capital
murderers on parole do not represent a disproportionate threat to the larger society.
The data in this study parallel other recidivism research on murderers in gen-
eral.18 While murderers on parole appear to rarely repeat their original crime, more
research on these released offenders is needed. We agree with Bedau's conclusion
on this point:
While not complete, these data studies of murderers on parole are encouraging. Al-
though they prove that the popular belief is true, that murderers do sometimes kill
again even after years of imprisonment, the data also show that the number of such
repeaters is very small. Both with regard to the commission of felonies generally and
the crime of homicide, no other class of offender has such a low rate of recidivism.
So we are left to choose among clear alternatives. If we cannot improve release and
parole procedures so as to turn loose no one who will commit a further murder or
other felony, we have three choices. Either we can undertake to execute every con-
victed murderer; or we can undertake to release none of them; or we can reconcile
ourselves to the fact that release procedures, like all other human practices, are not
infallible, and continue to improve rehabilitation and prediction during incarceration.19
Given the amount of time these parolees have spent in the free community (an
average of five years), their overall post-release behavior takes on great significance
when evaluating the incapacitation effect of the death penalty. Murder is the prime
concern. Incapacitation advocates would insist that the execution of every Furman-
offender would have prevented the one subsequent murder referred to above. Fur-
ther, the executions would have prevented six prison murders (four inmates and
two guards). This evidence supports permanent incapacitation as a means to prevent
future capital crimes.20 However, four inmates on death row at the time of Furman
were innocent according to a study by Bedau and Radelet.21 These four individuals
could possibly have been executed had it not been for Furman.
At the same time, incapacitation advocates might argue that the death row ex-
perience itself was prophetic and acted as a deterrent that kept more of the Furman-
releasees from killing again. That is, the Furman inmates were so close to death
that they straightened up their act out of fear. Although this possibility seems far-
fetched and self-serving, it is a viable explanation for the behavior of some pris-
oners. For example, a Furman inmate in Texas, a double murderer who has never
been released from prison, wrote us and explained that his good prison conduct
and overall positive outlook on life were the direct result of his time spent on death
row. Moreover, this capital murderer has over the years completed more than a
dozen furloughs successfully.
While execution would certainly have prevented seven additional murders, our
data also show that 551 prisoners, or 98%, did not kill either in prison or in the
free community. The vast majority served their time hi prison with few challenges
to the prison staff. Moreover, most of those released on parole were not menaces
to the social order. The death row experience alone cannot account for deterring
551 inmates spread across thirty states. What can account for this fact?
In 1972, the average age of the Furman inmates was thirty-one years. These
inmates were generally older than other "incoming" prisoners. Some had spent
five, six, or even seven years on death row prior to commutation and this confine-
ment eased their adjustment upon return to the general prisoner population. If
anything, the death row experience was a learning experience. While confined on
"the row," these prisoners learned how to survive in prison and how to "do time."
When released to the general prisoner population in 1972, they were already "pri-
sonized" and acclimated to institutional life. This minor adjustment translated into
relatively few disciplinary infractions. The disciplinary data reported earlier support
this point. The Furman prisoners represented an "older" cadre of convicts well-
adapted to the penitentiary....
VII. Conclusions
. . . While there is some ambiguity as to just how many death row prisoners were
actually affected by Furman, the research reported here accounts for 558 inmates
scattered across twenty-nine states and the District of Columbia. We tracked these
558 prisoners' institutional and release behavior for nearly fifteen years. In the
prison setting, these prisoners committed six murders—killing four prisoners and
two correctional officers. However, the majority of the former death row prisoners
served out their sentences with few instances of serious institutional misconduct.
A minority were responsible for the bulk of disciplinary infractions.
Over the course of fifteen years, 239 Fwrman-commuted prisoners were released
to the free community. These parolees have spent an average of five years in
society. Twenty-one percent recidivated and were returned to prison, 12% com-
mitting new felonies. Only one parolee from Texas committed a second homicide.
On the other hand, nearly 80% of those released to the free society have not, at
least officially, committed additional crimes.
H. L. A. Hart asked: "What is the weight and character of the evidence that
the death penalty is required for the protection of society?"22 This question, in our
opinion, is the most salient one in any discussion of the utility of capital punish-
ment. Seven (1.3%) Furman-commuted prisoners were responsible for seven ad-
ditional murders. Certainly execution of all 558 prisoners would have prevented
these killings. However, such a "preemptive strike" would not have greatly pro-
tected society. In addition, four innocent prisoners would have been put to death.
The question then becomes whether saving the lives of the seven victims was worth
the execution of four innocent inmates.
The data in this paper suggest that these prisoners did not represent a significant
threat to society. Most have performed well in the prison; those few who have
committed additional violent acts are indistinguishable from those who have not.
Therefore, over-prediction of secondary violence is indicated.23 More than two-
thirds of the Furman inmates, using a very liberal definition of violence, were false
positives—predicted to be violent but were not. We cannot conclude from these
data that their execution would have protected or benefitted society....
Notes
1. See Worrell, Psychiatric Prediction of Dangerousness in Capital Sentencing: The
Quest for Innocent Authority, 5 BEHAV. Sci. 433, 433-36 (1987). For examples of future
dangerousness provisions in capital punishment statutes see OKLA. STAT. ANN. tit. 21, §
701.12.7 (West 1983); VA. CODE ANN. § 19.2-264.2 (1983); WASH REV. CODE ANN. §
10.95.060(8) (Supp. 1989).
2. See generally P. Greenwood & A. Abrahamse, Selective Incapacitation (August
1982) (available at RAND Corp., Santa Monica, California, doc. no. R-2815-NU); von
Hirsch & Gottfredson, Selective Incapacitation: Some Queries About Research Design and
Equity, 12 N.Y.U. REV. L. & Soc. CHANGE 11 (1983-84).
3. See Flanagan, Time Served and Institutional Misconduct: Patterns of Involvement in
Disciplinary Infractions Among Long-term and Short-term Inmates, 8 J. CRIM. JUST. 357
(1980).
4. Stanton, Murderers on Parole, 15 CRIME & DELINQ. 149, 150 (1969); Bedau, Cap-
ital Punishment in Oregon, 1903-1964, 45 OR. L. REV. 1 (1965); H. Bedau, Recidivism,
Parole, and Deterrence, in THE DEATH PENALTY IN AMERICA 173, 174 (3d ed. 1982);
Bedau, Death Sentences in New Jersey, 1907-1960, 19 RUTGERS L. REV 1 (1964).
5. Unpublished study from NAACP Legal Def. and Educ. Fund, Inc. (1982)
6. Unpublished study from NAACP Legal Def. and Educ. Fund, Inc. (1988).
7. In 1987, 88.8% of the prisoners on death row had never been convicted of a prior
homicide. BUREAU JUST. STATISTICS BULL., U.S. DEP'T JUST., CAPITAL PUNISHMENT 1987
(July 1988).
8. Phillips, Exploring Relations Among Forms of Social Control: The Lynching and
Execution of Blacks in North Carolina, 1889-1918, 21 LAW & SOC'Y REV. 361, 364 (1987).
9. See, e.g., C. Magnum, THE LEGAL STATUS OF THE NEGRO 274-370 (1940); G.
Myrdal, AN AMERICAN DILEMMA 547-59 (1944).
10. C. Magnum, supra note 9 at 274.
11. Wolfgang and Riedel, Race, Judicial Discretion, and the Death Penalty, 407 ANNALS
119 (1973).
12. 1968 FBI UNIFORM CRIME REP. 13; 1969 FBI UNIFORM CRIME REP. 12-13; 1970
FBI UNIFORM CRIME REP. 14; 1971 FBI UNIFORM CRIME REP. 14; 1972 FBI UNIFORM
CRIME REP. 14.
13. Interview with ex-warden of Texas prison system in Huntsville, Texas (September,
1987) (name withheld upon request).
14. For instance, one classification and records officer from Texas whom we interviewed
predicted that the Furman inmates would commit serious acts of violence and generally be
a disruptive element in the prison setting. Interview with Texas classification officer in
Huntsville, Texas (September, 1987) (name withheld upon request).
15. See Fox, Analysis of Prison Disciplinary Problems, 49 J. CRIM L., CRIMINOLOGY,
& POLICE Sci. 321, 324 (1958); Ramirez, Race and Apprehension of Inmate Misconduct,
11 J. CRIM. JUST. 413, 418 (1983); Wolf, Freinek & Shaffer, Frequency and Severity of
Rule Infractions as a Criteria of Prison Maladjustment, 22 J. CLINICAL PSYCHOLOGY 244,
246 (1966).
16. Life terms in these three states in 1972 generally allowed parole after serving 10 to
20 years, including good time. Only Kansas, with two Furman-commuted inmates, indicated
that those inmates were not eligible for parole without an executive pardon.
17. See H. Bedau, Recidivism, Parole, and Deterrence, in THE DEATH PENALTY IN
AMERICA 175-80 (3d ed. 1982).
18. See Donnelly & Bala, 7977 Releases: Five Year Post Release Follow-Up, ALBANY,
N.Y., DEP'T OF CORRECTIONAL SERV. (1984); Auerbach, Common Myths About Capital
Criminals and Their Victims, 3 GA J. CORRECTIONS 41 (1974); Wallerstedt, Returning to
Prison, in BUREAU OF JUST. STATISTICS SPECIAL REP., U.S. DEP'T OF JUST. (1984).
19. H. Bedau, supra note 17, at 175-80.
20. See Gibbs, Preventive Effects of Capital Punishment: Other Than Deterrence, 14
CRIM. L. BULL. 34, 37^40 (1978).
21. See Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN.
L. REV. 21, app. B at 177 (1987).
22. H. Hart, PUNISHMENT AND RESPONSIBILITY 71 (1968).
23. See F. Dutile & C. Foust, THE PREDICTION OF CRIMINAL VIOLENCE (1987).
11
Prison Homicides, Recidivist Murder,
and Life Imprisonment
H. A. BEDAU
Even if the death penalty's superiority as a general deterrent to murder cannot be

reasonably argued—at least, on the basis of the evidence so far accumulated on
that subject—it is nonetheless possible to argue in favor of the preventive efficacy
of capital punishment on narrower grounds, especially two: First, the threat of
execution is needed to reduce the likelihood of murderers in prison killing fellow
prisoners, staff, or visitors; second, deterrence to one side, murderers are likely to
repeat their crimes, and only the death penalty can guarantee adequate incapaci-
tation. These sentiments were forcefully expressed during a Senate hearing by Nor-
man A. Carlson, director of the federal Bureau of Prisons, when he said:
In my opinion, the lack of a . . . death penalty makes a mockery of the ... criminal
justice system when we attempt to deal with multiple murderers who continue to prey
on innocent victims, both staff and inmates.... Where assailants are already serving
multiple consecutive life sentences, they can act with impunity [when] a life sentence
is the most severe penalty that the... criminal justice system authorizes as punish-
ment for murder. One more life sentence means absolutely nothing to such individ-
uals. (1983:4, 5)
The argument sounds plausible, no doubt, but what is the empirical evidence in
its support?
Prison Homicide
The most recent research on prison homicide and the death penalty was that con-
ducted by Wendy Phillips Wolf son in 1981 and published in the 1982 edition of
The Death Penalty in America. She argued that on the evidence of homicides in
prison in death penalty states versus those in abolitionist states, "The threat of the
death penalty in the retentionist jurisdiction does not even exert an incremental
deterrent effect over the threat of a lesser punishment in the abolitionist state"
(Wolfson 1982:167). But her data were confined to only three years several decades
176
Prison Homicides, Recidivist Murder, and Life Imprisonment 177
ago (1964, 1965, 1973), and one might reasonably wonder whether her conclusions
were still valid for the 1990s.
Some more recent data suggest they are. In the six-year period 1984-89, a total
of twenty-one prison staff members were killed by prisoners (how many of them
were convicted murderers is not known). Two of these crimes occurred in an
abolitionist jurisdiction (Michigan), but the rest occurred in ten jurisdictions that
authorized the death penalty (California, Florida, Illinois, Kentucky, Maryland,
Mississippi, New Mexico, Ohio, Texas, and the federal prisons).1
More recently, in a survey of prison homicides for the years 1992-93, we learn
that in the thirty-eight death penalty jurisdictions of those years (six, including
California, not supplying information), a total of sixty-five inmates were killed by
other inmates. In the fourteen abolition jurisdictions (three, including Massachusetts
and Michigan, not reporting), a total of thirteen inmates were killed. Thus, in the
abolition jurisdictions, fewer than one prisoner per state was killed every two years
by another inmate, whereas in the death penalty states an inmate was murdered by
another inmate almost every year.2
These figures are hardly conclusive on the matter, but there seems to be no
adequate research updating and testing Wolfson's results. And the data reported
here surely are consistent with the claim that the death penalty is not necessary to
protect prison inmates from their violent fellow inmates.
Recidivist Murder
The research by Marquart and Sorensen, reprinted here as chapter 10, gave inter-
esting information about the recidivism of more than five hundred death row pris-
oners who were not executed. Several other recent studies shed some light on the
recidivism of convicted murderers generally.
In Table 11-1 we learn that at the end of 1993, one in eleven (240 out of 2,643)
of those then on death row were known to have a "prior homicide conviction."
Of these, two out of three had a "prior felony conviction." This pattern of prior
criminal history of death row convicts is more or less typical of recent years.3 The
vast majority of those under sentence of death are men (all but forty-nine, as of
January 1996; recall Table 5-1) between the ages of twenty and forty-five—argu-
ably mature offenders who are difficult, if not impossible, to house safely with
other offenders in the general prison population, much less to reform and return to
the streets better socialized than when they were convicted. Or so one is inclined
to think if one believes the death penalty necessary and appropriate for at least
some convicted murderers.
Turned around, however, these same figures suggest a rather different picture.
The data reported in Table 11-1 also show that nearly one-third (822 out of 2,562)
of those under death sentence had no prior criminal record. (To be sure, some may
have had convictions as juveniles for crimes that would be felonies if committed
by an adult, and others may have committed felonies without detection and arrest.)
Table 11-1.
Criminal History Profile of Persons Under Sentence of Death, by Type of Offense and
Race, 1994
Prisoners under sentence of death

Number Percent3
All All
racesb White Black Hispanic racesb White Black Hispanic
U.S. total 2,890 1,441 1,185 224 100.0% 100.0% 100.0% 100.0%
Prior felony
convictions
Yes 1,810 878 791 124 67.1% 65.1% 71.5% 59.6%
No 889 471 315 84 32.9 34.9 28.5 40.4
Not reported 191 92 79 16
Prior homicide
convictions
Yes 243 116 108 17 8.6% 8.2% 9.4% 7.8%
No 2,576 1,293 1,046 200 91.4 91.8 90.6 92.2
Legal status at time
of capital offense
Charges pending 175 95 64 13 6.8% 7.4% 6.1% 6.6%
Probation 251 124 104 20 9.8 9.6 10.0 10.2
Parole 518 216 245 53 20.2 16.9 23.4 26.9
Prison escapee 42 25 13 3 1.6 1.9 1.2 1.5
Prison inmate 61 31 27 3 2.4 2.4 2.6 1.5
Other status 31 51 14 1 1.2 1.2 1.3 0.5
None 1,487 779 580 104 58.0 60.6 55.4 52.8
Percentages are based on those offenders for whom data were reported.
Includes whites, blacks, Hispanics, and persons of other races.
So it is far from obvious that this large fraction consists of hardened offenders who
deserve to die if anyone does. Nor does the BJS report information about the mental
condition—retardation or brain damage, for example—of those admitted to and
imprisoned on death row. Most important, we have no basis for comparing the
prior criminal history of those on death row with that of the thousands of other
murderers convicted in death penalty states but sentenced to prison terms. As a
result, it is impossible to paint in uniformly dark colors the three thousand men
and women now under death sentence. For all we know, there are no important
relevant demographic or criminogenic differences between the murderers sentenced
to death and the murderers sentenced to prison.
Several other studies are worth at least brief notice. In one, covering seven states
(four of them abolitionist), one out of five murderers released in the late 1970s
was returned to prison for some cause or other (not necessarily criminal homicide).
This was the lowest rate of return for any class of prisoner convicted for a violent
felony and later released.4 Another study showed that among all state-convicted
murderers released in 1983, 6.6 percent were returned to prison within three years
for another murder, 2.8 percent were returned on a rape conviction, 2.9 percent for
robbery, and 17 percent for assault.5 Another 1987 study covering "young parol-
ees" showed that of those released after a conviction of murder, within six years
after their release 70 percent had been rearrested, 25 percent reconvicted of a new
crime, and 22 percent returned to prison.6 (No information was reported on the
kinds of crimes for which these offenders were arrested, convicted, and reincar-
cerated.)
The most recent research shows roughly the same pattern. Among released fel-
ons generally during the years 1986-89, 21 percent of all the released murderers
were arrested in connection with subsequent felonies as follows: 5 percent were
arrested for another murder, 2 percent for assault, and less than 1 percent each for
rape or robbery.7 (What percentage of these arrests led to convictions and prison
or other sentences, we are not informed.)
Finally, we learn from the National Corrections Reporting Program, conducted
by the BJS,8 that in three recent years (1986, 1988, 1991) persons released after
imprisonment for some form of criminal homicide, and the subset of those released
after imprisonment for murder, were judged to have an "unsuccessful" release (a
term not explained by the BJS but presumably including parole violations as well
as rearrests for new felonies) in numbers as follows:
Released Released
Year Homicide Offenders Murder Offenders
1986 244 98
1988 425 173
1991 362 113
All the data reviewed here agree on two things: Some offenders, returned to the
general public after years served in prison for murder, do murder again. Perhaps
it is more surprising that the great majority do not. Some would say that one
released murderer who murders again is one too many. But whether the percentage
who do murder again could be significantly reduced by a radically different regime
behind bars in the first place, or by better supervision after release, is difficult to
say. Parole and release authorities will make errors, releasing some who are dan-
gerously violent (and failing to release others who have long since ceased to be
dangerous); but so will trial courts err, convicting some charged with murder who
are in fact innocent (and acquitting others who are guilty). It is very difficult to
imagine how society could manage without either a policy of prison release or the
institution of criminal trial courts, and so we seem to be condemned to run at least
some kinds of terrible risks to some degree.
Life Imprisonment
If a jurisdiction abolishes the death penalty, what alternative punishment does it

enforce? At present and for two centuries past, the only alternative worth consid-
ering has been deprivation of liberty through some form of imprisonment. Terms
and conditions of imprisonment vary enormously, of course, and when opponents
of the death penalty say they favor "life imprisonment," they often encounter the
objection that "life imprisonment" rarely means life imprisonment. Indeed, today
it rarely does.
In 1991 the median sentence for those in prison for a conviction of murder was
natural life—but the mean sentence was less than fourteen years.9 Unless those
sentenced to death were rather elderly (and they were not), this meant that many
would be released with some years of adult life ahead of them. In 1992, persons
sentenced to prison for murder were sentenced to a minimum median term of
twenty years, and to a maximum median term of fifty years.10 (Life prison terms
were factored into this figure.) Also in 1992 the estimated time that would actually
be served by such prisoners was about nine years.11 Both the maximum median
sentence and the sentence actually served as estimated in 1992 show slight increases
over comparable data reported for 1988.12
But what about the sentences actually served by such prisoners? In 1991 persons
convicted of murder (excluding other kinds of criminal homicide) served a median
of 78 months and a mean of 93 months—6.5 years and 8.7 years, respectively.13
Elsewhere we learn that a person convicted on one charge of criminal homicide is
likely to serve on the average 11.2 years in prison.14 Yet another source15 tells us
that in 1991, more than six thousand persons convicted of some form of criminal
homicide were released from prison, having actually served time as follows:
Months Served Percent Released
1-6 4.6
7-12 7.4
13-24 16.2
25-36 13.2
37-48 10.5
49-60 8.5
61-84 12.9
85-119 12.0
120 or more 14.7
This distribution is roughly what was reported for immediately prior years. It shows
that among those convicted of murder who serve time in prison and are released,
many serve very little time at all: Roughly 10 percent serve no more than a year,
another 40 percent serve no more than 4 years, and all but 15 percent serve no
more than 10 years. (The source for all these data, the BJS, leaves us to speculate
over the causes and reasons for these many early releases.) The most recent infor-
mation (1995) informs us that persons released in 1992 from a prison sentence for
murder served an average of 14 years, not quite half of the term to which they had
been sentenced.16
Recent research shows that most Americans believe convicted murderers spend
only about 7 years in prison—unless they are sentenced to death (Bowers and
Steiner 1996:4, 17). Not surprisingly, the public views such a short period of pun-
ishment with considerable disapproval and as an unsatisfactory alternative to exe-
cution. But, as the data from BJS show, this perceived punishment in prison is just
about half the actual average time served in the 1990s by convicted murderers in
American prisons. Whether a majority of the public would regard life sentences
averaging 14 years actually served as appropriate for those convicted of second-
degree murder (perhaps as a result of plea bargaining) is not known.
But that gap between public misperception and the reality is of far less signif-
icance than a more fundamental confusion over the terms of imprisonment to which
first-degree murderers are now typically sentenced. We must distinguish carefully
between (a) the time served by first-degree murderers sentenced to life under laws
that permit parole eligibility after 10 or 20 years, and (b) the time served by such
offenders sentenced under the newer life-without-parole (LWOP) statutes. Increas-
ingly, persons convicted of first degree murder but not sentenced to death are
sentenced to LWOP. (Persons convicted of second degree murder may be given a
life sentence without being denied parole eligibility.) The BJS statistics discussed
in this chapter combine into one set of numbers the time served by these two
classes of convicted murderers. Unfortunately, at present there is no information
available to inform the public about the time being served by convicted murderers
not sentenced to death but sentenced to LWOP. As a result, the myth remains that
"they all get out and can murder again" and that talk of "life imprisonment" as
an alternative to the death penalty lacks truth in advertising. As of 1994, twenty-
six death penalty states both offer the jury LWOP as a sentencing option for a
defendant convicted of capital murder and empower only the jury to decide on the
sentence in capital cases. (In four states, sentencing is done by the trial judge or a
panel of judges; in seven death penalty states there is no LWOP alternative avail-
able.)17 How effectively is the LWOP alternative taken into account by capital trial
juries? No information is available enabling us to compare the percentage of prison
sentences to death sentences in these states that have the LWOP alternative with
the other capital jurisdictions that do not have LWOP. (It seems plausible that the
percentage would be higher in the LWOP states.) On the other hand, we know that
prior to 1994, seventeen of the LWOP states permitted the jury to be informed of
the fact that their state law provides for sentencing murder convicts to prison with-
out any future eligibility for parole; three of these states require that the jury be so
informed. In South Carolina, Pennsylvania, and Virginia, however, law expressly
prohibits the judge or defense counsel from instructing capital juries on this point.18
Where the future dangerousness of the defendant is an issue in the jury's decision
whether to sentence to death or to life, information about parole eligibility and
ineligibility for a defendant not sentenced to death might well make a crucial
difference in the jury's choice of sentence. Accordingly, in 1994, in Simmons v.
South Carolina, the Supreme Court held that juries must be given this information
(two justices, Antonin Scalia and Clarence Thomas, dissented).
Notes
1. Sourcebook of Criminal Justice Statistics 1990, p. 402.
2. Sourcebook of Criminal Justice Statistics 1993, p. 665, Table 6.106. Numbers sig-
nificantly at variance with these (reporting a total of 151 prisoners for 1992-93) were dis-
cussed in Hallinan 1995, but no breakdown by state was provided.
3. See BJS reports, "Capital Punishment 1992," p. 8, Table 8; "Capital Punishment
1991," p. 11, Table 8; and "Capital Punishment 1990," p. 9, Table 8.
4. BJS, "Returning to Prison," 1984, p. 3, Table 5.
5. BJS, "Recidivism of Prisoners Released in 1983," p. 6, Table 9.
6. BJS, "Report to the Nation on Crime and Justice," 2d ed., 1988, p. 111.
7. BJS, "Recidivism of Felons on Probation, 1986-1989," p. 6, Table 4.
8. BJS, "National Corrections Reporting Program 1986," p. 45, Table 4-9; "National
Corrections Reporting Program 1988," p. 46, Table 4-7, "National Corrections Reporting
Program, 1991," p. 48, Table 4-9.
9. BJS, "Survey of State Prison Inmates, 1991," p. 7.
10. BJS, "National Corrections Reporting Program, 1992," p. 29, Table 1-21. However,
the BJS report "Felony Sentences in State Courts, 1992," p. 3, Table 3, reports that twenty
years was the maximum mean term for life sentence prisoners (an unspecified number of
whom were convicted of crimes other than murder).
11. BJS, "Survey of State Prison Inmates, 1992," p. 4, Table 4.
12. BJS, "Felony Sentences in State Courts, 1988," p. 3, Table 3-4.
13. Sourcebook of Criminal Justice Statistics 1993, p. 650, Table 6.90. This is roughly
the same length of sentence reported by the National Council on Crime and Delinquency;
see Jones and Austin 1993:5, Table 3.
14. BJS, "Report to the Nation on Crime and Justice," 2d ed., 1988, p. 97.
15. BJS, "National Corrections Reporting Program 1991," p. 27, Table 2-4.
16. BJS, "Prison Sentences and Time Served," April 1995, p. 1.
17. Simmons v. South Carolina (1994), note 7, slip opinion for the Court of Justice
Blackmun. For a general discussion of LWOP, see Wright 1990.
18. Ibid.
PART IV
The Controversy over

Constitutionality
The broad outlines of the criminal justice system are initially defined by the leg-
islatures—state and federal—and the statutes they enact to construct the criminal
and penal code. But these statutory provisions are subject to review, revision, and
repeal by litigation on the grounds that the statutes violate some constitutional
provision protecting the rights of the accused, the arrested, the convicted, or the
punished. Paramount among these rights are those specified in the Bill of Rights,
adopted and incorporated into the nation's Constitution in 1791 and amplified in
the subsequent two centuries by the Civil War amendments (1868) and thousands
of decisions from the federal courts. Three of these constitutional rights in particular
bear on the death penalty: the requirement of "due process of law" (Fifth Amend-
ment), the requirement of "equal protection of the laws" (Fourteenth Amendment),
and, above all, the prohibition of "cruel and unusual punishments" (Eighth
Amendment).
Between the time these constitutional protections were adopted and the middle
of this century—some 160 years—no serious effort was made to challenge the
constitutionality of capital punishment as such. During these years challenges were
made to every method of execution then in use (hanging, electrocution, firing
squad, lethal gas) but to no avail.1 The efforts were largely perfunctory, the argu-
ments and evidence of the appellants meager, and the courts unsympathetic. Con-
stitutional attacks had also been directed in particular capital cases against the
procedures followed in securing a defendant's conviction. Such efforts occasionally
were rewarded with a new trial for the defendant, sometimes followed by the
prosecution's decision not to pursue the case any further.2 But as of 1965 no
constitutional challenge had been mounted directly against the death penalty itself;
such a challenge would have had to argue that, inherently and unavoidably, a
sentence of death violated "due process of law" or the "equal protection of the
laws" or, most ominously, amounted to a "cruel and unusual punishment." Not
until 1961 did any commentator seriously make such an argument in print; that
pioneering effort was made by Los Angeles civil liberties attorney Gerald H. Got-
tlieb.3
The first hint that the Supreme Court might consider the momentous question
of the constitutionality of the death penalty came two years later, in a dissent to a
183
184 The Controversy over Constitutionality
denial of certiorari in the case of Rudolph v. Alabama (1963).4 Justice Arthur J.

Goldberg, joined by Justices William O. Douglas and William J. Brennan Jr., ques-
tioned whether capital punishment was constitutionally permissible for the crime
of rape—a not implausible question to raise during the height of the civil rights
movement, given that most of those sentenced to death for rape were black men
whose victims were white women. The Goldberg dissent caught the attention of
many opponents of capital punishment. It was especially welcome to the lawyers
for the LDF, some of whom had long believed that a full-scale attack on the death
penalty for rape, rather than piecemeal, case-by-case litigation, was the best way
to protect the interests of its African-American clientele—given that statutory re-
peal by racist state legislatures was wholly out of the question.5
In 1965 the LDF opened its attack on the constitutionality of the death penalty
in the Arkansas rape case of Maxwell v. Bishop. Substantial empirical evidence
was marshaled on behalf of petitioner William L. Maxwell, a black male convicted
of raping a white woman, to show that black-on-white rape cases in Arkansas had
a disturbing likelihood of resulting in a death sentence and execution, whereas this
outcome was very unlikely in the other possible racial combinations of offender
and victim—and completely unheard of in white-on-black rape cases. Maxwell's
LDF attorneys argued that although the Arkansas capital statutes as enacted may
have been color-blind, the law as administered was regularly and intentionally used
to discriminate against black defendants and so violated their constitutional rights
to "due process of law" and "equal protection of the laws." No qualified scholar
who has examined this research has disputed its findings that racism deeply infected
the administration of the death penalty for rape.6
The argument failed to persuade the Arkansas Supreme Court, the federal district
court, and the federal circuit court of appeals, however. Writing for the latter, Judge
Harry A. Blackmun (who would join the Supreme Court six years later) argued
that a purely statistical argument showing racial disparities in sentencing was in-
sufficient to establish intentional discrimination, and only intentional discrimination
in criminal cases is properly condemned and remedied by the courts. This was the
first dramatic indication of the differences between the reasoning of social scientists
and of judges when confronted with evidence of racial bias hi the criminal justice
system.7 The case was eventually pressed to the Supreme Court, but the Court
agreed to consider only procedural issues (as it turned out, Maxwell's death sen-
tence was nullified on grounds that made no important new constitutional law).8
Even before Maxwell's case was settled, the LDF had broadened its campaign
by securing a court order in 1967 to suspend all executions in Florida, then in
California, and eventually in all death penalty jurisdictions, on the grounds that the
nation's death penalty system was effectively under fundamental constitutional re-
view by the federal courts. The focus of the attack on the death penalty had also
expanded to include not only those sentenced to death for rape but also the far
greater number of those sentenced to death for murder. The initial challenges were
wholly procedural and were marked by some successes (Witherspoon v. Illinois,
1968, and Ralph v. Warden, 1970) and some defeats (McGautha v. California and
Crampton v. Ohio, both in 1971). Together, these cases set the stage for the mo-
The Controversy over Constitutionality 185
mentous argument in 1971-72 over whether the death penalty was in violation of
the "cruel and unusual punishments" prohibition of the Eighth Amendment.
As the Supreme Court was weighing its decision on this issue, the California
Supreme Court struck down that state's death penalty as a "cruel or unusual pun-
ishment" in violation of the state constitution (Athens v. California, 1972). Five
months later, in a deeply divided five-to-four decision, the Supreme Court in Fur-
man v. Georgia held that the death penalty throughout the nation, as then admin-
istered, violated the Eighth and Fourteenth Amendments. Reprinted here from the
more than two hundred pages of opinions by the nine justices are excerpts from
the text of only one of the concurring opinions, by Justice William Brennan Jr.
(see chapter 12). Brennan's opinion is important for two reasons: It was at the time
and has remained since the most original analytic argument offered by any member
of the Supreme Court for construing the "cruel and unusual punishments" clause
of the Eighth Amendment (and for judging the death penalty in violation of that
prohibition as well). Also, Brennan's argument was aimed not only at the cases
before the Court but at any possible future cases; if Brennan was right, the death
penalty in our society was per se unconstitutional no matter how it was adminis-
tered, no matter how or on whom it was inflicted, and no matter for what crime.9
Only Justice Thurgood Marshall concurred with Brennan's sweeping and com-
prehensive conclusion in Furman; Justice Douglas agreed with Brennan and Mar-
shall that the Georgia statute and others like it were unconstitutional, but he
reserved for another day the question whether the death penalty per se was uncon-
stitutional. As a consequence, there would have been no majority of the Court
against the death penalty in this case were it not for the more cautious reasoning
of two other members, Justices Byron R. White and Potter Stewart. Their votes
and voice were crucial. Stewart argued (much as did White) that since "death is
different"—different from all other punishments in its deprivation and finality—
the federal courts must be prepared to impose a higher standard on death sentencing
practices under state and federal law (subsequently called "super due process")10
so that the then-current arbitrariness of death sentences and executions would be
brought to an end. While this argument sufficed to dispose of the cases before the
Court, it did not indicate how Stewart (and White) would view future death penalty
cases, if any, and whether in such cases they would join again with those who
opposed the death penalty on constitutional grounds.
Four years later, in 1976, after the hundreds of pre-1972 death row prisoners
had been resentenced to life imprisonment and most state legislatures had enacted
new death penalty statutes in an effort to conform to the standards imposed by the
Furman ruling, the Court faced the question whether these new statutes were con-
stitutionally permissible. In the leading case of Gregg v. Georgia, the Court by a
majority of seven to two declared they were. Only Justices Brennan and Marshall
dissented, as they would for the rest of their careers on the Court in every case
where the majority upheld the death penalty.11 Justice Stewart not only defected to
the other side, he wrote the plurality opinion for the Court in Gregg; excerpts from
that opinion are reprinted here as chapter 13.12 In two companion cases decided
on the same day (Proffitt v. Florida and Jurek v. Texas), the Court gave its impri-
matur to two other kinds of new capital statutes. In retrospect, one can see that the
decisions in these three cases settled for the foreseeable future the constitutionality
of capital punishment: It was not, per se, unconstitutional under the Eighth and
Fourteenth Amendments.
As time would show, Georgia's new death penalty statute proved to be the
model for most legislative reenactments of the death penalty. Three features were
paramount in the new Georgia system: a two-phase trial system, the first phase to
settle the issue of the defendant's guilt and the second to settle the question of
sentence; a statutory list of *'aggravating" circumstances and another list of "mit-
igating* ' circumstances on the basis of which the jury would make its sentencing
decision (death or life in prison) in each case; and automatic review by the state
supreme court of every death sentence and the underlying conviction.13 The new
Georgia law also required the state supreme court to evaluate each death sentence
by reference to what other Georgia trial courts were doing in other death penalty
cases—so-called proportionality review—a feature of Georgia law that many other
states adopted. (Whether such review is in fact carried out in meaningful ways,
and even what such ways might be, has received much scholarly attention. The
courts, however, have proved relatively indifferent to this requirement.)14
At the same time that the Court upheld the constitutionality of death penalty
statutes in Georgia, Florida, and Texas, it declared unconstitutional two other kinds
of death penalty statutes, thereby effectively putting one boundary around the future
of capital punishment. In Woodson v. North Carolina, announced on the same day
as Gregg, the Court held that a mandatory death penalty on conviction of murder
was unconstitutional. A year later the Court, reasoning in the same vein, held
unconstitutional a mandatory death penalty for a defendant convicted of killing a
police officer (Roberts v. Louisiana, 1976). A decade after that the Court went so
far as to hold unconstitutional a mandatory death penalty for a defendant convicted
of murder who committed that crime while serving a life sentence for a previous
murder (Sumner v. Shuman, 1987).15 Woodson, Roberts, and Sumner taken together
seem to settle, once and for all, that if a jurisdiction is to have capital punishment
it must give the sentencer—judge or jury—some form of guided discretion to help
decide whether to sentence the offender to death or to imprisonment. The sentence
may not be mandatory.16
Beginning just one year after the decisions in Gregg and Woodson, another
boundary around the scope of the death penalty was imposed by the Supreme Court.
Within a few months after the decision in Furman, several southern states reenacted
discretionary death penalty laws for rape, kidnapping, and other nonhomicidal
crimes, and a few defendants were soon sentenced to death under these laws. In
1977, five years in the wake of Furman and a year after the decisions in Gregg
and Woodson, the Supreme Court ruled in Coker v. Georgia against the constitu-
tionality of even a discretionary death penalty for rape.17 Excerpts from Justice
White's opinion for the Court are reprinted here as chapter 15. A few months later,
in a little-known per curiam decision, the Court nullified the death penalty for
kidnapping (Eberheart v. Georgia, 1977), citing its decision in Coker.
The Controversy over Constitutionality 187
The line of cases stemming from Coker, against the death penalty for nonhom-
icidal crimes, is short and arguably not so strong as the line stemming from Wood-
son against the mandatory death penalty. Waiting to be decided at some future date
is the constitutionality of the death penalty statutes enacted by the states and Con-
gress in the 1990s for various nonhomicidal crimes. With a far less liberal Supreme
Court than in the mid-1970s, it is unclear whether any or all of these statutes would
fall before the Court's judgment, if and when the occasion arises to appeal a death
sentence imposed under them.
Apart from the important ruling in McCleskey v. Kemp (1987), discussed in
chapter 20, the Supreme Court has had little new to say since 1976 on whether
the death penalty is a "cruel and unusual punishment." The matter seems to be
settled, at least for the present and immediate future. However, it is not solely
for the Court to say, even if its pronouncements have final authority so far as the
law is concerned. Interestingly enough, the strongest and most detailed argument
upholding the constitutional permissibility of the death penalty is to be found not
in any of the Court's own opinions but in the book Death Penalties: The Su-
preme Court's Obstacle Course (1982), by legal scholar Raoul Berger. His thor-
ough argument still serves as the definitive pronouncement on the subject for
those who share his views about the proper limits on constitutional interpretation,
the narrow role of the federal courts in regulating state criminal practices, and
the silence of the Eighth Amendment on the issue of capital punishment. The
argument of this book has not gone uncriticized,18 however, and out of those
criticisms many valuable insights emerged—whatever one may think about the
ultimate merits of Berger's argument. One of the best of these critical reviews
was written by New York University law professor David A. J. Richards; it is
reprinted here as chapter 16. Richards's review essay is followed by a short es-
say of my own in chapter 17 (an abbreviated version of an argument that ap-
pears elsewhere),19 in which I offer an interpretation of the "cruel and unusual
punishments" clause that draws upon moral considerations rather different from
those that dominate the thinking of legal scholars on this clause, thus sketching
another route to the conclusion I share with Justices Brennan and Marshall and
Professor Richards.
Throughout the period of our constitutional debate over the death penalty, the
rest of the world—especially European nations and their governments—have been
struggling to incorporate into their fundamental law recognition and protection of
human rights. For these purposes they have used principally the declarations, cov-
enants, and protocols issued by the United Nations and inspired by the Universal
Declaration of Human Rights (1948). Although these international agreements have
not been interpreted by our courts to have the force of constitutional law in the
United States, it is nonetheless instructive to look at the legal status of the death
penalty in this country from the vantage point that current international law pro-
vides. To that end I have supplied a note in Chapter 18 that briefly traces the
growing tension between our law tolerating the death penalty and international law
favoring its abolition.
Notes
1. For details on these cases, see Berkson 1975.
2. See especially Moore v. Dempsey, 261 U.S. 86 (1923); Powell v. Alabama, 287 U.S.
45 (1932).
3. See Gottlieb 1961
4. Rudolph v. Alabama, 375 U.S. 889 (1963); see Goldberg 1986; Marsel 1986; see
also the discussion in Dershowitz 1982:305-10.
5. For a full account of this campaign, see Meltsner 1973; see also Wolfe 1973; Bedau
1977.
6. See Wolfgang and Riedel 1973, reprinted in Bedau 1982; Wolfgang 1974.
7. The topic has received extensive discussion by social scientists, beginning with
Wolfgang 1974; for recent discussions see Ellsworth 1988; Acker 1993; Haney and Logan
1994.
8. See Maxwell v. Bishop, 398 U.S. 262 (1970).
9. I have discussed some features of Justice Brennan's argument in Furman in Bedau
1992b and 1996a.
10. See Radin 1980.
11. For the most recent remarks on the death penalty by Justice Brennan and Justice
Marshall, apart from their dissents in capital cases reaching the Court, see Brennan 1986,
1987, 1994; T. Marshall 1986. For general discussion of the death penalty jurisprudence of
Justices Brennan and Marshall, see Mello 1996, Bigel 1994, and Steiker 1993b.
12. I have criticized Justice Stewart's opinion in Gregg in Bedau 1985a.
13. Even today, not all states provide for automatic review of a death sentence conviction
and sentence. "Arkansas ha[s] no specific provisions for automatic review, and the issue
[i]s in litigation in South Carolina.... Idaho, Indiana, Montana, and Tennessee required
review of the sentence only. In Idaho, review of the conviction had to be appealed or
forfeited. In Indiana, a defendant could waive review of the conviction." BJS, "Capital
Punishment 1993," p. 6.
14. As of 1984, "over thirty States were required either by statute or judicial decision
[to afford] some form of comparative proportionality review before any death sentence may
be carried out." Pulley v. Harris, 465 U.S. 37 (1984) at 71, citing Baldus, Pulaski, and
Woodworth 1980:2-3. It is doubtful, however, whether state supreme courts take this re-
quirement seriously, or even know what doing so would involve. The principal exception
may be New Jersey; see Rodriguez, Perlin, and Apicella 1984; Bienen et al. 1988:78-81;
Sullivan 1995.
15. For a discussion of this issue published prior to the ruling in Sumner, see Acker
1985.
16. See in general Poulos 1986.
17. See Goldberg 1978; Dorin 1981.
18. See also Bedau 1983; Gillers 1983; Kalis 1983; Radin 1983; Foley 1984; Cottrol
1985:380-86. For a more sympathetic review, see McDowell 1983.
19. See Bedau 1985b, 1990a, 1992b.
12
Furman v. Georgia, 1972: The Death

Penalty as Administered Is
Unconstitutional
Mr. Justice Brennan, concurring.... We have very little evidence of the Framers'
intent in including the Cruel and Unusual Punishments Clause among those re-
straints upon the new Government enumerated in the Bill of Rights....
[T]he Framers were well aware that the reach of the Clause was not limited to
the proscription of unspeakable atrocities. Nor did they intend simply to forbid
punishments considered "cruel and unusual" at the time. The "import" of the
Clause is, indeed, "indefinite," and for good reason. A constitutional provision
"is enacted, it is true, from an experience of evils, but its general language should
not, therefore, be necessarily confined to the form that evil had theretofore taken.
Time works changes, brings into existence new conditions and purposes. Therefore
a principle to be vital must be capable of wider application than the mischief which
gave it birth." Weems v. United States, 217 U.S., at 373
There are ... four principles by which we may determine whether a particular
punishment is "cruel and unusual." The primary principle, which I believe supplies
the essential predicate for the application of the others, is that a punishment must
not by its severity be degrading to human dignity. The paradigm violation of this
principle would be the infliction of a torturous punishment of the type that the
Clause has always prohibited. Yet "[i]t is unlikely that any State at this moment
in history," Robinson v. California, 370 U.S., at 666, would pass a law providing
for the infliction of such a punishment. Indeed, no such punishment has ever been
before this Court. The same may be said of the other principles. It is unlikely that
this Court will confront a severe punishment that is obviously inflicted in wholly
arbitrary fashion; no State would engage in a reign of blind terror. Nor is it likely
that this Court will be called upon to review a severe punishment that is clearly
and totally rejected throughout society; no legislature would be able even to au-
thorize the infliction of such a punishment. Nor, finally, it is likely that this Court
will have to consider a severe punishment that is patently unnecessary; no State
Reprinted from the concurring opinion in Furman v. Georgia, 408 U.S. 238 (1972) by Justice William
J. Brennan Jr. Substantial portions of the opinion have been omitted, and the remaining footnotes
renumbered.
189
today would inflict a severe punishment knowing that there was no reason whatever
for doing so. In short, we are unlikely to have occasion to determine that a pun-
ishment is fatally offensive under any one principle.
Since the Bill of Rights was adopted, this Court has adjudged only three pun-
ishments to be within the prohibition of the Clause. See Weems v. United States,
217 U.S. 349 (1910) (12 years in chains at hard and painful labor); Trop v. Dulles,
356 U.S. 86 (1958) (expatriation); Robinson v. California, 370 U.S. 660 (1962)
(imprisonment for narcotics addiction). Each punishment, of course, was degrading
to human dignity, but of none could it be said conclusively that it was fatally
offensive under one or the other of the principles. Rather, these "cruel and unusual
punishments" seriously implicated several of the principles, and it was the appli-
cation of the principles in combination that supported the judgment. That, indeed,
is not surprising. The function of these principles, after all, is simply to provide
means by which a court can determine whether a challenged punishment comports
with human dignity. They are, therefore, interrelated, and in most cases it will be
their convergence that will justify the conclusion that a punishment is "cruel and
unusual." The test, then, will ordinarily be a cumulative one: If a punishment is
unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it
is substantially rejected by contemporary society, and if there is no reason to believe
that it serves any penal purpose more effectively than some less severe punishment,
then the continued infliction of that punishment violates the command of the Clause
that the State may not inflict inhuman and uncivilized punishments upon those
convicted of crimes.
. . . I will analyze the punishment of death in terms of the principles set out
above and the cumulative test to which they lead: It is a denial of human dignity
for the State arbitrarily to subject a person to an unusually severe punishment that
society has indicated it does not regard as acceptable, and that cannot be shown to
serve any penal purpose more effectively than a significantly less drastic punish-
ment. Under these principles and this test, death is today a "cruel and unusual"
punishment.
I. Death is a unique punishment in the United States. In a society that so strongly

affirms the sanctity of life, not surprisingly the common view is that death is the
ultimate sanction. This natural human feeling appears all about us. There has been
no national debate about punishment, in general or by imprisonment, comparable
to the debate about the punishment of death. No other punishment has been so
continuously restricted.... And those States that still inflict death reserve it for the
most heinous crimes. Juries, of course, have always treated death cases differently,
as have governors exercising their commutation powers. Criminal defendants are
of the same view.... This Court, too, almost always treats death cases as a class
apart. And the unfortunate effect of this punishment upon the functioning of the
judicial process is well known; no other punishment has a similar effect.
The only explanation for the uniqueness of death is its extreme severity. Death
is today an unusually severe punishment, unusual in its pain, in its finality, and in
The Death Penalty as Administered Is Unconstitutional 191
its enormity. No other existing punishment is comparable to death in terms of

physical and mental suffering....
The unusual severity of death is manifested most clearly in its finality and
enormity. Death, in these respects, is in a class by itself. Expatriation, for example,
is a punishment that "destroys for the individual the political existence that was
centuries in the development," that "strips the citizen of his status in the national
and international political community," and that puts "[h]is very existence" in
jeopardy. Expatriation thus inherently entails "the total destruction of the indivi-
dual's status in organized society." [Trop v. Dulles, 356 U.S., at 101.] "In short,
the expatriate has lost the right to have rights." Id., at 102. Yet, demonstrably,
expatriation is not "a fate worse than death." Id., at 125.... Although death, like
expatriation, destroys the individual's "political existence" and his "status in or-
ganized society," it does more, for, unlike expatriation, death also destroys "[h]is
very existence." There is, too, at least the possibility that the expatriate will in the
future regain "the right to have rights." Death forecloses even that possibility.
Death is truly an awesome punishment. The calculated killing of a human being
by the State involves, by its very nature, a denial of the executed person's humanity.
The contrast with the plight of a person punished by imprisonment is evident. An
individual in prison does not lose "the right to have rights." A prisoner retains,
for example, the constitutional rights to the free exercise of religion, to be free of
cruel and unusual punishments, and to treatment as a "person" for purposes of
due process of law and the equal protection of the laws. A prisoner remains a
member of the human family. Moreover, he retains the right of access to the courts.
His punishment is not irrevocable. Apart from the common charge, grounded upon
the recognition of human fallibility, that the punishment of death must inevitably
be inflicted upon innocent men, we know that death has been the lot of men whose
convictions were unconstitutionally secured in view of later, retroactively applied,
holdings of this Court. The punishment itself may have been unconstitutionally
inflicted, see Witherspoon v. Illinois, 391 U.S. 510 (1968), yet the finality of death
precludes relief. An executed person has indeed "lost the right to have rights." As
one nineteenth century proponent of punishing criminals by death declared, "When
a man is hung, there is an end of our relations with him. His execution is a way
of saying, 'You are not fit for this world, take your chance elsewhere.' "*
In comparison to all other punishments today, then, the deliberate extinguish-
ment of human life by the State is uniquely degrading to human dignity. I would
not hesitate to hold, on that ground alone, that death is today a "cruel and unusual"
punishment, were it not that death is a punishment of longstanding usage and
acceptance in this country. I therefore turn to the second principle—that the State
may not arbitrarily inflict an unusually severe punishment.
n. The outstanding characteristic of our present practice of punishing criminals by

death is the infrequency with which we resort to it. The evidence is conclusive that
death is not the ordinary punishment for any crime....
When a country of over 200 million people inflicts an unusually severe punish-
ment no more than 50 times a year, the inference is strong that the punishment is
not being regularly and fairly applied. To dispel it would indeed require a clear
showing of nonarbitrary infliction.
Although there are no exact figures available, we know that thousands of mur-
ders and rapes are committed annually in States where death is an authorized
punishment for those crimes. However the rate of infliction is characterized—as
"freakishly" or "spectacularly" rare, or simply as rare—it would take the purest
sophistry to deny that death is inflicted in only a minute fraction of these cases.
How much rarer, after all, could the infliction of death be?
When the punishment of death is inflicted in a trivial number of the cases in
which it is legally available, the conclusion is virtually inescapable that it is being
inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The States
claim, however, that this rarity is evidence not of arbitrariness, but of informed
selectivity: Death is inflicted, they say, only in "extreme" cases.
Informed selectivity, of course, is a value not to be denigrated. Yet presumably
the States could make precisely the same claim if there were ten executions per
year, or five, or even if there were but one. That there may be as many as 50 per
year does not strengthen the claim. When the rate of infliction is at this low level,
it is highly implausible that only the worse criminals or the criminals who commit
the worst crimes are selected for this punishment. No one has yet suggested a
rational basis that could differentiate in those terms the few who die from the many
who go to prison. Crimes and criminals simply do not admit of a distinction that
can be drawn so finely as to explain, on that ground, the execution of such a tiny
sample of those eligible. Certainly the laws that provide for this punishment do not
attempt to draw that distinction; all cases to which the laws apply are necessarily
"extreme." Nor is the distinction credible in fact....
Furthermore, our procedures in death cases, rather than resulting in the selection
of "extreme" cases for this punishment, actually sanction an arbitrary selection.
For this Court has held that juries may, as they do, make the decision whether to
impose a death sentence wholly unguided by standards governing that decision.
McGautha v. California, 402 U.S. 183, 196-208 (1971). In other words, our pro-
cedures are not constructed to guard against the totally capricious selection of
criminals for the punishment of death.
in.... From the beginning of our Nation, the punishment of death has stirred acute
public controversy. Although pragmatic arguments for and against the punishment
have been frequently advanced, this longstanding and heated controversy cannot
be explained solely as the result of differences over the practical wisdom of a
particular government policy. At bottom, the battle has been waged on moral
grounds. The country has debated whether a society for which the dignity of the
individual is the supreme value can, without a fundamental inconsistency, follow
the practice of deliberately putting some of its members to death. In the United
States, as in other nations of the western world, ' 'the struggle about this punishment
has been one between ancient and deeply rooted beliefs in retribution, atonement
or vengeance on the one hand, and, on the other, beliefs in the personal value and
dignity of the common man that were born of the democratic movement of the
eighteenth century, as well as beliefs in the scientific approach to an understanding
of the motive forces of human conduct, which are the result of the growth of the
sciences of behavior during the nineteenth and twentieth centuries."2 It is this
essentially moral conflict that forms the backdrop for the past changes in and the
present operation of our system of imposing death as a punishment for crime....
The progressive decline in, and the current rarity of, the infliction of death
demonstrate that our society seriously questions the appropriateness of this punish-
ment today. The States point out that many legislatures authorize death as the
punishment for certain crimes and that substantial segments of the public, as re-
flected in opinion polls and referendum votes, continue to support it. Yet the avail-
ability of this punishment through statutory authorization, as well as the polls and
referenda, which amount simply to approval of that authorization, simply under-
scores the extent to which our society has in fact rejected this punishment. When
an unusually severe punishment is authorized for wide-scale application but not,
because of society's refusal, inflicted save in a few instances, the inference is
compelling that there is a deepseated reluctance to inflict it. Indeed, the likelihood
is great that the punishment is tolerated only because of its disuse. The objective
indicator of society's view of an unusually severe punishment is what society does
with it, and today society will inflict death upon only a small sample of the eligible
criminals. Rejection could hardly be more complete without becoming absolute.
At the very least, I must conclude that contemporary society views this punishment
with substantial doubt.
IV. The final principle to be considered is that an unusually severe and degrading
punishment may not be excessive in view of the purposes for which it is inflicted.
This principle, too, is related to the others. When there is a strong probability that
the State is arbitrarily inflicting an unusually severe punishment that is subject to
grave societal doubts, it is likely also that the punishment cannot be shown to be
serving any penal purpose that could not be served equally well by some less severe
punishment.
The States' primary claim is that death is a necessary punishment because it
prevents the commission of capital crimes more effectively than any less severe
punishment....
. . . We are not presented with the theoretical question whether under any imag-
inable circumstances the threat of death might be a greater deterrent to the com-
mission of capital crimes than the threat of imprisonment. We are concerned with
the practice of punishing criminals by death as it exists in the United States today.
Proponents of this argument necessarily admit that its validity depends upon the
existence of a system in which the punishment of death is invariably and swiftly
imposed. Our system, of course, satisfies neither condition. A rational person con-
templating a murder or rape is confronted, not with the certainty of a speedy death,
but with the slightest possibility that he will be executed in the distant future. The
risk of death is remote and improbable; in contrast, the risk of long-term impris-
onment is near and great. In short, whatever the speculative validity of the as-
sumption that the threat of death is a superior deterrent, there is no reason to believe
that as currently administered the punishment of death is necessary to deter the
commission of capital crimes
There is, however, another aspect to the argument that the punishment of death
is necessary for the protection of society. The infliction of death, the States urge,
serves to manifest the community's outrage at the commission of the crime. It is,
they say, a concrete public expression of moral indignation that inculcates respect
for the law and helps assure a more peaceful community. Moreover, we are told,
not only does the punishment of death exert this widespread moralizing influence
upon community values, it also satisfies the popular demand for grievous condem-
nation of abhorrent crimes and thus prevents disorder, lynching, and attempts by
private citizens to take the law into their own hands.
The question, however, is not whether death serves these supposed purposes of
punishment, but whether death serves them more effectively than imprisonment.
There is no evidence whatever that utilization of imprisonment rather than death
encourages private blood feuds and other disorders. Surely if there were such a
danger, the execution of a handful of criminals each year would not prevent it.
The assertion that death alone is a sufficiently emphatic denunciation for capital
crimes suffers from the same defect. If capital crimes require the punishment of
death in order to provide moral reinforcement for the basic values of the com-
munity, those values can only be undermined when death is so rarely inflicted upon
the criminals who commit the crimes. Furthermore, it is certainly doubtful that the
infliction of death by the State does in fact strengthen the community's moral code;
if the deliberate extinguishment of human life has any effect at all, it more likely
tends to lower our respect for life and brutalize our values. That, after all, is why
we no longer carry out public executions....
There is, then, no substantial reason to believe that the punishment of death, as
currently administered, is necessary for the protection of society. The only other
purpose suggested, one that is independent of protection for society, is retribu-
tion. ...
Obviously, concepts of justice change; no immutable moral order requires death
for murderers and rapists. The claim that death is a just punishment necessarily
refers to the existence of certain public beliefs. The claim must be that for capital
crimes death alone comports with society's notion of proper punishment. As ad-
ministered today, however, the punishment of death cannot be justified as a nec-
essary means of exacting retribution from criminals. When the overwhelming
number of criminals who commit capital crimes go to prison, it cannot be con-
cluded that death serves the purpose of retribution more effectively than impris-
onment. The asserted public belief that murderers and rapists deserve to die is flatly
inconsistent with the execution of a random few. As the history of the punishment
of death in this country shows, our society wishes to prevent crime; we have no
desire to kill criminals simply to get even with them.
In sum, the punishment of death is inconsistent with all four principles: Death
is an unusually severe and degrading punishment; there is a strong probability that
it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and
there is no reason to believe that it serves any penal purpose more effectively than
the less severe punishment of imprisonment. The function of these principles is to
enable a court to determine whether a punishment comports with human dignity.
Death, quite simply, does not....
Notes
1. Stephen, Capital Punishments, 69 Eraser's Magazine 753, 763 (1864).
2. T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the
American Law Institute 15 (1959).
13
Gregg v. Georgia, 1976: The Death

Penalty Is Not Per Se Unconstitutional
Judgment of the Court, and opinion of Mr. Justice Stewart, Mr. Justice Powell,
and Mr. Justice Stevens, announced by Mr. Justice Stewart.... The Georgia stat-
ute, as amended after our decision in Furman v. Georgia, 408 U.S. 238 (1972),
retains the death penalty for six categories of crime: murder, kidnapping for ransom
or where the victim is harmed, armed robbery, rape, treason, and aircraft hijacking.
Ga. Code Ann. §§26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26-3301 (1972).
The capital defendant's guilt or innocence is determined in the traditional manner,
either by a trial judge or a jury, in the first stage of a bifurcated trial.
If trial is by jury, the trial judge is required to charge lesser included offenses
when they are supported by any view of the evidence. Sims v. State, 203 Ga. 668,
47 S.E. 2d 862 (1948). See Under v. State, 132 Ga. App. 624, 625, 208 S.E. 2d
630, 631 (1974). After a verdict, finding, or plea of guilty to a capital crime, a
presentence hearing is conducted before whoever made the determination of guilt.
The sentencing procedures are essentially the same in both bench and jury trials.
At the hearing:
[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and
aggravation of punishment, including the record of any prior criminal convictions and
pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any
prior conviction and pleas: Provided, however, that only such evidence in aggravation
as the State has made known to the defendant prior to his trial shall be admissible.
The judge [or jury] shall also hear argument by the defendant or his counsel and the
prosecuting attorney ... regarding the punishment to be imposed. § 27-2503 (Supp.
1975)
The defendant is accorded substantial latitude as to the types of evidence that he
may introduce. See Brown v. State, 235 Ga. 644, 647-50, 220 S.E. 2d 922, 925-
26 (1975). Evidence considered during the guilt stage may be considered during
the sentencing stage without being resubmitted. Eberheart v. State, 232 Ga. 247,
253, 206 S.E. 2d 12, 17 (1974).
In the assessment of the appropriate sentence to be imposed the judge is also
Reprinted from the plurality opinion in Gregg v. Georgia, 428 U. S. 153 (1976) of Justice Potter Stewart.
Joining in this opinion were Justices Powell and Stevens. Substantial portions of the opinion have been
omitted, and the remaining footnotes renumbered.
196
The Death Penalty Is Not Per Se Unconstitutional 197
required to consider or to include in his instructions to the jury "any mitigating

circumstances or aggravating circumstances otherwise authorized by law and any
of [10] statutory aggravating circumstances which may be supported by the evi-
dence " § 27-2534. l(b) (Supp. 1975). The scope of the nonstatutory aggravat-
ing or mitigating circumstances is not delineated in the statute. Before a convicted
defendant may be sentenced to death, however, except in cases of treason or aircraft
hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond
a reasonable doubt one of the 10 aggravating circumstances specified in the statute.1
The sentence of death may be imposed only if the jury (or judge) finds one of the
statutory aggravating circumstances and then elects to impose that sentence. § 26-
3102 (Supp. 1975). If the verdict is death the jury or judge must specify the ag-
gravating circumstance(s) found. § 27-2534.1 (c) (Supp. 1975). Injury cases, the
trial judge is bound by the jury's recommended sentence. §§ 26-3102, 27-2514
(Supp. 1975).
In addition to the conventional appellate process available in all criminal cases,
provision is made for special expedited direct review by the Supreme Court of
Georgia of the appropriateness of imposing the sentence of death in the particular
case. The court is directed to consider "the punishment as well as any errors
enumerated by way of appeal," and to determine:
1. Whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor, and
2. Whether, in cases other than treason or aircraft hijacking, the evidence
supports the jury's or judge's finding of a statutory aggravating circum-
stance as enumerated in section 27.2534.1 (b), and
3. Whether the sentence of death is excessive or disproportionate to the pen-
alty imposed in similar cases, considering both the crime and the defen-
dant. § 27-2537 (Supp. 1975).
If the court affirms a death sentence, it is required to include in its decision ref-
erence to similar cases that it has taken into consideration. § 27-2537 (e) (Supp.
1975).2
A transcript and complete record of the trial, as well as a separate report by the
trial judge, are transmitted to the court for its use in reviewing the sentence. § 27-
2537 (a) (Supp. 1975). The report is in the form of a 6V2-page questionnaire,
designed to elicit information about the defendant, the crime, and the circumstances
of the trial. It requires the trial judge to characterize the trial in several ways
designed to test for arbitrariness and disproportionality of sentence. Included in the
report are responses to detailed questions concerning the quality of the defendant's
representation, whether race played a role in the trial, and, whether, in the trial
court's judgment, there was any doubt about the defendant's guilt or the appropri-
ateness of the sentence. A copy of the report is served upon defense counsel. Under
its special review authority, the court may either affirm the death sentence or re-
mand the case for resentencing. In cases in which the death sentence is affirmed
there remains the possibility of executive clemency.
... We now consider specifically whether the sentence of death for the crime
of murder is a per se violation of the Eighth and Fourteenth Amendments to the
Constitution. We note first that history and precedent strongly support a negative
answer to this question.
The imposition of the death penalty for the crime of murder has a long history
of acceptance both in the United States and in England. The common-law rule
imposed a mandatory death sentence on all convicted murderers. McGautha v.
California, 402 U.S. 183, 197-98 (1971). And the penalty continued to be used
into the twentieth century by most American States, although the breadth of the
common-law rule was diminished, initially by narrowing the class of murders to
be punished by death and subsequently by widespread adoption of laws expressly
granting juries the discretion to recommend mercy. Id., at 199-200. See Woodson
v. North Carolina, post, at 289-92.
It is apparent from the text of the Constitution itself that the existence of capital
punishment was accepted by the Framers. At the time the Eighth Amendment was
ratified, capital punishment was a common sanction in every State. Indeed, the
First Congress of the United States enacted legislation providing death as the pen-
alty for specified crimes. C. 9, 1 Stat. 112 (1790). The Fifth Amendment, adopted
at the same time as the Eighth, contemplated the continued existence of the capital
sanction by imposing certain limits on the prosecution of capital cases:
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb;... nor be deprived
of life, liberty, or property, without due process of law....
And the Fourteenth Amendment, adopted over three-quarters of a century later,

similarly contemplates the existence of the capital sanction in providing that no
State shall deprive any person of "life, liberty, or property" without due process
of law.
For nearly two centuries, this Court, repeatedly and often expressly, has rec-
ognized that capital punishment is not invalid per se....
. . . And in Trop v. Dulles, 356 U.S., at 99, Mr. Chief Justice Warren, for himself
and three other Justices, wrote:
Whatever the arguments may be against capital punishment, both on moral grounds
and in terms of accomplishing the purposes of punishment... the death penalty has
been employed throughout our history, and, in a day when it is still widely accepted,
it cannot be said to violate the constitutional concept of cruelty.
Four years ago, the petitioners in Furman and its companion cases predicated
their argument primarily upon the asserted proposition that standards of decency
had evolved to the point where capital punishment no longer could be tolerated.
The petitioners in those cases said, hi effect, that the evolutionary process had
come to an end, and that standards of decency required that the Eighth Amendment
be construed finally as prohibiting capital punishment for any crime regardless of
its depravity and impact on society. This view was accepted by two Justices. Three
other Justices were unwilling to go so far; focusing on the procedures by which

convicted defendants were selected for the death penalty rather than on the actual
punishment inflicted, they joined in the conclusion that the statutes before the Court
were constitutionally invalid.
The petitioners in the capital cases before the Court today renew the "standards
of decency" argument, but developments during the four years since Furman have
undercut substantially the assumptions upon which their argument rested. Despite
the continuing debate, dating back to the nineteenth century, over the morality and
utility of capital punishment, it is now evident that a large proportion of American
society continues to regard it as an appropriate and necessary criminal sanction.
The most marked indication of society's endorsement of the death penalty for
murder is the legislative response to Furman. The legislatures of at least 35 States
have enacted new statutes that provide for the death penalty for at least some crimes
that result in the death of another person. And the Congress of the United States,
in 1974, enacted a statute providing the death penalty for aircraft piracy that results
in death. These recently adopted statutes have attempted to address the concerns
expressed by the Court in Furman primarily i. by specifying the factors to be
weighed and the procedures to be followed in deciding when to impose a capital
sentence, or ii. by making the death penalty mandatory for specified crimes. But
all of the post-Furman statutes make clear that capital punishment itself has not
been rejected by the elected representatives of the people.
In the only statewide referendum occurring since Furman and brought to our
attention, the people of California adopted a constitutional amendment that au-
thorized capital punishment, in effect negating a prior ruling by the Supreme Court
of California in People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert, denied,
406 U.S. 958 (1972), that the death penalty violated the California Constitution.
The jury also is a significant and reliable objective index of contemporary values
because it is so directly involved....
. . . The Court has said that "one of the most important functions any jury can
perform in making . . . a selection [between life imprisonment and death for a de-
fendant convicted in a capital case] is to maintain a link between contemporary
community values and the penal system." Witherspoon v. Illinois, 391 U.S. 510,
519 n. 15 (1968). It may be true that evolving standards have influenced juries in
recent decades to be more discriminating in imposing the sentence of death. But
the relative infrequency of jury verdicts imposing the death sentence does not
indicate rejection of capital punishment per se. Rather, the reluctance of juries in
many cases to impose the sentence may well reflect the humane feeling that this
most irrevocable of sanctions should be reserved for a small number of extreme
cases. See Furman v. Georgia, supra, at 338 (Burger, C.J., dissenting). Indeed, the
actions of juries in many States since Furman is fully compatible with the legis-
lative judgments, reflected in the new statutes, as to the continued utility and ne-
cessity of capital punishment in appropriate cases. At the close of 1974 at least
254 persons had been sentenced to death since Furman, and by the end of March
1976, more than 460 persons were subject to death sentences.
As we have seen, however, the Eighth Amendment demands more than that a
challenged punishment be acceptable to contemporary society. The Court also must

ask whether it comports with the basic concept of human dignity at the core of the
Amendment. Trap v. Dulles, 356 U.S., at 100. Although we cannot "invalidate a
category of penalties because we deem less severe penalties adequate to serve the
ends of penology," Furman v. Georgia, supra, at 451 (Powell, J., dissenting), the
sanction imposed cannot be so totally without penological justification that it results
in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U.S., at 135-36;
In re Kemmler, 136 U.S., at 447.
The death penalty is said to serve two principal social purposes; retribution and
deterrence of capital crimes by prospective offenders.3
In part, capital punishment is an expression of society's moral outrage at par-
ticularly offensive conduct. This function may be unappealing to many, but it is
essential in an ordered society that asks its citizens to rely on legal processes rather
than self-help to vindicate their wrongs.
The instinct for retribution is part of the nature of man, and channeling that instinct
in the administration of criminal justice serves an important purpose in promoting the
stability of a society governed by law. When people begin to believe that organized
society is unwilling or unable to impose upon criminal offenders the punishment they
"deserve," then there are sown the seeds of anarchy—of self-help, vigilante justice,
and lynch law. Furman v. Georgia, supra, at 308 (Stewart, J., concurring).
"Retribution is no longer the dominant objective of the criminal law," Williams

v. New York, 337 U.S. 241, 248 (1949), but neither is it a forbidden objective nor
one inconsistent with our respect for the dignity of men. Furman v. Georgia, 408
U.S., at 394-95 (Burger, C.J., dissenting); id., at 452-54 (Powell, J., dissenting);
Powell v. Texas, 392 U.S., at 531, 535-36. Indeed, the decision that capital pun-
ishment may be the appropriate sanction in extreme cases is an expression of the
community's belief that certain crimes are themselves so grievous an affront to
humanity that the only adequate response may be the penalty of death.4
Statistical attempts to evaluate the worth of the death penalty as a deterrent to
crimes by potential offenders have occasioned a great deal of debate. The results
simply have been inconclusive. As one opponent of capital punishment has said:
[AJfter all possible inquiry, including the probing of all possible methods of inquiry,
we do not know, and for systematic and easily visible reasons cannot know, what the
truth about this "deterrent" effect may be....
The inescapable flaw i s . . . that social conditions in any state are not constant
through time, and that social conditions are not the same in any two states. If an
effect were observed (and the observed effects, one way or another, are not large)
then one could not at all tell whether any of this effect is attributable to the presence
or absence of capital punishment. A "scientific"—that is to say, a soundly based—
conclusion is simply impossible, and no methodological path out of this tangle sug-
gests itself. C. Black, Capital Punishment: The Inevitability of Caprice and Mistake
25-26 (1974).
Although some of the studies suggest that the death penalty may not function
as a significantly greater deterrent than lesser penalties, there is no convincing
empirical evidence either supporting or refuting this view. We may nevertheless

assume safely that there are murderers, such as those who act in passion, for whom
the threat of death has little or no deterrent effect. But for many others, the death
penalty undoubtedly is a significant deterrent. There are carefully contemplated
murders, such as murder for hire, where the possible penalty of death may well
enter into the cold calculus that precedes the decision to act.5 And there are some
categories of murder, such as murder by a life prisoner, where other sanctions may
not be adequate.
The value of capital punishment as a deterrent of crime is a complex factual
issue the resolution of which properly rests with the legislatures, which can evaluate
the results of statistical studies in terms of thek own local conditions and with a
flexibility of approach that is not available to the courts. Furman v. Georgia, supra,
at 403-5 (Burger, C.J., dissenting). Indeed, many of the post-Furman statutes re-
flect just such a responsible effort to define those crimes and those criminals for
which capital punishment is most probably an effective deterrent.
In sum, we cannot say that the judgment of the Georgia legislature that capital
punishment may be necessary in some cases is clearly wrong. Considerations of
federalism, as well as respect for the ability of a legislature to evaluate, in terms
of its particular State, the moral consensus concerning the death penalty and its
social utility as a sanction, requke us to conclude, in the absence of more con-
vincing evidence, that the infliction of death as a punishment for murder is not
without justification and thus is not unconstitutionally severe.
Finally, we must consider whether the punishment of death is disproportionate
in relation to the crime for which it is imposed. There is no question that death as
a punishment is unique in its severity and irrevocability. Furman v. Georgia, 408
U.S., at 286-91 (Brennan, J., concurring); id., at 306 (Stewart, J., concurring).
When a defendant's life is at stake, the Court has been particularly sensitive to
insure that every safeguard is observed. Powell v. Alabama, 287 U.S. 45,71 (1932);
Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., concurring in result). But we
are concerned here only with the imposition of capital punishment for the crime
of murder, and when a life has been taken deliberately by the offender,6 we cannot
say that the punishment is invariably disproportionate to the crime. It is an extreme
sanction, suitable to the most extreme of crimes.
We hold that the death penalty is not a form of punishment that may never be
imposed, regardless of the ckcumstances of the offense, regardless of the character
of the offender, and regardless of the procedure followed in reaching the decision
to impose it....
While Furman did not hold that the infliction of the death penalty per se violates
the Constitution's ban on cruel and unusual punishments, it did recognize that the
penalty of death is different in kind from any other punishment imposed under our
system of criminal justice. Because of the uniqueness of the death penalty, Furman
held that it could not be imposed under sentencing procedures that created a sub-
stantial risk that it would be inflicted in an arbitrary and capricious manner....
Furman mandates that where discretion is afforded a sentencing body on a
matter so grave as the determination of whether a human life should be taken or
spared, that discretion must be suitably directed and limited so as to minimize the
risk of wholly arbitrary and capricious action....
While some have suggested that standards to guide a capital jury's sentencing
deliberations are impossible to formulate, the fact is that such standards have been
developed. When the drafters of the Model Penal Code faced this problem, they
concluded "that it is within the realm of possibility to point to the main circum-
stances of aggravation and of mitigation that should be weighed and weighed
against each other when they are presented in a concrete case." ALI, Model Penal
Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in original).7
While such standards are by necessity somewhat general, they do provide guidance
to the sentencing authority and thereby reduce the likelihood that it will impose a
sentence that fairly can be called capricious or arbitrary. Where the sentencing
authority is required to specify the factors it relied upon in reaching its decision,
the further safeguard of meaningful appellate review is available to ensure that
death sentences are not imposed capriciously or in a freakish manner.
In summary, the concerns expressed in Furman that the penalty of death not be
imposed in an arbitrary or capricious manner can be met by a carefully drafted
statute that ensures that the sentencing authority is given adequate information and
guidance. As a general proposition these concerns are best met by a system that
provides for a bifurcated proceeding at which the sentencing authority is apprised
of the information relevant to the imposition of sentence and provided with stan-
dards to guide its use of the information.
We do not intend to suggest that only the above-described procedures would be
permissible under Furman or that any sentencing system constructed along these
general lines would inevitably satisfy the concerns of Furman, for each distinct
system must be examined on an individual basis. Rather, we have embarked upon
this general exposition to make clear that it is possible to construct capital-
sentencing systems capable of meeting Furmarfs constitutional concerns
The basic concern of Furman centered on those defendants who were being
condemned to death capriciously and arbitrarily. Under the procedures before the
Court in that case, sentencing authorities were not directed to give attention to the
nature or circumstances of the crime committed or to the character or record of the
defendant. Left unguided, juries imposed the death sentence in a way that could
only be called freakish. The new Georgia sentencing procedures, by contrast, focus
the jury's attention on the particularized nature of the crime and the particularized
characteristics of the individual defendant. While the jury is permitted to consider
any aggravating or mitigating circumstances, it must find and identify at least one
statutory aggravating factor before it may impose a penalty of death. In this way
the jury's discretion is channeled. No longer can a jury wantonly and freakishly
impose the death sentence; it is always circumscribed by the legislative guidelines.
In addition, the review function of the Supreme Court of Georgia affords additional
assurance that the concerns that prompted our decision in Furman are not present
to any significant degree in the Georgia procedure applied here.
For the reasons expressed in this opinion, we hold that the statutory system
under which Gregg was sentenced to death does not violate the Constitution. Ac-
cordingly, the judgment of the Georgia Supreme Court is affirmed.
It is so ordered.
Notes
1. The statute provides in part:
(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason,
in any case.
(b) In all cases of other offenses for which the death penalty may be authorized, the
judge shall consider, or he shall include in his instructions to the jury for it to consider,
any mitigating circumstances or aggravating circumstances otherwise authorized by
law and any of the following statutory aggravating circumstances which may be sup-
ported by the evidence:
(1) The offense of murder, rape, armed robbery, or kidnapping was committed
by a person with a prior record of conviction for a capital felony, or the offense
of murder was committed by a person who has a substantial history of serious
assaultive criminal convictions.
(2) The offense of murder, rape, armed robbery, or kidnapping was committed
while the offender was engaged in the commission of another capital felony, or
aggravated battery, or the offense of murder was committed while the offender
was engaged in the commission of burglary or arson in the first degree.
(3) The offender by his act of murder, armed robbery, or kidnapping knowingly
created a great risk of death to more than one person in a public place by means
of a weapon or device which would normally be hazardous to the lives of more
than one person.
(4) The offender committed the offense of murder for himself or another, for the
purpose of receiving money or any other thing of monetary value.
(5) The murder of a judicial officer, former judicial officer, district attorney or
solicitor or former district attorney or solicitor during or because of the exercise
of his official duty.
(6) The offender caused or directed another to commit murder or committed mur-
der as an agent or employee of another person.
(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously
or wantonly vile, horrible or inhuman in that it involved torture, depravity of
mind, or an aggravated battery to the victim.
(8) The offense of murder was committed against any peace officer, corrections
employee or fireman while engaged in the performance of his official duties.
(9) The offense of murder was committed by a person in, or who has escaped
from, the lawful custody of a peace officer or place of lawful confinement.
(10) The murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or custody in a place of lawful confinement, of himself
or another.
(c) The statutory instructions as determined by the trial judge to be warranted by the
evidence shall be given in charge and in writing to the jury for its deliberation. The
jury, if its verdict be a recommendation of death, shall designate in writing, signed
by the foreman of the jury, the aggravating circumstance or circumstances which it
found beyond a reasonable doubt. In non-jury cases the judge shall make such des-
ignation. Except in cases of treason or aircraft hijacking, unless at least one of the
statutory aggravating circumstances enumerated in section 27-2534. l(b) is so found,
the death penalty shall not be imposed. § 27-2534.1 (Supp. 1975).
The Supreme Court of Georgia, in Arnold v. State, 236 Ga. 534, 540, 224 S.E.2d
386, 391 (1976), recently held unconstitutional the portion of the first circumstance
encompassing persons who have a "substantial history of serious assaultive criminal
convictions" because it did not set "sufficiently 'clear and objective standards.' "
2. The statute requires that the Supreme Court of Georgia obtain and preserve the records
of all capital felony cases in which the death penalty was imposed after January 1, 1970,
or such earlier date that the court considers appropriate. § 27-2537 (f) (Supp. 1975). To aid
the court in its disposition of these cases the statute further provides for the appointment of
a special assistant and authorizes the employment of additional staff members. §§ 27-2537
(f)-(h) (Supp. 1975).
3. Another purpose that has been discussed is the incapacitation of dangerous criminals
and the consequent prevention of crimes that they may otherwise commit in the future
4. Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke
to this effect before the British Royal Commission on Capital Punishment:
Punishment is the way in which society expresses its denunciation of wrong doing: and, in order
to maintain respect for law, it is essential that the punishment inflicted for grave crimes should
adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to
consider the objects of punishment as being deterrent or reformative or preventive and nothing
else.... The truth is that some crimes are so outrageous that society insists on adequate pun-
ishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.
Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950)
A contemporary writer has noted more recently that opposition to capital punishment "has
much more appeal when the discussion is merely academic than when the community is
confronted with a crime, or a series of crimes, so gross, so heinous, so cold-blooded that
anything short of death seems an inadequate response." Raspberry, Death Sentence, The
Washington Post, Mar. 12, 1976, p. A27, cols. 5-6.
5. Other types of calculated murders, apparently occurring with increasing frequency,
include the use of bombs or other means of indiscriminate killings, the extortion murder of
hostages or kidnap victims, and the execution-style killing of witnesses to a crime.
6. We do not address here the question whether the taking of the criminal's life is a
proportionate sanction where no victim has been deprived of life—for example, when capital
punishment is imposed for rape, kidnapping, or armed robbery that does not result in the
death of any human being.
7. The Model Penal Code proposes the following standards:
(3) Aggravating Circumstances.
(a) The murder was committed by a convict under sentence of imprisonment.
(b) The defendant was previously convicted of another murder or of a felony
involving the use or threat of violence to the person.
(c) At the time the murder was committed the defendant also committed another
murder.
(d) The defendant knowingly created a great risk of death to many persons.
(e) The murder was committed while the defendant was engaged or was an ac-
complice in the commission of, or an attempt to commit, or flight after committing
or attempting to commit robbery, rape or deviate sexual intercourse by force or
threat of force, arson, burglary or kidnapping.
(f) The murder was committed for the purpose of avoiding or preventing a lawful
arrest or effecting an escape from lawful custody.
(g) The murder was committed for pecuniary gain.
(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional
depravity.
(4) Mitigating Circumstances.
(a) The defendant has no significant history of prior criminal activity.
(b) The murder was committed while the defendant was under the influence of
extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's homicidal conduct or consented
to the homicidal act.
(d) The murder was committed under circumstances which the defendant believed
to provide a moral justification or extenuation for his conduct.
(e) The defendant was an accomplice in a murder committed by another person
and his participation in the homicidal act was relatively minor.
(f) The defendant acted under duress or under the domination of another person.
(g) At the time of the murder, the capacity of the defendant to appreciate the
criminality [wrongfulness] of his conduct or to conform his conduct to the re-
quirements of law was impaired as a result of mental disease or defect or intox-
ication.
(h) The youth of the defendant at the time of the crime. ALI Model Penal Code
§ 210.6 (Proposed Official Draft 1962)
14
Woodson v. North Carolina, 1976:

Mandatory Death Penalties Are
Unconstitutional
Judgment of the Court, and opinion of Mr. Justice Stewart, Mr. Justice Powell,
and Mr. Justice Stevens, announced by Mr. Justice Stewart.... At the time of this
Court's decision in Furman v. Georgia, 408 U.S. 238 (1972), North Carolina law
provided that in cases of first-degree murder, the jury in its unbridled discretion
could choose whether the convicted defendant should be sentenced to death or to
life imprisonment.1 After the Furman decision the Supreme Court of North Caro-
lina in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), held unconstitutional
the provision of the death penalty statute that gave the jury the option of returning
a verdict of guilty without capital punishment, but held further that this provision
was severable so that the statute survived as a mandatory death penalty law.
The North Carolina General Assembly in 1974 followed the court's lead and
enacted a new statute that was essentially unchanged from the old one except that
it made the death penalty mandatory. The statute now reads as follows:
Murder in the first and second degree defined; punishment.—A murder which shall
be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or
by any other kind of willful, deliberate and premeditated killing, or which shall be
committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kid-
napping, burglary or other felony, shall be deemed to be murder in the first degree
and shall be punished with death. All other kinds of murder shall be deemed murder
in the second degree, and shall be punished by imprisonment for a term of not less
than two years nor more than life imprisonment in the State's prison. N.C. Gen. Stat.
§ 14-17 (Cum. Supp. 1975).
It was under this statute that the petitioners, who committed their crime on June
3, 1974, were tried, convicted, and sentenced to death....
The history of mandatory death penalty statutes in the United States . . . reveals
that the practice of sentencing to death all persons convicted of a particular offense
has been rejected as unduly harsh and unworkably rigid. The two crucial indicators
Reprinted from the plurality opinion in Woodson v. North Carolina, 428 U.S. 280 (1976) by Justice
Potter Stewart. Substantial portions of the opinion have been omitted, and the remaining footnotes
renumbered.
206
Mandatory Death Penalties Are Unconstitutional 207
of evolving standards of decency respecting the imposition of punishment in our

society—jury determinations and legislative enactments—both point conclusively
to the repudiation of automatic death sentences. At least since the Revolution,
American jurors have, with some regularity, disregarded their oaths and refused to
convict defendants where a death sentence was the automatic consequence of a
guilty verdict....
. . . The consistent course charted by the state legislatures and by Congress since
the middle of the past century demonstrates that the aversion of jurors to mandatory
death penalty statutes is shared by society at large....
Although the Court has never ruled on the constitutionality of mandatory death
penalty statutes, on several occasions dating back to 1899 it has commented upon
our society's aversion to automatic death sentences. In Winston v. United States,
172 U.S. 303 (1899), the Court noted that the "hardship of punishing with death
every crime coming within the definition of murder at common law, and the re-
luctance of jurors to concur in a capital conviction, have induced American leg-
islatures, in modern times, to allow some cases of murder to be punished by
imprisonment, instead of by death." Id., at 310. Fifty years after Winston, the Court
underscored the marked transformation in our attitudes towards mandatory sen-
tences: "The belief no longer prevails that every offense in a like legal category
calls for an identical punishment without regard to the past life and habits of a
particular offender. This whole country has traveled far from the period in which
the death sentence was an automatic and commonplace result of convictions...."
Williams v. New York, 337 U.S. 241, 247 (1949).
More recently, the Court in McGautha v. California, 402 U.S. 183 (1971), de-
tailed the evolution of discretionary imposition of death sentences in this country,
prompted by what it termed the American "rebellion against the common-law rule
imposing a mandatory death sentence on all convicted murderers." Id., at 198. See
id., at 198-202. Perhaps the one important factor about evolving social values
regarding capital punishment upon which the Members of the Furman Court agreed
was the accuracy of McGautha's assessment of our Nation's rejection of mandatory
death sentences....
It is now well established that the Eighth Amendment draws much of its mean-
ing from "the evolving standards of decency that mark the progress of a maturing
society." Trop v. Dulles, 356 U.S., at 101 (plurality opinion). As the above dis-
cussion makes clear, one of the most significant developments in our society's
treatment of capital punishment has been the rejection of the common-law practice
of inexorably imposing a death sentence upon every person convicted of a specified
offense. North Carolina's mandatory death penalty statute for first-degree murder
departs markedly from contemporary standards respecting the imposition of the
punishment of death and thus cannot be applied consistently with the Eighth and
Fourteenth Amendments' requirement that the State's power to punish "be exer-
cised within the limits of civilized standards." Id., at 100.2
A separate deficiency of North Carolina's mandatory death sentence statute is
its failure to provide a constitutionally tolerable response to Furmarfs rejection of
unbridled jury discretion in the imposition of capital sentences. Central to the lim-
ited holding in Furman was the conviction that the vesting of standardless sen-
tencing power in the jury violated the Eighth and Fourteenth Amendments.... It
is argued that North Carolina has remedied the inadequacies of the death penalty
statutes held unconstitutional in Furman by withdrawing all sentencing discretion
from juries in capital cases. But when one considers the long and consistent Amer-
ican experience with the death penalty in first-degree murder cases, it becomes
evident that mandatory statutes enacted in response to Furman have simply papered
over the problem of unguided and unchecked jury discretion.
. . . North Carolina's mandatory death penalty statute provides no standards to
guide the jury in its inevitable exercise of the power to determine which first-
degree murderers shall live and which shall die. And there is no way under the
North Carolina law for the judiciary to check arbitrary and capricious exercise of
that power through a review of death sentences. Instead of rationalizing the sen-
tencing process, a mandatory scheme may well exacerbate the problem identified
in Furman by resting the penalty determination on the particular jury's willingness
to act lawlessly. While a mandatory death penalty statute may reasonably be ex-
pected to increase the number of persons sentenced to death, it does not fulfill
Furmarfs basic requirement by replacing arbitrary and wanton jury discretion with
objective standards to guide, regularize, and make rationally reviewable the process
for imposing a sentence of death.
A third constitutional shortcoming of the North Carolina statute is its failure to
allow the particularized consideration of relevant aspects of the character and record
of each convicted defendant before the imposition upon him of a sentence of death.
. . . A process that accords no significance to relevant facets of the character and
record of the individual offender or the circumstances of the particular offense
excludes from consideration in fixing the ultimate punishment of death the possi-
bility of compassionate or mitigating factors stemming from the diverse frailties of
humankind. It treats all persons convicted of a designated offense not as uniquely
individual human beings, but as members of a faceless, undifferentiated mass to
be subjected to the blind infliction of the penalty of death.
. . . While the prevailing practice of individualizing sentencing determinations
generally reflects simply enlightened policy rather than a constitutional imperative,
we believe that in capital cases the fundamental respect for humanity underlying
the Eighth Amendment, see Trop v. Dulles, 356 U.S., at 100 (plurality opinion),
requires consideration of the character and record of the individual offender and
the circumstances of the particular offense as a constitutionally indispensable part
of the process of inflicting the penalty of death.
This conclusion rests squarely on the predicate that the penalty of death is
qualitatively different from a sentence of imprisonment, however long. Death, in
its finality, differs more from life imprisonment than a 100-year prison term differs
from one of only a year or two. Because of that qualitative difference, there is a
corresponding difference in the need for reliability in the determination that death
is the appropriate punishment in a specific case.
It is so ordered.
Mandatory Death Penalties Are Unconstitutional 209
Notes
1. The murder statute in effect in North Carolina until April 1974 reads as follows:
§ 14-17. Murder in the first and second degree defined; punishment.—A murder which shall
be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any
other kind of willful, deliberate and premeditated killing, or which shall be committed in the
perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be
deemed to be murder in the first degree and shall be punished with death: Provided, if at the
time of rendering its verdict in open court, the jury shall so recommend, the punishment shall
be imprisonment for life in the State's prison, and the court shall so instruct the jury. All other
kinds of murder shall be deemed murder in the second degree, and shall be punished with
imprisonment of not less than two nor more than thirty years in the State's prison. N.C. Gen.
Stat. § 14-17 (1969).
2. Dissenting opinions in this case and in Roberts v. Louisiana, argue that this conclusion
is "simply mistaken" because the American rejection of mandatory death sentence statutes
might possibly be ascribable to "some maverick juries or jurors." (Rehnquist, J., dissenting).
See Roberts v. Louisiana, (White, J., dissenting). Since acquittals no less than convictions
required unanimity and citizens with moral reservations concerning the death penalty were
regularly excluded from capital juries, it seems hardly conceivable that the persistent refusal
of American juries to convict palpably guilty defendants of capital offenses under mandatory
death sentence statutes merely "represented the intransigence of only a small minority" of
jurors. (Rehnquist, Jr., dissenting). Moreover, the dissenting opinions simply ignore the
experience under discretionary death sentence statutes indicating that juries reflecting con-
temporary community values, Witherspoon v. Illinois, 391 U.S., at 519, and n.15, found the
death penalty appropriate for only a small minority of convicted first-degree murderers....
We think it evident that the uniform assessment of the historical record by Members of this
Court beginning in 1899 in Winston v. United States, 172 U.S. 303 (1899), and continuing
through the dissenting opinions of The Chief Justice and Mr. Justice Blackman four years
ago in Furman, see supra, at 296-98, and n.32, provides a far more cogent and persuasive
explanation of the American rejection of mandatory death sentences than do the speculations
in today's dissenting opinions.
15
Coker v. Georgia, 1977: The Death

Penalty for Rape Is Unconstitutional
Mr. Justice White announced the judgment of the Court and filed an opinion in
-which Mr. Justice Stewart, Mr. Justice Blackmun, and Mr. Justice Stevens, joined.
Georgia Code Ann. § 26-2001 (1972) provides that "[a] person convicted of rape
shall be punished by death or by imprisonment for life, or by imprisonment for
not less than 20 years. Punishment is determined by a jury in a separate sentencing
proceeding in which at least one of the statutory aggravating circumstances must
be found before the death penalty may be imposed. Petitioner Coker was convicted
of rape and sentenced to death. Both conviction and sentence were affirmed by the
Georgia Supreme Court....
. . . In Gregg, after giving due regard to such sources, the Court's judgment was
that the death penalty for deliberate murder was neither the purposeless imposition
of severe punishment nor a punishment grossly disproportionate to the crime. But
the Court reserved the question of the constitutionality of the death penalty when
imposed for other crimes. 428 U.S., at 187 n.35.
That question, with respect to rape of an adult woman, is now before us. We
have concluded that a sentence of death is grossly disproportionate and excessive
punishment for the crime of rape and is therefore forbidden by the Eight Amend-
ment as cruel and unusual punishment.1
As advised by recent cases, we seek guidance in history and from the objective
evidence of the country's present judgment concerning the acceptability of death
as a penalty for rape of an adult woman. At no time in the last 50 years has a
majority of the States authorized death as a punishment for rape. In 1925, 18 States,
the District of Columbia, and the Federal Government authorized capital punish-
ment for the rape of an adult female. By 1971 just prior to the decision in Wurman
v. Georgia, that number had declined, but not substantially, to 16 States plus the
Federal Government. Furman then invalidated most of the capital punishment stat-
utes in this country, including the rape statutes, because, among other reasons, of
the manner in which the death penalty was imposed and utilized under those laws.
. . . In reviving death penalty laws to satisfy Furmarfs mandate, none of the
States that had not previously authorized death for rape chose to include rape
Reprinted from the plurality opinion in Coker v. Georgia, 433 U. S. 584 (1977) by Justice Byron White.
Substantial portions of the opinion have been omitted, and the remaining footnotes renumbered.
210
The Death Penalty for Rape Is Unconstitutional 211
among capital felonies. Of the 16 States in which rape had been a capital offense,
only three provided the death penalty for rape of an adult woman in their revised
statutes—Georgia, North Carolina, and Louisiana. In the latter two States, the death
penalty was mandatory for those found guilty, and those laws were invalidated by
Woodson and Roberts. When Louisiana and North Carolina, responding to those
decisions, again revised their capital punishment laws, they reenacted the death
penalty for murder but not for rape; none of the seven other legislatures that to our
knowledge have amended or replaced their death penalty statutes since July 2,
1976, including four States (in addition to Louisiana and North Carolina) that had
authorized the death sentence for rape prior to 1972 and had reacted to Furman
with mandatory statutes, included rape among the crimes for which death was an
authorized punishment
The current judgment with respect to the death penalty for rape is not wholly
unanimous among state legislatures, but it obviously weighs very heavily on the
side of rejecting capital punishment as a suitable penalty for raping an adult
woman.2
It was also observed in Gregg that "[t]he jury ... is a significant and reliable
index of contemporary values because it is so directly involved," 428 U.S., at 181,
and that it is thus important to look to the sentencing decisions that juries have
made in the course of assessing whether capital punishment is an appropriate pen-
alty for the crime being tried....
According to the factual submissions in this Court, out of all rape convictions
in Georgia since 1973—and that total number has not been tendered—63 cases
had been reviewed by the Georgia Supreme Court as of the time of oral argument;
and of these, six involved a death sentence, one of which was set aside, leaving
five convicted rapists now under sentence of death in the State of Georgia. Georgia
juries have thus sentenced rapists to death six times since 1973. This obviously is
not a negligible number; and the State argues that as a practical matter juries simply
reserve the extreme sanction for extreme cases of rape and that recent experience
surely does not prove that jurors consider the death penalty to be a disproportionate
punishment for every conceivable instance of rape, no matter how aggravated.
Nevertheless, it is true that in the vast majority of cases, at least 9 out of 10, juries
have not imposed the death sentence.
These recent events evidencing the attitude of state legislatures and sentencing
juries do not wholly determine this controversy, for the Constitution contemplates
that in the end our own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment. Nevertheless, the
legislative rejection of capital punishment for rape strongly confirms our own judg-
ment, which is that death is indeed a disproportionate penalty for the crime of
raping an adult woman.
We do not discount the seriousness of rape as a crime. It is highly reprehensible,
both in a moral sense and in its almost total contempt for the personal integrity
and autonomy of the female victim and for the latter's privilege of choosing those
with whom intimate relationships are to be established. Short of homicide, it is the
"ultimate violation of self."3 It is also a violent crime because it normally involves
force, or the threat of force or intimidation, to overcome the will and the capacity
of the victim to resist. Rape is very often accompanied by physical injury to the
female and can also inflict mental and psychological damage.4 Because it under-
mines the community's sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of moral
depravity and of the injury to the person and to the public, it does not compare
with murder, which does involve the unjustified taking of human life. Although it
may be accompanied by another crime, rape by definition does not include the
death or even the serious injury to another person.5 The murderer kills; the rapist,
if no more than that, does not. Life is over for the victim of the murderers; for the
rape victim, life may not be nearly so happy as it was, but it is not over and
normally is not beyond repair. We have the abiding conviction that the death pen-
alty, which "is unique in its severity and revocability," 428 U.S. 187, is an ex-
cessive penalty for the rapist who, as such, does not take human life.
This does not end the matter; for under Georgia law, death may not be imposed
for any capital offense, including rape, unless the jury or judge finds one of the
statutory aggravating circumstances and then elects to impose that sentence. Section
26-3102 (Supp. 1975); Gregg v. Georgia, supra, at 165-66. For the rapist to be
executed in Georgia, it must therefore be found not only that he committed rape
but also that one or more of the following aggravating circumstances were present:
1. that the rape was committed by a person with a prior record of conviction for
a capital felony; 2. that the rape was committed while the offender was engaged
in the commission of another capital felony, or aggravated battery; or 3. the rape
"was outrageously or wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or aggravated battery to the victim."6 Here, the first two of
these aggravating circumstances were alleged and found by the jury.
Neither of these circumstances, nor both of them together, change our conclusion
that the death sentence imposed on Coker is a disproportionate punishment for
rape. Coker had prior convictions for capital felonies—rape, murder and kidnap-
ping—but these prior convictions do not change the fact that the instant crime
being punished is a rape not involving the taking of life.
It is also true that the present rape occurred while Coker was committing armed
robbery, a felony for which the Georgia statutes authorize the death penalty.7 But
Coker was tried for the robbery offense as well as for rape and received a separate
life sentence for this crime; the jury did not deem the robbery itself deserving of
the death penalty, even though accompanied by the aggravating circumstance,
which was stipulated, that Coker had been convicted of a prior capital crime.8
We note finally that in Georgia a person commits murder when he unlawfully
and with malice aforethought, either express or implied, causes the death of another
human being. He also commits that crime when in the commission of a felony he
causes the death of another human being, irrespective of malice. But even where
the killing is deliberate, it is not punishable by death absent proof of aggravating
circumstances. It is difficult to accept the notion, and we do not, that the rape, with
or without aggravating circumstances, should be punished more heavily than the
deliberate killer as long as the rapist does not himself take the life of his victim.
The Death Penalty for Rape Is Unconstitutional 213
The judgment of the Georgia Supreme Court upholding the death sentence is re-
versed and the case is remanded to that court for further proceedings not inconsis-
tent with this opinion.
So ordered.
Notes
1. Because the death sentence is a disproportionate punishment for rape, it is cruel and
unusual punishment within the meaning of the Eighth Amendment even though it may
measurably serve the legitimate ends of punishment and therefore is not invalid for its failure
to do so. We observe that in the light of the legislative decisions in almost all of the States
and in most of the countries around the world, it would be difficult to support a claim that
the death penalty for rape is an indispensable part of the States' criminal justice system.
2. In Trop v. Dulles, 356 U.S. 86, 102 (1958), the Court took pains to note the climate
of international opinion concerning the acceptability of a particular punishment. It is thus
not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained
the death penalty for rape where death did not ensue. United Nations, Department of Eco-
nomic and Social Affairs, Capital Punishment 40, 86 (1968).
3. Law Enforcement Assistance Administration Report, Rape and Its Victims: A Report
for Citizens, Health Facilities, and Criminal Justice Agencies 1 (1975), quoting Bard &
Ellison, Crisis Intervention and Investigation of Forcible Rape, The Police Chief (May 1974),
Reproduced as Appendix I-B to the Report.
4. See Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am. Crim. Law
Rev. 335, 338 (1973); Comment, Rape and Rape Laws: Sexism in Society and Law, 61
Calif. L. Rev. 919, 922-23 (1973).
5. [Rape is ''carnal knowledge of a female, forcibly and against her will. Carnal knowl-
edge in rape occurs when there is any penetration of the female sex organ by the male sex
organ." Ga. Code Ann. §26-2001 (1972)]
6. There are other aggravating circumstances provided in the statute,... but they are not
applicable to rape.
7. In Gregg v. Georgia, the Georgia Supreme Court refused to sustain a death sentence
for armed robbery because, for one reason, death had been so seldom imposed for this crime
in other cases that such a sentence was excessive and could not be sustained under the
statute. As it did in this case, however, the Georgia Supreme Court apparently continues to
recognize armed robbery as a capital offense for the purpose of applying the aggravating
circumstances provisions of the Georgia Code.
8. Where the accompanying capital crime is murder, it is most likely that the defendant
would be tried for murder, rather than rape; and it is perhaps academic to deal with the
death sentence for rape in such a circumstance. It is likewise unnecessary to consider the
rape-felony murder—a rape accompanied by the death of the victim which was unlawfully
but nonmaliciously caused by the defendant.
Where the third aggravating circumstance mentioned in the text is present—that the rape
is particularly vile or involves torture or aggravated battery—it would seem that the defen-
dant could very likely be convicted, tried and appropriately punished for this additional
conduct.
16
Constitutional Interpretation, History,

and the Death Penalty
DAVID A. J. RICHARDS
The argument of Raoul Berger's book, Death Penalties: The Supreme Court's Ob-
stacle Course, may be easily summarized: the persons who drafted and approved
the eighth and fourteenth amendments to the United States Constitution did not
intend the former to limit, let alone invalidate, the use of the death penalty by the
federal or state governments. Accordingly, decisions of the Supreme Court (nota-
bly, Furman v. Georgia and Gregg v. Georgia) that have limited the legitimate
scope and application of the death penalty in the United States are wrong; and, a
fortiori, the two Justices (Justices Brennan and Marshall) and the many lawyers
and citizens who view the death penalty as per se a violation of the eighth amend-
ment are wrong.
Berger's methodology—the use of history to criticize judicial activism—is akin
to his argument in Government by Judiciary,1 which similarly faults judicial con-
struction of the fourteenth amendment. Both books claim to show a gross violation
by the judiciary of what Berger views as the basic postulate of constitutional de-
mocracy: popular sovereignty. Under this view, the legitimacy of judicial suprem-
acy derives from judicial protection of the will of the people, expressed in specific
constitutional language, against the actions of temporary democratic majorities.
Thus, for a judge to apply constitutional language outside the scope of what the
people intended betrays the governing rationale of constitutional government—that
the people should rule (pp. 77-111).
In Government by Judiciary, Berger is ambivalent about the destructive effect
of his argument on the legitimacy of, inter alia, Brown v. Board of Education and
its progeny, decisions whose political morality he esteems, notwithstanding their
constitutional illegitimacy. In Death Penalties, he expresses no comparable moral
or political tension. The book displays a dismissive distemper that takes a char-
acteristic form: While Justices of the Supreme Court and commentators find some
Reprinted from California Law Review 71 (1983): 1372-98 by permission of the author. Portions of
the text (including all of sections I and Ila) and footnotes have been deleted; the remaining footnotes
have been remunerated.
214
Constitutional Interpretation, History, and the Death Penalty 215
aspect of the death penalty forbidden by the eighth or fourteenth amendments, the
death penalty itself—clearly not constitutionally questioned by those who drafted
and approved the relevant amendments—is not forbidden by the Constitution;
therefore, any argument to the contrary betrays the people and their constitutional
right to govern (pp. 43-58).
This argument, repeated in endless variations, is—I shall argue—fatally question
begging. It assumes what, crucially, must be shown: first, that the historical evi-
dence must be constitutionally read in the way Berger proposes; and second, that
the result of this historical inquiry (what the Founders would have included in and
excluded from the scope of application of the constitutional language) is the mea-
sure of legitimate constitutional interpretation by the judiciary. It is, I believe,
precisely because Berger assumes this highly controversial theory of constitutional
interpretation that he both reads history as he does, and gives to the readings he
presents such critical force in constitutional interpretation. The consequence is, in
my judgment, both bad history and bad law.
My task here is to examine the background theory of constitutional interpreta-
tion, used also by other recent constitutional theorists, that gives force and shape
to Berger's historiography and constitutional argument. This theory, mislabeled
interpretivism, rests, I shall argue, on an unsound conception both of interpretation
in general and of legal interpretation in particular. This essentially positivist theory
distorts constitutional questions and creates false and empty dilemmas about the
capacity of constitutional interpretation to bring about justice through law.
Part I [not reprinted here] briefly discussed the current debate over what methods
of constitutional interpretation may properly be called interpretivist. Part II [in part
omitted here] analyzes the phenomenon of interpretation in general, and of legal and
constitutional interpretation in particular, as the foundation for an approach to con-
stitutional interpretation that focuses on the abstract intentions embodied in particular
clauses. Part HI criticizes Berger's analysis of the constitutionality of the death pen-
alty, and presents an alternative approach, concluding that the Supreme Court was in
fact correct in finding certain aspects of the death penalty unconstitutional, and
should have gone farther to hold the death penalty itself unconstitutional....
II Interpretation
B. Constitutional Interpretation
In the complex legal system of the United States, to determine which method of
legal interpretation is appropriate to constitutional law may require nothing less
than an explication of the basic premises of the political theory of constitutional
democracy. The basic institutions of the American republic correspond to deep
themes of democratic political theory: federalism with its complex structure of
representation; the separation of powers with its controlling conception of the rule
of law; judicial supremacy based on a charter of basic human rights. The question
thus becomes: Which form of interpretation is metainterpretively most consistent
with the beliefs, aims, and purposes defined by the democratic political theory
behind American constitutional institutions? Before turning to this question, how-
ever, we must understand the philosophical inadequacy of the strict constructionist
view, which does not follow—or even acknowledge—the basic principles of in-
terpretation outlined above.
1. The Inadequacy of Strict Constructionism
Strict constructionism lacks the explanatory support required to justify it as the
correct means of interpreting the Constitution. The unexamined assumption of the
strict constructionist position, reiterated with endless rhetorical variations by Ber-
ger, is that the only proper approach to interpretation of constitutional clauses
protective of human rights is to track the cases which those who wrote and ap-
proved the constitutional language would have included or excluded, and to con-
demn any other approach as fatally noninterpretive. But this in turn assumes that
legal interpretation must proceed according to the positivist model, which defines
legal concepts in terms of paradigm cases or denotative exemplars.2
In order to free ourselves from the intellectual inevitability which this model of
interpretation assumes, we should remind ourselves that legal interpretation, as a
convention directed at the understanding and elaboration of conventions (laws), is
not directly about persons. A characteristic fallacy of Berger's strict constructionist
model is the assimilation of legal interpretation to the explanation of the subjective
purposes of the Founders, or legislators, or whomever. A more accurate description
of legal interpretation is that the subjective purposes of legislators play only the
role that legal conventions place upon their purposes given the governing political
theory of the society.
We shall shortly see how constitutional interpretation in the United States must,
consistent with this perspective, construe Founders' intent, but the point is more
apparent in statutory interpretation. For example, it is a familiar principle of stat-
utory interpretation in the United States to impute to the often conflicting and
sometimes incoherent data of legislative language, context, and history the purpose
of a hypothetical reasonable legislator.3 Courts impute a hypothetical rationality to
the legislative process because fundamental principles of due process of law require
that both courts and legislatures pursue constitutionally reasonable purposes in ra-
tional ways. Courts must therefore frame their interpretive task accordingly. It
would be a mistake to think that these features of legal interpretation wholly dis-
engage the process from any contact with persons' intentions. Rather, the intentions
of lawmakers are themselves shaped by such conventions.4
Legal standards are often formulated with a self-conscious understanding that
tough questions regarding ambiguities and tensions in purpose have not been set-
tled, but left to courts to resolve consistent with sound principles of legal interpre-
tation. The normative assumptions of rationality or reasonableness which courts
bring to such a task are stronger than those found in other forms of holistic expla-
nation, for they impute a hypothetical ideal of reasonableness to a subjective pro-
cess often politically haphazard and sometimes incoherent. But this is simply to
mark an important truth about the metainterpretation of legal interpretation, namely,

that as we have just seen in the case of statutory interpretation and shall shortly
see regarding constitutional interpretation, legal interpretation is embedded in larger
moral and political ideals of just and good government.
So, to the extent that the appeal of the strict constructionist model of constitu-
tional interpretation derives from a philosophical picture of what legal interpretation
must be (indeed, it does not even acknowledge an alternative conception), it rests
on bad philosophy. To the extent that the model assumes there is no other plausible
theory of constitutional interpretation, the assumption is simply false. An alternative
model of interpretation of these general clauses focuses on the more abstract in-
tentions that the clauses express, namely, principles concerning freedom of ex-
pression (first amendment), prohibitions on unnecessary harshness in criminal
sanctions (eight amendment), and general requirements of equal dignity (fourteenth
amendment). Various factors (the language used, historical context, the tradition of
judicial elaboration, etc.) support the inference that the meaning of such clauses
should not be bound to Founders' applications, but should be construed as embod-
ying abstract principles of justice which, in its independent judgment, the judiciary
must elaborate over time. If necessary, elaboration may involve extending, aban-
doning, or reinterpreting Founders' applications. We turn now to a detailed dis-
cussion of how these various factors support the abstract intention model of
constitutional interpretation from the metainterpretive perspective discussed earlier.
2. Political Theory and the Abstract Intention Approach
From the perspective of the democratic political theory which American constitu-
tional institutions embody, we must ask which mode of interpretation—strict con-
structionism or abstract intentions—is more consistent with an imputation of
reasonable and coherent purposes to the Constitution. At least five convergent and
interdependent considerations suggest that the relevant constitutional clauses should
be construed in terms of abstract intentions.
First, the language of the clauses (' 'cruel and unusual punishments," "equal
protection of the laws") is itself abstract. The clauses certainly do not use denoting
or referring expressions that would confine meaning to some class of historic ob-
jects. This claim could perhaps be plausibly made regarding "an impartial jury"5
on the basis of the language used, the relatively high degree of specificity that the
concept of an impartial jury had acquired at the time of the Founders, and the
relatively low degree of generalization that the subject matter of the phrase permits.
On the other hand, the claim appears less plausible if made about "bill of attain-
der,"6 because the subject matter gives rise to a principle of more general appli-
cation. If "bill of attainder" is not specific enough to confine interpretation, it is
hard to see how "equal protection" or "cruel and unusual punishments" could
possibly be. In any event, it is not reasonable to impute to the Founders or whom-
ever an intent to bind later interpretation by their applications of the language when
the language used does not do so; when the range of such applications is often
enormously controversial historically (the general language may expressly have
glossed over disagreements in application); and when available conceptions of the

judicial role at the time included the common law model of case-by-case elabo-
ration of general concepts and abstract principles.7
Second, whatever the common sense of things included or excluded at the time
the constitutional language was approved, it is not a reasonable construction of the
abstract language employed to limit it forever to its historic denotations. Matters
of constitutionally relevant and controlling fact and value may evolve so that ap-
plications unimaginable earlier may become reasonable, and earlier applications
may become unreasonable. To bind interpretation to historic referents would impute
to the constitutional design the unreasonable intent to apply abstract language coun-
terfactually, by ignoring changes in relevant factors which would lead reasonable
persons to apply the relevant language differently.
Chief Justice Hughes correctly made precisely this point in Home Building &
Loan Association v. Blaisdell* Justice Sutherland had set forth a historical argu-
ment that the contract clause was precisely intended to invalidate stay laws of the
kind that Hughes, writing for the majority, had upheld.9 Hughes suggested that the
denotative exemplar of state stay laws in the 1780's, which Sutherland's theory of
interpretation supposed to be controlling, could not reasonably control when the
Founders would not, hypothetically, thus have construed the contract clause in
modern circumstances. Hughes' point may be reformulated as follows: Since the
interpretation of cultural conventions like law requires that we construe them as
reasonable systems of advancing individual and collective purposes, one must hes-
itate to impute an irrational or self-defeating purpose in the way that counterfactual
application of constitutional language may demand, unless clear evidence so re-
quires. In the case of the American Constitution ("a constitution intended to endure
for ages to come"), there is no such evidence. Indeed, few legal systems have
been so much the product of rational and reflectively self-conscious design in light
of the best available political theories of republican government, nor so acutely
sensitive to the recognition (rife in Enlightenment thought) that human institutions
change as circumstances change and that good government must accommodate to
new experience.10
Third, the general normative clauses derived their force and meaning from a
larger political and moral culture which perceived the human rights embodied in
these clauses as grounded in inviolable and enduring principles of justice. General
enforcement of these clauses, as abstract principles accommodated to the circum-
stances of evolving historic situations, would ensure a basic framework or structure
of just institutions over time.11 The interpretation of the clauses as embodying
abstract intentions is more consistent with these moral norms.
Fourth, the judicial elaboration of constitutional doctrine over time coheres only
with the broader interpretive approach. If we are trying to make sense of the entire
constitutional design, this must include not only language, historical evidence of
Founders' intent, and surrounding cultural conventions and norms, but the traditions
of judicial review which have construed constitutional language over time.12 These
traditions are reflected in conventions of judicial interpretation, identification, and
application of law. One should hesitate to use one kind of data (Founders' intent,
for example) to undercut the legitimacy of another kind of data (traditions of ju-
dicial review over time) unless there is the strongest evidence of inconsistency and
good reasons to believe that one kind of data invokes the more authoritative pur-
poses of the system. However, aside from a question-begging appeal to one in-
terpretation of Founders' intent (denotative exemplars) which does not even
acknowledge an alternative interpretive approach, there are no such weighty rea-
sons. Other indications of Founders' intent—language, reasonable purpose, cultural
norms—support the abstract intention approach. Even if they did not, it is difficult
to see why, aside from the bad philosophy which supposes strict constructionism
to be the only theory of interpretation, such intent embodies more authoritative
purposes than those reflected in traditions of judicial review.
Fifth, the great appeal of strict constructionism derives from an undefended and
indefensible positivistic conception of popular sovereignty. Berger frequently in-
vokes popular sovereignty in criticizing traditions of judicial interpretation which
betray Founders' intent (viz., Founders' applications of constitutional language)
(e.g., p. 66). According to this view, the people, the fount of political legitimacy,
imposed constitutional limits on the state in terms of the Founders' sense of the
application of constitutional language at the time it was drafted and approved, and
any later judicial deviance from this common sense, no matter how entrenched the
judicial tradition it reflects, is thus fundamentally illegitimate (Founders' intent
must always prevail). But this argument cannot withstand critical examination ei-
ther as a matter of jurisprudence or political theory.
As jurisprudence, positivism, which Berger's argument assumes, has had tra-
ditional problems in explaining how there can be any legal limits on the sovereign.
Bentham, probably the most profound of the early proponents of positivism, strug-
gled unsuccessfully to accommodate the existence of such legal constraints
(exemplified, for example, by the enforceable constitutional guarantees of the
American republic) with the requirement of his positivistic command theory that
there be a sovereign who is habitually obeyed, but who habitually obeys no one.13
The natural move, within positivistic command theory, is to fictionalize a kind of
sovereign who imposes limits on the state, but is itself illimitable, namely, the
people, or popular sovereignty. But, as the more perceptive positivists have always
recognized,14 such a reading of the facts of American constitutional government is
strained indeed, a far cry from the European centralized bureaucracy15 and British
parliamentary supremacy16 which positivist theories have more naturally explained.
How, for example, is this sovereign to be determinately understood? If under-
stood as the historical persons who approved the original Constitution, why should
they bind a later generation long removed in time? If understood as some current
generation, how do we know who they are or what they approve of when most of
them do not understand, let alone reflectively approve, constitutional institutions?
Precisely because of such strain and outright distortion of facts, the most plausible
contemporary forms of positivism have abandoned the kind of command theory
that requires such a futile and disfiguring search for or invention of a fictionalized
sovereign.17 Indeed, these forms of positivism tend to identify valid law with the
critical attitudes reflected in conventions of judicial interpretation, identification,
and application of law (traditions of judicial review), not with Founders or some
other sovereign. Under this contemporary view, in conflicts between judicial con-
vention and Founders' intent it is the former, not the latter, which should govern,
so that, even conceding Berger's argument that Founders' intent and judicial con-
vention are in clear conflict, his conclusion would not follow. But, in fact, as we
earlier noted, there is good reason to reject Berger's stark picture of conflict: The
more reasonable construction of relevant forms of data (language, reasonable pur-
pose, moral conventions, etc.) yields the broader interpretive approach in any event.
As political theory, popular sovereignty has long enjoyed a central place in
intuitive moral conceptions of constitutional legitimacy. But it is important to un-
derstand that popular sovereignty is, if any concept in constitutional discourse is,
essentially contestable, viz., a concept subject to a range of reasonable interpreta-
tions among which good political argument must reflectively choose. Accordingly,
we should resist simplistic interpretations of popular sovereignty which are no more
than persuasive definitions, and certainly do not deal in a principled way with the
arguments supporting alternative conceptions, indeed, do not even acknowledge the
fact of reasonable controversy. Berger's use of popular sovereignty is fatally flawed
in precisely this way, for he uses his explanation of it—the Founders' common
sense of the application of constitutional language—to dismiss alternative concep-
tions without addressing the basic questions of democratic political theory which
his conception of popular sovereignty raises. For example, why, as previously sug-
gested, should a contemporary generation be bound in this way to the will of a
generation long dead?
Surely, there is much in the history of American constitutionalism, at least since
Madison's The Federalist No. 10, to suggest that any purely populist interpretation
of popular sovereignty, either understood as some historical moment or some con-
tinuing acclamation, is not what the most reflective explication of the values of
constitutional government would suggest. Madison's conception of a republic, in
contrast to popular direct democracy, suggests that the institutions of constitutional
democracy (federalism, separation of powers, judicial supremacy) express a com-
plex moral ideal resting not on populism, but on a conception of principles of
justice in which democratic self-rule appears as one constitutional value among
others. One of these is the value of equal liberty of religious conscience so central
to Madison's conception of just government.18 These other values restrain the un-
trammeled pursuit of the popular will by both procedural and substantive con-
straints. For example, Madison's proposal for a procedure of representation of states
in a federal system argues that such representation will minimize the tendency for
democratic politics in a free republic to polarize around factions, which ignore both
the common interest and the rights of minorities.19 Elsewhere, Madison defends
substantive constraints on the power of religious factions intolerantly to oppress
outsiders through law.20
The institutions of democratic self-rule—the separation of powers with its con-
trolling conception of the rule of law, federalism, and judicial supremacy to enforce
basic rights like religious toleration—reflect an attempt to design a complex system
of institutions to realize a form of justice in government, in which the ultimate
value of popular sovereignty reflects an idealized moral conception of persons as

free, rational, and equal.21 So understood, the institutions of constitutional govern-
ment preserve a substantive moral conception of the relation of the person to other
persons and to the state, one in which the equality and liberty of persons are
guaranteed and maintained. If this alternative interpretation of popular sovereignty
is, as I believe, much more sensible as a theory of constitutional government than
any variant of populism (including Berger's),22 the appeal of Berger's argument as
political theory evaporates....
Ill The Death Penalty as Cruel and Unusual Punishment
Once we undermine the theory of legal interpretation which Berger assumes in

Death Penalties, both the form of his historiography and his constitutional argu-
ment lose whatever argumentative force Berger meant them to have. For Berger,
constitutional history is simply a matter of deciphering the Founders' intended
applications; and constitutional argument is obedience to such applications. But
once we see constitutional interpretation in the more plausible way suggested
above, the form of Berger's history appears confining. Berger fails to explore the
ways in which historical research may clarify arguments of constitutional principle,
and his conception of constitutional argument becomes a travesty of arguments of
principle in constitutional law. In particular, Berger ignores the ways in which the
moral growth of the community must inevitably shape the elaboration of the ab-
stract normative intentions of the relevant clauses of the eight and fourteenth
amendments.
A. Historiography
It is a striking feature of both Berger's Government by Judiciary and Death Pen-
alties that the use of history is extremely confined and narrow. Government by
Judiciary concentrates, for example, on the congressional debates over the proposed
fourteenth amendment, with occasional allusions to secondary accounts of the his-
tory of Reconstruction. In contrast, Harold Hyman, an American historian not
bound by an interpretive theory like Berger's, supplements attention to the debates
with detailed and clarifying analyses of the political and social history of Recon-
struction.23 In more recent work, Hyman insists that the fourteenth amendment must
be understood in the context of the egalitarian purposes of the thirteenth amendment
and the larger moral aspirations of the abolitionist movement.24
Berger's interpretive theory directs him away from such inquiries and limits the
scope of the fourteenth amendment to applications contemplated by the Reconstruc-
tion Congress that approved the fourteenth amendment. This historiographical de-
cision leads him to ignore larger historical and cultural contexts that clarify the
abstract ideals of equal respect for human dignity which the fourteenth amendment
decisively introduces into the substantive values of American constitutional law.
Berger's narrow use of history may also lead to serious interpretive distortions of
the limited data he does consider. Plausible inferences about the common sense
applications of ' 'equal protection of the law" in 1868 may confuse abstract argu-
ments of principle with historically contingent and shifting conceptions of appli-
cations and thus lead to wrong judgments about the principle involved. Similarly,
focusing on the application at the time of adoption may constitutionalize one among
several historically competing views of application when the abstract language
chosen precisely bespeaks a warrant for independent judicial elaboration of abstract
arguments of principle.
The historiographical distortion in the use of sources in Death Penalties is, if
anything, more grave. The sources of a larger historical inquiry, which are fun-
damental to a reasonable discussion of the issues of constitutional principle, are
omitted. The material included is thin and interpreted tendentiously.25 A useful
comparison may be made to John McManners' Death and the Enlightenment,26 a
broad survey of changing attitudes to death in various contexts (including natural
deaths, executions, and suicides) in eighteenth century France. For Berger, the
whole historiographical question is the narrow one: whether the Founders would
have applied the eighth amendment or the Reconstruction Congress the fourteenth
amendment to the death penalty. Once the question is resolved negatively, the
matter is forever closed, and Supreme Court opinions to the contrary are simply
wrong. For McManners, the historiography of death in eighteenth century France
demonstrates the emergence of a distinctive modern sensibility regarding death and
dying. McManners, writing of France with no particular focus on legal issues—let
alone American constitutional history—profoundly illuminates the constitutionality
of the death penalty in a way that Berger, the American legal historian, does not
remotely approximate.
McManners' historiography casts light on the constitutionality of the death pen-
alty in diverse but intersecting ways. First, the modern sensibility regarding death,
which McManners traces to the eighteenth century, took one characteristic form as
a reformist skepticism about the form and the scope of use of the death penalty as
a criminal sanction.27 This skepticism is likely to have affected the American En-
lightenment and constitutionalism through the writings of Beccaria,28 which were
widely read at the time.29 McManners makes clear that while the Enlightenment
reformers, including Beccaria—the most penologically radical of them—did not
intend to abolish the death penalty altogether,30 they had severe doubts about its
general use. Beccaria, for example, reserved the death penalty for treason against
the state, so that Robespierre could, without inconsistency, attack the death penalty
in general, yet urge the Terror and guillotine against traitors to the republic.31 But
McManners' extensive discussion of Beccaria's arguments, in contrast to Berger's
narrow focus on the simple fact that the death penalty was approved, enables us
to see what Berger's account obscures: that general arguments of principle justified
Enlightenment concern about the extent of application of the death penalty and the
grisly forms of its imposition.32 Though these arguments did not lead them to
question the death penalty as such, the arguments did suggest real moral concerns
with the death penalty, indicating that the values of decency in punishment invoked
by the eighth amendment could certainly be reasonably extended or elaborated to
include questions about the death penalty in a way that Berger wishes to deny.33
Indeed, these arguments of principle, elaborated in modern circumstances, might
question the justifiability of the death penalty itself.
Second, the grotesque forms of the death penalty, against which Enlightenment
figures reacted so violently, were importantly associated with a self-consciously
elaborated drama of terror inflicted on outrageous violations of the majesty of the
hierarchical order, whose patterns of deference needed to be enforced by dramatic
outward shows.34 The natural inference is that a more egalitarian, less hierarchical
conception of political justice must question such uses of terror, or analogous ac-
tions.35 If the imposition of the death penalty in modern times is ineradicably used
as an instrument of freakish terror against subjugated groups to enforce a status
hierarchy, it must be condemned on egalitarian grounds. Strikingly, this objection
to punishments as "cruel and unusual" is supported even by the narrow range of
historical material that Berger canvasses. It is, for example, probably the true sig-
nificance of the Titus Oates affair,36 though Berger, who lacks the perspective of
principle on his own data, misses the point.
Third, extensive use of the death penalty during the eighteenth century was
tolerated because death was so common and likely that the death penalty would
take little that would not otherwise soon be lost.37 Also, given the undeveloped
nature of police work, there was extreme uncertainty that any form of punishment
would be imposed at all, thus leading to emphasis on the severity of sanctions in
order to secure any measure of deterrence.38 When life becomes more securely
valued and certainty in punishment more feasible, the death penalty should be
morally more questionable.
Fourth, theological conceptions of Hell, already under attack throughout this
period and earlier,39 undoubtedly shaped conceptions of justice in punishment. The
more terroristic a conception of Hell, allegedly required to bind us to the moral
life, the greater the toleration for the savageries of the law courts.40 On the other
hand, the more Hell was regarded as inconsistent with the God of love and for-
giveness, the more skeptical the examination of the alleged necessity of the bar-
barous punishments of secular law.41 Complex countervailing relations obtained as
well: The very terrors of the religious conception of Hell, before which all souls
were equal, gave expression to a moral aspiration that the secular law of a hier-
archical and unjust society otherwise systematically frustrated without penalty.42
Thus, evolving religious and moral conceptions of justice through punishment
could crucially shape one's interpretation of the justice of the death penalty, pre-
cisely in the way that Berger's use of historiography fails even to contemplate. In
the modern secular age, belief in a punitive and redemptive afterlife has less force,
and therefore, conceptions of retributive justice in punishment, which require the
death penalty, appear parochially religious.43
Even aside from such questions, surely the very idea of taking life by law must
have a radically different moral sense and significance among people who believe
in redemption in another life and those who see this life as the only life any person
will have, or among people who entertain radical conceptions of free will and those
who accept causal models for the explanation of human actions.44 It is precisely
such shifts in religious, metaphysical, and other beliefs which we invoked earlier
in arguing that the Founders' denotations should not apply counterfactually.
McManners' historiography makes this kind of inquiry possible; Berger's does not.
B. Constitutional Argument
Berger's defective theory of legal interpretation leads not only to bad history, but
to an impoverished conception of constitutional argument. He dismisses all con-
stitutional arguments against the death penalty on the same ground: that the Foun-
ders' common sense of the application of "cruel and unusual punishments"
contemplated the legitimacy of the death penalty. Once we see that this argument
will not do, Berger's critical strategy appears irrelevant to any serious assessment
of these constitutional arguments. Certainly, no argument in Death Penalties even
addresses the arguments of principle made in Supreme Court decisions limiting the
scope and application of the death penalty. Berger's dogged appeal to Founders'
applications would require the Court today to uphold all punishments acceptable
in 1791, including, presumably, branding the forehead, splitting noses, and crop-
ping ears.
The deep question is whether the Court has gone far enough, whether Justices
Marshall and Brennan are not correct in questioning the very constitutional per-
missibility of the death penalty. Since I believe the death penalty is unconstitu-
tional, I should like, in conclusion, to support this position and respond to one of
Berger's criticisms by urging the alternative methods of interpretation earlier pro-
posed.
This criticism is aptly summarized by Berger's descriptive heading: "Judicial
Divination of the People's Will" (p. 122). In general, Berger questions the con-
stitutional legitimacy of the judiciary finding that a form of punishment that the
Founders regarded as valid is no longer consistent with the eighth and fourteenth
amendments because the moral values of the people today reject it. He claims that
the judiciary's divinations are often wrong, that the proper institution to register
changes in moral values is the legislature, and that any judicial attempt to repudiate
clear legislative expressions of moral values, as in Justice Marshall's appeal to an
informed citizenry, is arrogantly elitist and antidemocratic.
In making this criticism, Berger appeals, as he does throughout Death Penalties,
to his central political ideal—popular sovereignty. But, as I suggested earlier, it is
difficult, as a matter of jurisprudence or political theory, even to make sense of
American constitutionalism on Berger's populist interpretation of popular sover-
eignty. Indeed, it is difficult to square even Berger's strict constructionism with
these values. (Why should the people now be bound by the people of some earlier
time?) There is, however, as suggested above, a plausible alternative interpretation
of popular sovereignty: an abstract moral ideal of free, rational, and equal persons.
This view of popular sovereignty makes better sense of constitutional institutions
and doctrines, including my imputation to the relevant clauses of the eighth and
fourteenth amendments of an abstract intention of basic justice in the forms of
punishment.
Taking this approach to popular sovereignty, we can posit that free, rational,
and equal persons would be concerned with limiting when and how the state might
impose severe criminal sanctions such as grave deprivations of liberty, and perhaps
life.45 Relevant constraints would include a substantive limit on the application of
criminal sanctions only to conduct that has inflicted harm;46 a principle of equal
liberty requiring that sanctions be imposed so as to guarantee each person the
greatest liberty, consistent with a like liberty for all, to avoid the sanctions if he
chooses; a principle of proportionality with two requirements: first, a rough cor-
respondence between severity of wrongs and gradations among punishments; and
second, substantive upper limits on forms of sanction in general (prohibiting torture
as inconsistent with respect for dignity) and in particular (prohibiting severe sanc-
tions for trivial wrongs)47 and a principle of economy and effectiveness in sanc-
tions, that would, consistent with the underlying respect for the humanity of
criminals, limit the forms of sanctions to the most economical and effective in
securing general deterrence and the like.48
Consistent with our earlier conception of constitutional interpretation, we may
construe these principles as defining a constitutionally mandated conception of just
punishment in several mutually supporting ways: as abstract intentions implicit in
the salient history of the relevant clauses (for example, the Titus Gates affair) and
the general language chosen, as supported by an imputation of reasonable purpose
accommodating relevant changes in facts or values; as inferred from the back-
ground norms of justice in punishment on which constitutional clauses draw; or as
explicating the traditions of judicial elaboration of these constitutional values in
case law over time.
To elaborate on several of these themes, the factors mentioned in our discussion
of McManners' historiography provide a useful illustration. First, the ineradicable
arbitrariness of the death penalty suggests it is being used as an instrument of terror
and subjugation, thus violating the principle of equal liberty. Second, increasing
belief in causal explanation for human action suggests that deterrence evidence
must be given a salient place in the justification of forms of criminal sanctions.
The greater value of life (both due to contemporary longevity and to declining
belief in an afterlife) imposes a higher justificatory burden for imposition of the
death penalty to demonstrate its economy and effectiveness as deterrence; further-
more, the feasibility of securing more deterrence from certain, rather than severe,
sanctions imposes on proponents of the death penalty a burden of showing marginal
deterrence which they cannot satisfy.49 These considerations suggest that however
the basic principles of justice in punishment would have been applied in 1791 or
1868, relevant considerations of fact or value today argue that the death penalty is
either so fatally arbitrary and terroristic or so lacking in support by evidence of
marginal deterrence that it violates basic constitutional principles, and should be
struck down as, in principle, an unconstitutional sanction.50
That these principles may be traced to a plausible interpretation of the basic
constitutional value of popular sovereignty supports the depth of their constitutional
force. That persons in different historical periods may, consistent with the back-
ground considerations unearthed by McManners, apply them differently suggests
precisely the kind of flexible application which enduring constitutional principles

enjoy. These are plausible, in my view conclusive, reasons to suppose that the
reasonable elaboration of these principles in modern circumstances would sharply
circumscribe, indeed eliminate, the death penalty as a constitutionally permissible
punishment.
From this perspective, the appeal to Founders' applications misconceives the
proper role of the judiciary in the elaboration of the abstract intentions of relevant
constitutional clauses precisely in ways that reinterpret Founders' applications, and
sometimes abandon them entirely. In the case of the death penalty, the appeal to
the Founders' applications is, as we have seen, constitutionally perverse: The man-
datory form of the death penalty familiar to the Founders is a radically different
institution from the discretionary and selective (even with guidelines) application
of the death penalty familiar today. Indeed, enacted in discretionary forms that
permit its rare application to a small number of outcasts, the death penalty enjoys
acceptability precisely because of the rarity of its imposition by juries and still rarer
actual infliction by public authority. This pattern suggests, if anything, that the
death penalty's continuing legitimacy rests on the fact that it is not regularly, rou-
tinely, evenhandedly, and visibly applied to those for whom, given the statutory
language, it is designated. Even within the narrowest historical inference of the
concerns giving rise to the eighth amendment (Titus Oates), the legitimacy of a
penalty that is dependent on its being unusually inflicted implicates the prohibition
of "cruel and unusual punishments."
It was a serious constitutional misjudgment on the part of many recent Justices
of the Supreme Court, in my view, ever to suppose that the legitimacy of these
kinds of reasoned judgments about the unconstitutionality of the death penalty
turned on popular sentiment or some kind of judicial divination about conventional
morality. For this is to externalize the process of constitutional deliberation into a
kind of opinion poll, on the unexamined supposition that judicial impartiality here
requires this kind of external moral metric. But the supposition is false, leading
judges of intelligence and integrity to abdicate what is their clear constitutional
duty—to exercise their own independent consciences in the reflective elaboration
of constitutional principles, which is the only authentic form of impartiality ex-
pressive of the moral powers we associate with judicial virtues. The escape from
this responsibility (whether in obedience to the fictive denotations of the Founders,
or the imagined demands of public opinion) is, however natural, a betrayal not
only of self but of the moral integrity that we should demand from constitutional
judges, and an evasion of responsibility in the service of unreal masters and in-
vented, hystericalized dangers.
The principled elaboration of constitutional values prohibiting cruel and unusual
punishment should no more track the retributive thirst of the American public than
the interpretation of equal protection tracks American racism or sexism. In all these
cases, the judiciary's role should be to articulate the moral sense of abstract prin-
ciples of just government in contemporary circumstances. This process may require
the Court independently to evaluate background constitutional facts which may,
through racist or sexist science,51 abuses of psychiatry,52 distortions of history and
religion,53 grossly culpable ignorance of or inadvertence to marginal deterrence

evidence54 otherwise disfigure the dignified elaboration of constitutional law. Often,
the consequence of unpopular decisions which expand judicial protection of human
rights is not the feared loss of institutional capital,55 but, over time, a transformation
of American conventional morality in the ethically required way that constitutional
principle demands.
Such judgments are neither elitist nor antidemocratic, for they express no dis-
respect or contempt for human dignity or equality. To the contrary, Justice Mar-
shall's and Justice Brennan's view of the unconstitutional^ of the death penalty
precisely expresses the demand that populist retributivism—itself compounded of
fear and ignorance and much stereotypical contempt—constrain itself by consti-
tutional demands that criminals, even vicious ones, are to be treated as persons.
It is natural, in closing, to appeal to the value of respect for dignity—that per-
sons should be treated as persons, not as criminal outcasts beyond the pale of
humane concern. Berger finds the value of dignity without constitutional force
because it requires reassessment of Founders' applications—the fount of constitu-
tional legitimacy (see p. 12). But if his account of constitutional legitimacy is
deeply defective, as I have argued, that may confirm precisely why dignity has the
central place that it enjoys in the jurisprudence of the eighth and fourteenth amend-
ments, and much other constitutional argument and discourse. For, if allegiance to
Founders' denotations appears as a shallow and empty constitutional ideal, dignity
is a value that endures. It enables us to understand our law and our lives as lawyers
as inspirited with a living and reasonable faith in constitutional government that
produces an endless demand on us for justice through law. There is no disassocia-
tive positivist alienation here (as in obedience to Founders' applications), but the
more integral expression of our moral powers as lawyers to keep faith in the best
of our constitutional traditions.
Notes
1. R. Berger, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOUR-
TEENTH AMENDMENT (1977).
2. For the classic statement of the positivist model of legal interpretation on the model
of paradigm cases, see H. L. A. Hart, THE CONCEPT OF LAW ch. VII (1961). For example,
a legal rule to the effect that no vehicle may be taken into the park is interpreted in terms
of "the paradigm, clear cases (the motor-car, the bus, the motor-cycle)." Id. at 125.
3. See H. Hart & A. Sacks, THE LEGAL PROCESS 1414-15 (Harvard Law School tent,
ed. 1958); see also R. Dickerson, THE INTERPRETATION AND APPLICATION OF STATUTES ch.
12 (1975).
4. Cf. R. Dworkin, Law as Interpretation, 9 CRITICAL INQUIRY 179 (1982).
5. See Williams v. Florida, 399 U.S. 78, 117 (1970) (Harlan, J., concurring).
6. See Lovett v. United States, 328 U.S. 303 (1946); United States v. Brown, 381 U.S.
437 (1965).
7. See THE FEDERALIST No. 78 (A. Hamilton).
8. 290 U.S. 398 (1934).
9. For relevant history of the period of the 1780's, see G. Wood, THE CREATION OF
THE AMERICAN REPUBLIC 1776-1787, at 393^467 (1969); C. Miller, THE SUPREME COURT
AND THE USES OF HISTORY 39-51 (1969).
10. See D. Adair, FAME AND THE FOUNDING FATHERS 3-26, 93-140 (1974).
11. See generally G. Wood, supra note 9; B. Bailyn, THE IDEOLOGICAL ORIGINS OF THE
AMERICAN REPUBLIC (1967); M. White, THE PHILOSOPHY OF THE AMERICAN REVOLUTION
(1978); H. Commager, THE EMPIRE OF REASON 176-235 (1977); H. May, THE ENLIGHT-
ENMENT IN AMERICA 88-101, 153-76, 197-251 (1976).
12. See Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REV.
204 (1980); Fiss, Objectivity and Interpretation, 34 STAN. L. REV. 739 (1982). But cf. Brest,
Interpretation and Interest, 34 STAN. L. REV. 765 (1982) (taking a more skeptical view of
his earlier position); Brest, The Fundamental Rights Controversy: The Essential Contradic-
tions of Normative Constitutional Scholarship, 90 YALE L.J. 1063 (1981) (same) [hereinafter
cited as Brest, The Fundamental Rights Controversy].
13. See H. L. A. Hart, ESSAYS ON BENTHAM 220-42 (1982).
14. See H. L. A. Hart, THE CONCEPT OF LAW 49-76 (1961); H. L. A. Hart, supra note
13, at 220-68.
15. See H. Kelsen, PURE THEORY OF LAW (M. Knight trans. 1967); H. Kelsen, GENERAL
THEORY OF LAW AND STATE (A. Wedberg trans. 1961).
16. See J. Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED (H. L. A. Hart ed.
1954).
17. See H. L. A. Hart, supra note 14; J. Raz, THE CONCEPT OF A LEGAL SYSTEM (1970);
J. Raz, PRACTICAL REASON AND NORMS (1975); J. Raz, THE AUTHORITY OF LAW (1979);
N. MacCormick, LEGAL REASONING AND LEGAL THEORY (1978).
18. See Madison, Memorial and Remonstrance, 1785, in THE MIND OF THE FOUNDER:
SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 8-16 (M. Meyers ed. 1973).
19. For a range of commentary on Madison's argument, widely diverging in perspective,
see, for example, D. Adair, FAME AND THE FOUNDING FATHERS 75-140 (1974) (way of
securing moral impartiality in political leaders); G. Wills, EXPLAINING AMERICA: THE FED-
ERALIST 179-264 (1981) (following Adair); R. Dahl, A PREFACE TO DEMOCRATIC THEORY
(1956) (defense of polyarchy); C. Beard, AN ECONOMIC INTERPRETATION OF THE CONSTI-
TUTION OF THE UNITED STATES v-vii, 14-16, 152-88 (1935) (reduction to economic inter-
ests).
20. See Madison, supra note 18, at 8-16. In addition to his role in the history of religious
freedom in Virginia, Madison was, of course, the central figure in both the drafting and
approval of the free exercise and anti-establishment clauses of the first amendment. For a
discussion of the pertinent historical records, see 1 A. Stokes, CHURCH AND STATE IN THE
UNITED STATES 538-52 (1950).
21. See generally J. Rawls, A THEORY OF JUSTICE (1971).
22. See D. Richards, THE MORAL CRITICISM OF LAW 39-56 (1977).
23. H. Hyman, A MORE PERFECT UNION (1973). Compare the similar observation about
the comparative value of constitutional historiography in Tushnet, Following the Rules Laid
Down, 96 HARV. L. REV. 781, 795 n.39 (1983).
24. I depend here on a paper delivered to a faculty colloquium at N.Y.U. School of
Law, where Harold Hyman is the Visiting Meyer Professor, 1982-83, H. Hyman, Back of
Bakke: Eclectic Elements in the Creation of the Fourteenth Amendment (unpublished man-
uscript on file with the California Law Review). See also H. Hyman & W. Wiecek, EQUAL
JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT, 1835-1875, at 386-438 (1982).
Hyman's interpretive approach converges with that of my colleague William E. Nelson; see
W. Nelson, THE ROOTS OF AMERICAN BUREAUCRACY 1830-1900 (1982), and his general
work in progress on the fourteenth amendment. See also R. Cover, JUSTICE ACCUSED:
ANTISLAVERY AND JUDICIAL PROCESS 154-55 (1975).
25. A striking example of this tendentiousness is Berger's dismissal of what seems to
be clear and relevant evidence that the language of "cruel and unusual punishments" was
understood by the Founders possibly to someday invalidate punishments conventionally
supposed legitimate in 1791, namely, Livermore's objection: "it is sometimes necessary to
hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are
we in future to be prevented from inflicting these punishments because they are cruel" (pp.
45-46). Berger's dismissal rests on what he supposes to be the clear language of the fifth
amendment—that "[n]o person shall be ... deprived of life . . . without due process of
law"—which, contemplating the death penalty, must be read to express an intent that the
eighth amendment should never invalidate the death penalty (pp. 45-47). But the issue posed
by the language of the fifth amendment—namely, that a taking of life can only occur if it
satisfies a process regarded as due—is the same kind of issue which the eighth amendment
raises regarding the constitutional legitimacy of punishments in general, if anything, sug-
gesting a higher burden of justification in the case of the imposition of capital punishment.
If the imposition of a death penalty cannot satisfy the demanding requirements of the eighth
amendment, a fortiori it can no longer be regarded as consistent with due process. Accord-
ingly, there is no stronger evidence inferable from the fifth than from the eighth amendment
about the permanent constitutional legitimacy of the death penalty, and Livermore' s objec-
tion, which certainly was made in a context contemplating the eighth amendment as well,
provides very good evidence indeed that the abstract intention approach was thought appro-
priate to the normative clauses of the Bill of Rights. Berger is unable to deal with historical
evidence in a dispassionate way (and acknowledge weakness in his own position) precisely
because he does not evaluate data as a historian, but rather as the unconscious and partisan
advocate of a theory of legal interpretation which is, qua theory of interpretation, almost
certainly indefensible, as we have seen. For further explorations of Berger's misinterpreta-
tions of his own data, see S. Cillers, Berger Redux 92 Yale Law Journal 731 (1983).
26. J. McManners, DEATH AND THE ENLIGHTENMENT (1981). See also P. Aries, THE
HOUR OF OUR DEATH (H. Weaver trans. 1981); D. Stannard, THE PURITAN WAY OF DEATH
(1977).
27. J. McManners, supra note 26, at 392-408.
28. C. Beccaria, ON CRIMES AND PUNISHMENTS (H. Paolucci trans. 1963).
29. For the many American readers of Beccaria in the historical period leading to the
Constitution and Bill of Rights, see H. May, THE ENLIGHTENMENT IN AMERICA 118 (1976).
For the continuities between the European and American Enlightenment, see id.; H. Com-
mager, THE EMPIRE OF REASON: How EUROPE IMAGINED AND AMERICA REALIZED THE
ENLIGHTENMENT (1977); G. Wood, supra note 9; B. Bailyn, supra note 11, at 22-93; M.
White, supra note 11.
30. J. McManners, supra note 26, at 392-408.
31. Id. at 403.
32. On its grisly forms, see id. at 368-84. For an appalling description of one of the
more grotesque executions, see M. Foucault, DISCIPLINE AND PUNISH 3-6 (A. Sheridan trans.
1977).
33. Certainly, the preoccupation of Enlightenment thought with limiting both the crimes
for which death was a legal penalty and the ways in which the death penalty was carried
out, see J. McManners, supra note 26, at 392-408, suggests a principled continuity with the
ways in which the Supreme Court has limited the forms, procedures, and scope of the death
penalty, see, e.g., Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153
(1976); Coker v. Georgia, 433 U.S. 584 (1977).
34. J. McManners, supra note 26, at 130.
35. Cf. Hay, Property, Authority and Criminal Law, in ALBION'S FATAL TREE (D. Hay,
P. Linebaugh, J. Rule, E. Thompson & C Winslow eds. 1975) (arguing that in 18th century
England the wealthy ruling class could afford to be benevolent and oppose the imposition
of the death penalty on humanitarian grounds, since the possibility of the death penalty
reinforced the social and political hierarchy).
36. Titus Gates was a minister of the Church of England, whose perjured testimony
about a Catholic plot to assassinate the king led to the execution of 15 Catholics for treason.
In 1685, Gates was convicted of perjury and sentenced to a fine, life imprisonment, whip-
ping, pillorying four times a year, and defrocking. The House of Lords rejected Gates'
petition to be released from the judgment; the dissenting members emphasized that defrock-
ing by a temporal court was "unusual" because that was the function of an ecclesiastical
court, and that the punishments of life imprisonment and whipping were without precedent
for the crime of perjury (pp. 36-39).
38. Id. at 376-79.
39. Id. at 176-90. For a discussion of comparable arguments made in the 17th century,
see D. Walker, THE DECLINE OF HELL: SEVENTEENTH CENTURY DISCUSSIONS OF ETERNAL
TORMENT (1964).
41. Id. at 176-79.
42. Id. at 130, 134.
43. See Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COLUM. L. REV.
391 (1963).
44. Kant's theory of punishment, which defends a strict form of lex talionis without any
concern whatsoever with considerations of deterrence, is the clearest example in the philo-
sophical literature, in my opinion, of the effects of a theory of radical freedom (moral
freedom in action cannot for Kant, be causally explained) on conceptions of justice in
punishment. See I. Kant, THE METAPHYSICAL ELEMENTS OF JUSTICE 99-107 (J. Ladd trans.
1965).
45. For further developments of this position, see D. Richards, supra note 22, at 192-
259 (1977); Richards, Human Rights and the Moral Foundations of the Substantive Criminal
Law, 13 GA. L. REV. 1395 (1979).
46. See D. Richards, SEX, DRUGS, DEATH AND THE LAW 1-20 (1982).
47. See D. Richards, THE MORAL CRITICISM OF THE LAW, at 240-44; Richards, supra
note 45, at 1418 (distinguishing the two sub-principles).
48. See D. Richards, supra note 15, at 244-45; Richards, supra note 45, at 1418-19.
49. See D. Richards, supra note 45, at 225, 262 n. 72.
50. Id. at 229-59.
51. See, e.g., N. Block & G. Dworkin, THE IQ CONTROVERSY (1976); J. Blum, PSEUDO-
SCIENCE AND MENTAL ABILITY (1978); S. Gould, THE MISMEASURE OF MAN (1981); R.
Hofstadter, SOCIAL DARWINISM IN AMERICAN THOUGHT (1944); G. Myrdal, AN AMERICAN
DILEMMA (1944).
52. See R. Bayer, HOMOSEXUALITY AND AMERICAN PSYCHIATRY (1981).
53. See J. Boswell, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY (1980);
A. Douglas, THE FEMINIZATION OF AMERICAN CULTURE (1977); RELIGION AND SEXISM (R.
Ruether ed. 1974).
54. These cases exemplify, in my judgment, the important truth that the judiciary's
constitutional role in the elaboration of constitutional values requires it independently to
assess underlying factual questions which, without scrutiny, would distort and disfigure the
elaboration of constitutional values. There can, consistent with the judiciary's role, be no
sharp distinction between values and facts in this area: values shape facts, and facts assume
values. For a telling example of distortion, see Stell v. Savannagh-Chatham County Bd. of
Educ., 220 F. Supp. 667 (S.D. Ga. 1963) (upholding segregated school system on basis of
alleged differential learning potentials of black and white children), rev'd, 333 F.2d 55 (5th
Cir. 1964). It is a separable question, given that the judiciary must examine constitutional
facts, how such facts should be raised in litigation. The general issue is brilliantly posed by
the materials in P. Brest, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 894-953 (1975).
See also Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980).
55. For extended use of this concept, albeit not in support of contracted interpretations
of constitutional rights, see J. Choper, JUDICIAL REVIEW AND THE NATIONAL POLITICAL
PROCESS (1980). For a telling criticism of the concept, see Gunther, The Subtle Vices of the
"Passive Virtues/' 64 COLUM. L. REV. 1 (1964).
17
Why the Death Penalty Is a Cruel and

Unusual Punishment
H. A. BEDAU
It is convenient to begin by examining a recent account of cruelty inspired by the

great eighteenth century French opponents of the cruelties of their day. According
to this account, "cruelty" is "the willful infliction of physical pain on a weaker
being in order to cause anguish and fear."1 The very ambiguity of this definition
may enhance its attractiveness: In whom are the "anguish and fear" of "cruelty"
willfully caused—the victim or the witnesses, or both? When this concept of cruelty
is used to judge the death penalty, it certainly fits classic paradigms of cruel exe-
cution: Roman crucifixion, Tudor disembowelments, tearing asunder by L'ancien
regime. Perhaps even the fusillade of rifle bullets that cut down Gary Gilmore in
Mormon Utah or the repeated jolts of high-voltage electric current used recently
by sovereign Georgia to broil Alpha Otis Stephens—these too might fall under the
scope of cruelty as defined above. But capital punishment as such? Never. Where
the death inflicted is not "physically" painful, it apparently cannot be cruel. Where
the intention is not to cause anyone "anguish and fear"—not the condemned of-
fender or the official witnesses or the general public—but merely to blot out the
criminal once and for all, cruelty evaporates. What emerges from this plausible
definition is exactly what modern friends of the death penalty have always insisted:
Capital punishment is not, per se, an excessively severe, "cruel and unusual pun-
ishment," even if (as all sensible persons agree) some of its historic modes of
infliction were.
But cruelty as defined above is only the first, not the last, word on the subject.
Another thoughtful recent writer, equally steeped in the seminal thinking of the
eighteenth century about cruelty as well as in the widespread horrors of our own
time, invites us to think about the subject in a more imaginative, thematic fashion,
and thus to go beyond what any typical dictionary will tell us about human cruelty.
If we do this, we will see that the very "heart of cruelty" is best described as
"total activity smashing total passivity."2 Cruelty, on this view, consists of "sub-
Reprinted from "Thinking About the Death Penalty as Cruel and Unusual Punishment," University of
California-Davis Law Review 18 (summer 1985): 873-925 by permission of the publisher. Only pages
917-24 are reprinted here; some footnotes have been omitted, others revised, and the rest renumbered.
232
Why the Death Penalty Is a Cruel and Unusual Punishment 233
ordination, subjection to a superior power whose will becomes the victim's law."
Where cruelty reigns, therefore, there is a "power-relationship between two par-
ties," one of whom is "active, comparatively powerful," and the other of whom,
the victim, is "passive, comparatively powerless."3 These penetrating observations,
proposed originally without any explicit or tacit reference to punishment under law,
much less the death penalty, nonetheless are appropriate to it. They reveal the very
essence of capital punishment to be cruelty. Whether carried out by impalement or
electrocution, crucifixion or the gas chamber, firing squad or hanging, with or
without "due process" and "equal protection" of the law, there is always present
that "total activity" of the executioner and the "total passivity" of the condemned.
The state, acting through its local representatives in the execution chamber, smashes
the convicted criminal into oblivion. The one annihilates—reduces to inert lifeless
matter—the other. If this is a fair characterization of cruelty, then the death penalty
was, is, and always will be a cruel punishment.
What is most compelling about the concept of cruelty understood as a "power-
relationship" in the foregoing manner is that it focuses our attention on the salient
common factor in all situations where the death penalty is inflicted, however pain-
lessly and whatever the condemned has done. For western philosophy, the classic
example of capital punishment is provided by the case of Socrates, whose death
(if we may believe Plato and Xenophon) was painless and administered by his own
hand from the cup of hemlock, which he drank by order of the Athenian court that
sentenced him to death. If such a method of execution were revived today it could
not easily be condemned as "undignified" and thus an assault on "the dignity of
man," said to be the central value protected by the constitutional prohibition of
"cruel and unusual punishments."4 Today, with the growing use of lethal injection,
and when even more acceptable modes of execution are invented and adopted in
the future, the same difficulty arises. With death carried out by the state in a manner
that does not disfigure the offender's body, apparently causes no pain whatever,
and brings about death within a few minutes, it is extremely difficult and maybe
even impossible to construct a convincing argument that condemns the practice
based on its "indignity." These are awkward facts for those who oppose capital
punishment. But they are completely outflanked when cruelty is viewed as a
"power-relationship" in the manner indicated. Cruelty seen in this fashion enables
us to recognize that the death penalty is and will remain cruel no matter how or
on whom it is inflicted.
The idea of such total obliteration offends our moral imagination, however, only
if we grant that using the death penalty destroys something of value. We must
explain what is wrong about cruel punishments and why it matters so much. The
only kind of answer worth seeking is one that reveals the worth to us (and not
only or even primarily to the person cruelly punished) of what cruelty destroys.
But what value is there in a deservedly condemned criminal? It does not suffice
to say, even if it is true, that "there is a nonwaivable, nonforfeitable, nonrelin-
quishable right—the right to one's status as a moral being, a right that is implied
in one's being a possessor of any rights at all."5 Traditional theories of "natural
rights" in the seventeenth and eighteenth centuries fully acknowledged that a per-
son's "natural rights" included a "right to life."6 But according to these theories
this right is "forfeited" by any act of killing another person without excuse or
justification.7 There are, to be sure, difficulties with the idea of forfeiture of natural
rights. Whether they are any graver than the difficulties in the alternative is not
obvious. The alternative holds that there is nothing a person can do or become by
virtue of which the person loses the status of a moral agent. This is one way to
express the underlying conception of the person as shielded by fundamental rights,
including the right to life. The essence-relative argument [details of which are
omitted here] against the death penalty as a "cruel and unusual punishment" turns
on it. Without such a conception, we cannot resist the obvious inference: Once a
person is fairly found guilty of a ghastly crime (for example, mass or serial murder,
or genocidal murder), then the offender has no moral "worth" or residual "dig-
nity," and deserves no minimal "respect" from society. Only with such a con-
ception of fixed rights can we avoid such an inference.
The argument can be advanced from each of three directions. The first draws
upon familiar constitutional principles. According to these principles, even the per-
sons convicted of the gravest crimes retain their fundamental rights of "due process
of law" and "equal protection of the laws." These rights are not forfeitable and
cannot be waived. If government officials violate them, that is sufficient to nullify
whatever legal burdens were placed on the person arising out of that violation and
quite apart from whatever consequences may ensue. What this shows is that our
society already has in place, and fully acknowledges, the principle that the indi-
vidual cannot do anything that utterly nullifies his or her "moral worth" and
standing as a person. The essence-relative argument against the death penalty thus
does not aim to invent an unfamiliar type of reasoning and then inject it into
constitutional thinking. It merely extends something that has long been done into
the area of the substantive constitutional law of punishments.
The second line of reasoning draws upon quotidian experience. This assures us
that those persons actually condemned by law to die for their crimes are not merely
living members of homo sapiens but are also persons capable of the full range of
moral action and passion indigenous to moral creatures. However dangerous, ir-
rational, self-centered, stupid, or beyond improvement such a person may in fact
be, these deficiencies do not overwhelm all capacity for moral agency—for re-
sponsible action, thought, and judgment, in solitude and in relationship with other
persons.8 In particular, none of these capacities vanishes as a result of the person's
being at fault for causing wilful, deliberate homicide. The act of murder does not
cause the varying moral capacities of murderers that experience amply reveals.9 No
plausible empirical argument can support an alleged loss of moral agency in a
convicted murderer as a result of the act of murder. Even more to the point, so far
as moral agency is concerned, there is no evidence to show that convicted mur-
derers are different from other convicts.10 So the doctrine that certain persons, who
had basic human rights prior to any criminal acts, forfeit or relinquish all those
rights by such acts and thereby cease to be moral persons, receives no support
from experience.
The third direction in which to look for support is more obscure and contro-
versial; it concerns moral theory and the nature of the person. Despite recent re-
marks from the federal bench11 expressing hostility to all such theories, they cannot
be ignored. Human beings are not merely biological specimens of the species homo
sapiens; nor are we merely self-motivating information-processing creatures. We
are moral beings; the meaning of this proposition cannot be intuitively grasped or
read off from any value-neutral set of descriptions about our behavioral capacities.12
It can be understood only as the product of reflective thought about our own ca-
pacities as agents and patients, and any remotely adequate account will embody or
rely upon moral theory. As a consequence, the nature of the person (as well as any
account of that nature) itself changes over time as a result of changes in our self-
perceptions. History assures us that we are permanently engaged in our own pro-
gressive self-understanding as individuals and as societies. For several centuries—
and in particular, since the Age of Enlightenment—philosophers have struggled to
enunciate a conception of the person as fundamentally social, rational, and auton-
omous, and as immune to change in these respects by virtue of any contingencies
of history or circumstance. Such personal traits and capacities are no guarantee
against immorality in private or public conduct. Nor do they protect us from mor-
tality; they decay with senescence and can vanish prior to biological death. It is
also true that in particular cases illness, abnormality, and other misfortunes can
prevent their normal development in otherwise "normal" persons. Yet these ca-
pacities are not, and cannot be thought of as, vulnerable to destruction by the
agent's own acts that are deliberate, intentional, responsible—the very qualities
properly deemed necessary in a person's conduct before the criminal law subjects
a person's harmful conduct to judgment, condemnation, and punishment. On such
a theory, even the worst and most dangerous murderer is not a fit subject for
annihilation by others. Not even the convicted criminal is a mere object, a thing,
to be disposed of by the decision of others, as though there were no alternative.
Society has no authority to create and sustain any institution whose nature and
purpose is to destroy some of its own members. So cruelty, which does this, mat-
ters—because our own status as moral creatures matters. Accordingly, deliberate,
institutionalized, lethally punitive cruelty matters, too. Bringing it to an end in all
human affairs heads the list of desiderata for any society of persons who understand
themselves as moral agents.
Why a theory with the consequences sketched above should be accepted in
preference to alternative theories of the person is far too large a question to try to
answer here. Until it is answered satisfactorily, however, its conception of the
person will not convince the unconverted. Today's handful of literate friends of
the death penalty are unaware of or unpersuaded by it; one can only speculate
about what they would offer in its place. Fortunately, during the past decade or so
(indeed, coincident with but wholly independent of the Supreme Court's death
penalty cases beginning with Furmari) several philosophers have begun thorough
and systematic work toward developing versions of this theory,13 including versions
that connect it with our constitutional tradition in general and with the concepts
employed in the Bill of Rights and fourteenth amendment in particular.14 It must

suffice here to point in this direction and leave to others and for other occasions
the detailed characterization and evaluation of this theory.15
If the death penalty is an excessively severe punishment, as I believe, then it is
in part because the best conception of the person is the one sketched above. Ac-
cording to that conception of the person, given the familiar facts of our society in
this century, and given the unalterable nature of the death penalty itself, this kind
of punishment—even when carried out in the most dignified fashion, on the most
hardened offenders, for the most heinous crimes—exceeds the severity that society
acting through its government may employ. Translated into the terms of the se-
verity-limiting language of the Constitution, the death penalty thus is a * 'cruel and
unusual punishment."
Notes
1. J. Shklar, ORDINARY VICES, 7-44 (1984).
2. P. Hallie, CRUELTY (1982).
3. Id. at 34.
4. Trop v. Dulles, 356 U.S. 86, 100 (1958), quoted in Furman, 408 U.S. at 270 (Bren-
nan, J., concurring). While I do not wish to rely in my argument on this concept, I do not
wish to hold it up to contempt, either, as some have done, see, e.g., R. Berger, DEATH
PENALTIES: THE SUPREME COURT'S OBSTACLE COURSE (1984) at 118 ("empty rhetoric");
id. at 118 n.30 ("arrant nonsense"), nor repeat the pusillanimities of others. See, e.g., E.
van den Haag & J. Conrad, THE DEATH PENALTY: A DEBATE (1983) at 262, 276, 297-98.
Much the most serious treatment of this concept is given in W. Berns, FOR CAPITAL PUN-
ISHMENT: CRIME AND THE MORALITY OF THE DEATH PENALTY (1979) at 24-28, 162-63.
However, Berns balks (rhetorically?) at the idea that even "the vilest criminal" retains some
"human dignity." Id. at 189.
5. H. Morris, A Paternalistic Theory of Punishment, 18 AM. PHIL. Q. 263 (1981)
at 270.
6. There is no adequate study of the historical sources and content of the "natural right
to life." It is, for instance, virtually unmentioned in the otherwise valuable monograph by
R. Tuck, NATURAL RIGHTS THEORIES: THEIR ORIGIN AND DEVELOPMENT (1979). For dis-
cussion of current themes and references to the standard sources, from Hobbes to Kant, see
M. White, THE PHILOSOPHY OF THE AMERICAN REVOLUTION 185-228 (1981); Bedau, The
Right to Life, 52 THE MONIST 550 (1968); Fletcher, The Right to Life, 63 THE MONIST 135
(1980).
7. See, e.g., J. Locke, Two TREATISES OF GOVERNMENT (P. Laslett 2d ed.) at 172.
8. Anyone who doubts the claims in the text will put doubt aside after reading recent
accounts of men on America's "death rows." See R. Johnson, CONDEMNED TO DIE: LIFE
UNDER SENTENCE OF DEATH (1981). For a discussion of this and other recent studies of life
on death row, see Bedau, Book Review, 28 CRIM. & DELINQ. 482 (1982).
9. See, e.g., Danto, A Psychiatric View of Those Who Kill, in THE HUMAN SIDE OF
HOMICIDE 3-20 (B. Danto, J. Bruhns & A. Kutscher eds. 1982), and the extensive literature
cited therein. No doubt, as Danto notes, "murderers have defective super egos, that is, they
have defective consciences," id. at 7, incontestably proved by their criminal acts. But he
cites no evidence in the research he surveys to contradict the claims in the text.
10. Whether the issue has ever been tested directly is not clear, but it is clear that some
of those who have studied convicted murderers agree with the statement in the text. See,
e.g., A. Morris, HOMICIDE: AN APPROACH TO THE PROBLEM OF CRIME 18-19 (1955) ("[T]he
murderer's mental processes are those common to all of us."). Other research shows that
the murderer is typically male, young, and in other ways like those who commit non-
homicidal crimes of violence against the person. STUDIES IN HOMICIDE 3-4 (M. Wolfgang
ed. 1967). Thus, murderers as a class may well be like other violent offenders and unlike
most non-violent offenders.
11. Thus, Judge Robert R. Bork declared that "contractarian.. .philosophy" (along
with others) is unsuitable as a "constitutional ideolog[y]" because it is "abstract," lacks
"democratic legitimacy," and because "[o]ur constitutional liberties . . . do not rest on any
general theory." N.Y. Times, Jan. 4, 1985, at A16, col. 5. "Contractarian philosophy" is
a generic term the best specific instance of which is the moral philosophy of J. Rawls, A
THEORY OF JUSTICE (1972). Judge Bork also condemned what he described as the attempt
to "substitute" the "abstractions of moral philosophy" for "our constitutional freedoms."
N.Y. Times, Jan. 4, 1985, at A16, col. 5. Rawls and other contractarians do not argue for
such a "substitution"; they do argue that the best theory of these "freedoms" is to be found
in their "moral philosophy"—a very different thesis.
12. It has become standard practice to distinguish several concepts of the person, the
most primitive of which is that of a biological member of homo sapiens and the most
complex of which is that of an autonomous rational claimer of rights. See J. Rosenberg,
THINKING CLEARLY ABOUT DEATH 108-23 (1984). Various commentators believe that a
moral dimension to personhood is necessary to any adequate account of the person. See,
e.g., Dennett, Conditions of Personhood, in THE IDENTITIES OF PERSONS 175-96 (A. Rorty
ed. 1976); see also S. Hampshire, THOUGHT AND ACTION (1959).
13. B. Ackerman, SOCIAL JUSTICE AND THE LIBERAL STATE (1980); A. Gewirth, REASON
AND MORALITY (1978); A. I. Melden, RIGHTS AND PERSONS (1977); J. Rawls, supra note.
11; D. Richards, A THEORY OF REASONS FOR ACTIONS (1971).
14. H. Gross, A THEORY OF CRIMINAL JUSTICE (1979); R. Dworkin, TAKING RIGHTS
SERIOUSLY (1977); D. Richards, THE MORAL CRITICISM OF LAW (1977); D. Richards, SEX,
DRUGS, DEATH AND THE LAW (1982); D. Richards, Human Rights and the Moral Founda-
tions of the Substantive Criminal Law, 13 GA. L. REV. 1395 (1979). Hart has rightly pointed
out that Dworkin "does not appeal to any theory of human nature" to ground his defense
of unwritten constitutional rights. H. L. A. Hart, ESSAYS IN JURISPRUDENCE AND PHILOSO-
PHY 210 (1983). Nevertheless, there is no way to explain Dworkin's position without even-
tually appealing to a "theory" of precisely this sort. See also Respect for Persons, 31
TULANE STUDIES IN PHILOSOPHY (O. Green ed. 1982).
15. The central figure around whose thought these reflections focus is Rawls. See J.
Rawls, supra note 11. His work has received extensive and varied criticism. See B. Barry,
THE LIBERAL THEORY OF JUSTICE: A CRITICAL EXAMINATION OF THE PRINCIPAL DOCTRINES
IN A THEORY OF JUSTICE BY JOHN RAWLS (1973); H. Blocker & E. Smith, JOHN RAWLS'
THEORY OF SOCIAL JUSTICE: AN INTRODUCTION (1980); N. Daniels, READING RAWLS: CRIT-
ICAL STUDIES ON RAWLS' A THEORY OF JUSTICE (1975); R. Wolff, UNDERSTANDING RAWLS
(1977). However, little or none of this criticism is aimed at or touches the conception of
the person central to Rawls' (and allied) moral theory. For an exploration of some of the
issues here, see Daniels, Moral Theory and the Plasticity of Persons, 62 THE MONIST 265
(1979).
18
Habeas Corpus and Other

Constitutional Controversies
H. A. BEDAU
No sooner had the Supreme Court ruled in 1976 that the death penalty was in
principle not an unconstitutionally "cruel and unusual punishment" than attorneys
for death row convicts began to pursue a wide range of other constitutional chal-
lenges to the procedures being followed under the new death penalty laws as they
were applied in particular cases. Such litigation has continued for twenty years and
shows no signs of coming to an end. Most of these cases found their way to the
Supreme Court (even if only to be summarily dismissed) because the federal courts,
however reluctantly, cannot really avoid reviewing complaints that raise federal
constitutional issues. The proof that many of these claims have merit is found in
the high percentage of cases where the federal courts have overturned the state
courts.
Some of these rulings have had sweeping effect on all death row inmates; others
(because of the special peculiarities of the facts of the case) had little or no impact
apart from benefiting the particular death row prisoner who brought the suit in
question. A crucial factor in the impact of any decision is its retroactivity: Will it
be extended to benefit other death row prisoners to whom it could be applied but
who entered death row before the litigating prisoner did? Or will the new ruling
be limited so that its benefits accrue only to those who arrived on death row after
the litigating prisoner? Since 1990 the Supreme Court has refused to grant retro-
active application of any of its new rulings establishing the rights of death row
prisoners, unless very stringent exceptions apply. The denial of retroactive appli-
cation is only one of several ways the Court in its post-Gregg decisions in capital
cases has ruled against the interests of death row prisoners.
Supreme Court Decisions, 1978-1995
In the quarter century since the decision in Furman (and leaving to one side the
post-Furman cases already discussed in part IV), hundreds of death penalty cases
have appeared on the docket of the Supreme Court, leading to several score sig-
238
Habeas Corpus and Other Constitutional Controversies 239
nificant decisions.1 These rulings touch all the main aspects of the procedures in
capital trials, from impaneling the jury to postsentencing appeals. (Untouched by
any Court decisions, however, are prosecutorial discretion and executive clem-
ency—the alpha and omega of the death penalty system.) One cannot understand
the present death penalty system in the United States without some knowledge of
this decisional law. (A selective discussion may be found in The Death Penalty in
the Nineties [1991], by law professor Welsh S. White. For a fuller and more recent
account see Capital Punishment and the Judicial Process [1994], by law professor
Randall Coyne and judicial law clerk Lyn Entzeroth.) Here it is possible to do no
more than summarize the Court's holdings in some two dozen of these cases:
Lockett v. Ohio, 1978. Mitigating circumstances are not confined to those spe-
cifically cited as such in the statute. Rather, the jury must be allowed to hear "any
aspect of the defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death."2
Presnell v. Georgia, 1978. A death sentence is invalid if it is imposed by a jury
that failed to specify any statutory aggravating circumstance during the penalty
phase.
Godfrey v. Georgia, 1980. The aggravating circumstance specified in Georgia's
statute as "outrageously or wantonly vile, horrible or inhuman in that it involved
torture, depravity of mind or an aggravated battery to the victim," is too vague to
be constitutionally permissible. In Walton v. Arizona (1990), however, the Court
held that the aggravating circumstances defined by Arizona's statute as "especially
heinous, cruel or depraved" is not so vague as to be unconstitutional.
Enmund v. Florida, 1982. The death penalty is disproportionate for one who
only aids and abets a murder but does not kill, attempt to kill, or intend to kill the
victim. However, in Tison v. Arizona (1987) the Court ruled that a death sentence
is not disproportionate if the defendant participated in a major way in a felony
involving a homicide and acted with "reckless indifference to the value of human
life."3
Barefoot v. Estelle, 1983 [Texas]. Psychiatric testimony regarding the future
dangerousness of a defendant, placed before the jury by the prosecution seeking a
death sentence, is admissible at the sentencing hearing even if the expert testimony
is not based on any interview with or examination of the defendant. The rules
governing habeas corpus appeal provide no special exceptions in favor of death
penalty petitioners; courts of appeal may apply "expedited procedures" in evalu-
ating such petitions, and stays of execution are not "automatic" pending the filing
and review in this Court of a denial of such a petition by the Court of Appeals.4
Pulley v. Harris, 1984 [California]. Establishing that a death sentence was fairly
imposed by affording "proportionality review," comparing it with other cases in
which death was (and was not) imposed, is not a requirement under the federal
Constitution.5
Spaziano v. Florida, 1984. Florida's statute allowing the trial judge to override
the jury's recommendation of a life sentence and impose a death sentence instead
is not unconstitutional.6
Strickland v. Washington, 1984. Ineffective assistance of counsel will not serve
as a ground for review of the conviction or sentence in a capital case unless counsel
failed to give "reasonably effective assistance" and counsel's errors resulted in a
reasonable probability of a different outcome.7 However, counsel's failure to de-
velop and present mitigating evidence during the sentencing phase was not ineffec-
tive assistance; Burger v. Kemp, 1987 [Georgia].
Ford v. Wainwright, 1986 [Florida]. Execution of the insane is unconstitutional,
and state procedures must accommodate the condemned person's right to submit
evidence of insanity.8
McCleskey v. Kemp, 1987 [Georgia]. Racial disparities in death sentences, how-
ever well established statistically, are insufficient to warrant intervention by the
federal courts, unless those disparities can be traced to intentional discrimination
on racial grounds against the defendant in question. (For a fuller discussion, see
part V.)
Booth v. Maryland, 1987. Victim-impact evidence, showing the pain and loss
suffered by surviving relatives and friends of a murder victim, offered in support
of the prosecution's argument for a death sentence, is inadmissible during the sen-
tencing phase of a capital trial. Overruled in Payne v. Tennessee, 1991.9
Thompson v. Oklahoma, 1988. Oklahoma's statute that permits execution of a
prisoner under age sixteen at the time of the crime is unconstitutional. However,
there is nothing *'cruel and unusual" in Kentucky's law that authorizes a death
sentence and execution for a person at least sixteen years old at the time of the
crime; Stanford v. Kentucky, 1989.10
Teague v. Lane, 1989 [Illinois]. The constitutional ban on race-based peremptory
challenges during the voir dire does not apply retroactively to a prisoner whose
conviction is otherwise final and who raises this issue on collateral review. In
general, "new constitutional rules of criminal procedure will not be applicable to
those cases which have become final before the new rules are announced."11 This
holding was promptly extended to death penalty cases in Penry v. Lynaugh.
Penry v. Lynaugh, 1989 [Texas]. The Eighth Amendment does not prohibit
execution of a mentally retarded defendant; however, mental retardation is a mit-
igating factor the trial jury is entitled to consider during its postconviction delib-
erations prior to sentencing.12
Murray v. Giarrantano, 1989 [Virginia]. States are not required to provide coun-
sel to indigent death row prisoners seeking postconviction relief in state courts.
However, McFarland v. Texas, 1994, held that federal courts must provide counsel
for such defendants in federal litigation.
Ely stone v. Pennsylvania, 1990; Boyde v. California, 1990. A death sentence
imposed under a quasi-mandatory capital statute (requiring the jury to mete out a
death sentence if it finds even one aggravating circumstance and has not received
from defense counsel any evidence of a mitigating circumstance) is not unconsti-
tutional.
demons v. Mississippi, 1990. Despite the sentencing jury's reliance on an un-
constitutional aggravating circumstance in sentencing the defendant to death, the
state appellate court may reevaluate the evidence heard during the sentencing phase
of the trial and sustain the death sentence without returning the case to the trial
court for a new sentencing hearing.
McCleskey v. Zant, 1991 [Georgia]. No successor federal habeas corpus petition
will be granted unless the prisoner can demonstrate "cause and prejudice" for
failure to raise the new claim in his original petition. To do otherwise constitutes
an "abuse of the writ."
Coleman v. Thompson, 1991 [Virginia]. Defendant's counsel's failure to file a
timely notice of appeal in state court does not excuse procedural default unless the
defendant can show "cause and prejudice" in his failure to meet notice deadlines.
Herrera v. Collins, 1993 [Texas]. A death row prisoner convicted under state
law has no right to a hearing in federal courts on grounds of newly discovered
evidence purporting to show the defendant's innocence if the evidence is belated
according to a state statute of limitations, unless the defendant can present a "truly
persuasive show by clear and convincing evidence... that no reasonable juror
would have found the defendant eligible for the death penalty."13
Simmons v. South Carolina, 1994. If the prosecution argues in favor of a death
sentence, on the ground that the convicted murderer is too dangerous ever to be
released, then the prosecution must also inform the jury whether the state provides,
as an alternative to a death sentence, life in prison without possibility of parole.
Felker v. Turpin, 1996 [Georgia]. The tighter standards for federal habeas corpus
relief, enacted by Congress in the Antiterrorisim and Effective Death Penalty Act
of 1996, which prevent the Supreme Court from reviewing a lower court order
denying a prisoner's second habeas petition, are not unconstitutional (for further
discussion, see below, p. 244).
These cases, whose blunt abstracts here barely scratch the surface of the com-
plexity of the issues raised and decided, at least suggest two important generali-
zations. First, since 1976 the Court has become an active referee in the ongoing
conflicts between the state (seeking a death penalty and then seeking to carry it
out) and the defendant (trying to avoid both). The Court has not, however, walked
a very straight and predictable line in its capital decisions and thus has endured
steady criticism from all sides. More than a decade ago, some critics complained
that the overall effect of the Court's death penalty rulings was to give the states
more and more authority over their own death sentencing practices, amounting to
a federal "deregulation of death"; a majority of the Court had simply lost interest
in "telling the states how to administer the death penalty phase of capital murder
trials" (Weisberg 1984:305). More recent observers see no improvements: "the
Supreme Court's chosen path of constitutional regulation of the death penalty has
been a disaster, an enormous regulatory effort with almost no rationalizing effect"
(Steiker & Steiker 1995:426).
Surely this conclusion is strengthened by such decisions as Penry, Giarrantano,
Payne, Coleman, and especially Herrera—"one of those infamous Supreme Court
[decisions] like Lochner and Plessey, that is utterly repugnant to any basic sense
of fairness" (Newton 1994:34). And the upshot? As one recent observer put it,
"[T]hese decisions will increase the likelihood that life and death will be deter-
mined in some cases not by the merits of an individual's claims but by the fortuities
in the timing and pace of litigation which are beyond the individual [defendant's]
control" (Goldstein 1990-91:401-2). Other observers have bluntly described the
situation developing over the past decade as "the death of fairness"14 in death
penalty jurisprudence.
What accounts for this pattern of decisions by the Supreme Court? Surely, in
part it is owing to the transformation of the Court's personnel from the liberal era
under Chief Justice Earl Warren, through the centrist Court under Chief Justice
Warren E. Burger, to the current Court with its libertarian-conservative bent under
Chief Justice William H. Rehnquist.15 Since 1991 Rehnquist and two recent ap-
pointees to the Court, Antonin Scalia16 and Clarence Thomas, have formed the
nucleus around which a majority frequently gathers where twenty years ago Rehn-
quist stood alone. He and these two closest colleagues on the bench profess belief
in federalism, which imposes constraints on federal interference with state prerog-
atives, and in judicial self-restraint when evaluating legislative enactments. There
is no small irony here, in that some of the most sweeping rulings affecting pro-
cedures in important recent capital cases were announced by the Court "without
briefing and argument," without "sufficient explanation," and "with no deference
at all to the traditional requirement that judges confine themselves to the issue as
narrowly framed by the facts of the particular case" (Liebman 1990-91:544-45).
And, finally, it may even be that these conservative justices strongly believe in the
substantive merits of capital punishment. In 1953, as a clerk to Justice Robert H.
Jackson, Rehnquist was prompted by the imminent execution of Julius and Ethel
Rosenberg to note in a memorandum that, in his view, the Rosenbergs were "fitting
candidates" for the electric chair and that "[i]t is too bad that drawing and quar-
tering has been abolished."17
But perhaps the chief reason for the unsatisfactory state of the Supreme Court's
death penalty jurisprudence lies elsewhere, in the inherent difficulties in legisla-
tively fabricating and judicially policing three dozen different death penalty systems
so that each is both fair and efficient. The record of the past two decades shows
that the Court vastly underestimated the difficulty of this task when it decided
Gregg and allied cases in 1976. We now have the most complex and cumbersome
system for administering the death penalty the world has ever seen; it is neither
fair nor efficient. Few like it, and the more familiarity one has with it, the less one
finds to like about it.18
Expressions of despair are even heard from the Supreme Court. Recently, two
Supreme Court justices—Lewis F. Powell Jr. (then retired) and Harry A. Blackmun
(since retired), both of whom supported the death penalty without flinching from
Furman to Gregg and beyond—have now reversed themselves and are on public
record favoring its abolition, thus joining retired Justices Brennan and Marshall in
categorical opposition to the death penalty on constitutional grounds. In 1994 Pow-
ell's biographer reported that when he asked the retired justice whether he would
now change any of his votes in the cases he decided while on the Court, Powell
cited his crucial vote in McCleskey and added, "I would [now] vote the other way
in any capital case" (emphasis added).19 A few months earlier, in his dissent in
Callins v. Collins, Justice Blackmun had written:
From this day forward, I no longer shall tinker with the machinery of death. For more
than 20 years I have endeavored... along with a majority of this Court, to develop
procedural and substantive rules that would lend more than the mere appearance of
fairness to the death penalty endeavor. Rather than continue to coddle the Court's
delusion that the desired level of fairness has been achieved and the need for regu-
lation eviscerated, I feel morally and intellectually obligated simply to concede that
the death penalty experiment has failed. It is virtually self-evident to me now that no
combination of procedural rules or substantive regulations ever can save the death
penalty from its inherent constitutional deficiencies.20
The Quarrel over Federal Habeas Corpus
For a decade or so, the focus of complaint has been on the way state death row
prisoners have used the federal writ of habeas corpus to seek review in federal
court of a wide variety of complaints affecting either their conviction or their
sentence.21 Traditionally, a writ of habeas corpus empowered a judge to "inquire
into the legitimacy of any form of loss of personal liberty."22 No statute of limi-
tations governs a prisoner's access to this writ, nor does a failed application for
the writ preclude the prisoner from filing a subsequent application. In 1867 Con-
gress passed the Habeas Act, empowering state prisoners to obtain federal review
of alleged violations of federal constitutional rights. By the early 1960s a petition
for habeas corpus to the federal courts had become the chief device for attacking
a state court death sentence. Since 1976, with debate over the constitutionality of
the death penalty per se settled adverse to the interests of death row prisoners, their
attorneys increasingly sought habeas relief for their clients in federal courts after
exhausting legal remedies in the state courts (including the remedy of state habeas
corpus). Since it was in principle open to a prisoner to file a habeas petition at any
time on new issues, even if a court had ruled against him in a prior habeas petition
on other issues, so-called successor habeas petitions soon become a hallmark of
postconviction capital litigation.
However, troubled by the lack of finality in state criminal proceedings as well
as "abuse of the writ" by prisoners filing allegedly frivolous claims, both the
Supreme Court and Congress began to consider limits to the availability of such
relief. Experienced death penalty defense lawyers were acutely distressed; they
were quick to point out that between 1972 and 1980, some 60 percent of all state
death penalty convictions or sentences were invalidated by the federal courts in
response to habeas petitions;23 in the years 1976 through 1991, the reversal rate in
capital cases was between 40 and 60 percent of all cases involving such petitions.24
Many of these reversals were granted not on the first but on a successor habeas
petition. No wonder capital defense lawyers have viewed with alarm the mood of
Congress in the mid-1990s on this issue. Case in point: In Missouri, Lloyd Schlup
had served eleven years on death row for a murder he claimed he didn't commit.
On 2 May 1996 a federal district judge granted him relief, thanks to a persuasive
second petition for habeas corpus which will result in a hearing to assess his claims.
Under the new 1996 habeas "reform," however, Schlup's second petition probably
would have been denied.25
On 24 April 1996, President Clinton signed the Anti-Terrorism and Effective
Death Penalty Act, which incorporated severe restrictions on the availability of
federal habeas corpus to state prisoners—including death row prisoners. As New
York Times correspondent Stephen Labaton noted, by signing this bill the president
"impos[ed] the most rigorous constraints on the constitutional right to seek Federal
review of convictions since Lincoln suspended the writ of habeas corpus in the
Civil War" (1996:B9).26 The National Legal Aid and Defender Association's news-
letter, Capital Report, summarized the main features of the new law: "only claims
of actual innocence can yield an evidentiary hearing;" only "unreasonable" un-
constitutional state court rulings can be overturned; and filing deadlines have been
curtailed to [ . . . ] six months in death cases" (1996:1)—that is, any federal habeas
petition must be filed by the capital defendant within six months after his final
state court proceeding.
Although the new law requires states to provide competent post-conviction
counsel for the defense, it imposes no such requirement on the states regarding
trial counsel in capital cases. Yet it is at trial, not on appeal, that the gravest errors
typically occur, errors hitherto remediable—at least in principle, if not always in
practice—by federal habeas corpus. As for the new laws lightening the burden on
the federal courts and speeding up the appellate process, the National Center for
State Courts reported in 1992 that death row inmates filed only about 1 percent of
all habeas petitions and that these petitions constituted only 4 percent of the civil
caseload of the district courts.27 Substantial litigation over the application and in-
terpretation of the new law lies ahead.
Notes
1. In the discussion that follows, I have relied in part on an unpublished memorandum;
see Southern Center for Human Rights 1995.
2. See Bilionis 1991.
3. See Wickert 1983.
4. Regarding the difficulties in predicting future dangerousness, see Dix 1981; Mar-
quart, Ekland-Olson, and Sorensen 1989a; on the procedural aspects of the decision in
Barefoot, see Ita 1983; Levine 1984; Boaz 1985.
5. See Mayell 1984; Liebman 1985.
6. See Wellek 1984; Mello and Robson 1985; Mello 1991.
7. Contrast the pre-Strickland discussion of this issue in Goodpaster 1983 with the post-
Strickland discussion in White 1993.
8. For a book-length discussion of the Ford case and the issues it raised, see Miller
and Radelet 1993.
9. See V. Berger 1992 and Bedau 1994a.
10. See Streib 1988. It is useful to compare U.S. law on the execution of juveniles with
the practice of foreign nations (see Hood 1989:59-61) and with international law (see Scha-
bas 1993:123-26, 193-95, 255-59, 270-71, 278-79).
11. See Blume and Pratt 1990-91.
12. See Denno 1994b.
13. See Steiker 1993a; V. Berger 1994; Newton 1994.
14. The phrase first appears in the title of Tabak 1986.
15. For a sympathetic review of Chief Justice Rehnquist's capital punishment jurispru-
dence, see Bigel 1991.
16. For a cool review of Justice Scalia's death penalty jurisprudence, see Gey 1992.
17. Sharlitt 1989:131 n.
18. For general book-length discussions of the current death penalty system see Zimring
and Hawkins 1986; Amnesty International 1987; White 1991; Paternoster 1991; Streib ed.
1993; Coyne and Entzeroth 1994. In 1993 Amnesty International USA held a public hearing
in Boston in which the death penalty in America was subjected to international scrutiny;
see Harlow, Matas, and Rocamora 1995.
19. Jeffries 1994:451; von Drehle 1994.
20. Callins v. Collins,—U.S.—(1994), at p. 4 (slip opinion).
21. The literature on revision of federal habeas corpus in the 1990s is considerable; see
especially V. Berger 1990; Goldstein 1990 and 1990-91; Liebman 1990-91 and 1992; Tabak
and Lane 1991; and Bright 1993.
22. Fellman 1992:357.
23. Greenberg 1986:1671.
24. Liebman 1990-91:541 n. 15. See also his letter in the New York Times, 1 April
1996, p. A16. The high percentage of reversals he reports has been challenged (see the letter
by Barry Latzer, 27 March 1996, p. A20), claiming that the National Center for State Courts
reported only 15-17% reversals. The discrepacy arose because NCSC did not count habeas
petitions granted on appeal from denial in the federal district courts, whereas Liebman's
total did. See also Greenhouse 1992, reporting an ABA source to the effect that "[fjederal
judges overturned more than 40% of all death penalty cases they reviewed between July
1976 and May [1991]."
25. National Law Journal, 20 May 1996, p. 1. On the recent revisions in habeas corpus,
see New York Times, 8 April 1996, 25 April 1996, p. A18, 4 June 1966, p. D23, and the
editorial of 9 May 1966, p. A26.
26. For further discussion see Conference 1995 and Panel Discussion 1996.
27. National Law Journal, 1 April 1996, p. a!4., and 25 September 1995, p. A14.
19
International Human Rights Law and

the Death Penalty in America
H. A. BEDAU
In 1948 the Universal Declaration of Human Rights affirmed that "everyone has
the right to life" (Article 3) and that "no one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment" (Article 5). Exactly how
these provisions would affect the worldwide practice of the death penalty was
unclear at the time. The International Covenant on Civil and Political Rights was
adopted by the General Assembly in 1966, incorporating this language in Articles
6.1 and 7, respectively. With the coming into force of the Covenant in 1976, there
was little doubt that the developing thrust of interpretation of these provisions was
in the direction of outlawing the death penalty. However, the only explicit prohi-
bitions affecting the death penalty were in Article 6.5, outlawing the execution of
juveniles (persons under eighteen at the time of the crime) and pregnant women.
Not until 1992 did the United States ratify the Covenant. It did so only with
several reservations, including ones directed at the death penalty implications of
Articles 6 and 7. Obviously, the United States could not ratify the Covenant and
remain silent on these provisions, when the death penalty for juveniles (if not for
pregnant women) was then allowed in over two dozen states and the death penalty
in general enjoyed open support from the Bush administration. No other nation
ratifying the Covenant (except Ireland and Norway, for purely technical reasons)
filed any reservations concerning Article 6 and its assertion of an ' 'inherent right
to life" for all persons. It is the status of these provisions and the reservations by
the United States that are particularly troubling.
In 1993, eleven European nations, all of which had ratified the Covenant and
also abolished the death penalty under their domestic law, reported that they found
U.S. reservations concerning Articles 6 and 7 to be illegal, on the grounds that
they were essentially incompatible with the spirit of ratification of the Covenant.
(Such an objection by ratifying states to the reservations of another state's ratifi-
cation was, if not unique, certainly rare.) A year later, the Human Rights Committee
(a creature of the Covenant, consisting of eighteen persons appointed from among
those nominated by the ratifying nations) declared that it had the authority to de-
termine the validity of reservations.1
246
International Human Rights Law and the Death Penalty in America 247
Under the provisions of the Covenant, nations must supply periodic reports
evaluating their own compliance with the terms of the Covenant. The United States
did not file its first report until 1994, devoting only a few paragraphs to the current
practice and legal provisions affecting the death penalty. In March 1995 John Shat-
tuck, assistant secretary of state for human rights, officially presented the nation's
report to the Human Rights Committee. After reviewing the report and the pres-
entation, a majority of the committee declared the U.S. reservations to be illegal
(the U.S. representative on this committee, Professor Thomas Buergenthal, was
recused); this was followed by a consensus report of the committee affirming the
judgment of the majority.
Thus it appears as of the summer of 1995 that the United States, with its con-
stitutional toleration of the death penalty and its attempt to protect this punishment
from international scrutiny, has in fact been judged to be in violation of interna-
tional law. Just how this conflict will unfold and be resolved is unclear. But it is
clear that the United States faces a dilemma: Either the State Department, on behalf
of the government, refuses to respond to this judgment or it responds. If it chooses
not to respond, then the United States risks being judged after the passage of a
year or so to have acquiesced in the committee's verdict under the familiar principle
that silence argues consent. If it chooses to respond, however, it will have to decide
whether to challenge the authority of the Human Rights Committee to render a
verdict on the legitimacy of national reservations. On what grounds would an ar-
gument to this effect be based? Or should the government consider rescinding our
nation's ratification of the Covenant? That step seems unthinkable, given the world-
wide importance of the Covenant and the leadership of the United States in prop-
agating an international consciousness of the role of human rights in domestic law.2
A straw in the wind, indicating the kind of effect our nation's support for the
death penalty can have on the behavior of other nations toward us, occurred late
in June 1996, when the Italian government "blocked the extradition to the United
States of an Italian wanted in Florida on first degree murder charges because Florida
law includes capital punishment among the possible penalties" (Tagliabue 1996).
In addition to the provisions of articles 6 and 7 of the International Covenant
on Civil and Political Rights, discussed above, two other international legal instru-
ments deserve mention here. One is the Second Optional Protocol to the Interna-
tional Covenant Aiming at the Abolition of the Death Penalty, adopted by the U.N.
General Assembly on 15 December 1989. It declares (Article 1.1) that "No one
within the jurisdiction of a State party to the present Optional Protocol shall be
executed," and (Article 1.2) that "Each State party shall take all necessary mea-
sures to abolish the death penalty within its jurisdiction." This Protocol entered
into force on 11 July 1991, following ratification by the tenth nation (Schabas
1993:170).
The other is the Protocol to the American Convention on Human Rights to
Abolish the Death Penalty, adopted by the Organization of American States on 8
June 1990. As of 1994, four states had signed the Protocol and three ratified it
(Amnesty International 1995a:333).
The United States has neither signed nor ratified either of these Protocols.
Notes
1. For discussion, see U.N. Human Rights Committee, "General Comment No. 24 (52)
relating to reservations," Human Rights Law Journal 15 (1994):464-67.
2. This essay was developed through conversation with William A. Schabas; see also
Schabas 1994, 1995.
PART V
The Controversy over Race

and Class
If one reads through the five concurring opinions in Wurman v. Georgia, searching
for common threads holding together those otherwise independent opinions, one is
likely to seize on the twin themes of arbitrariness and discrimination.1 The argu-
ment from arbitrariness is that the death penalty as applied, beginning with the
prosecutor's decision whether to seek it in a particular case to the chief executive's
decision whether to grant clemency, fails to show any coherent, rational, principled
pattern. Instead, the results, as Justice Stewart observed in Furman, are random,
like "being struck by lightning."2 The argument from discrimination is that the
death penalty is not administered entirely randomly; on the contrary, its actual
administration takes into account legally and morally irrelevant factors—notably
race, class, and gender. Implicit in this pair of arguments is the fact that however
much the rest of the criminal justice system also exhibits arbitrariness and discrim-
ination, these two grave faults loom much larger when the defendant's life and not
only his liberty is at stake. Death, after all, is different from other punishments.
Race
Opposition to the death penalty in this country, at least since the 1950s, has been
based in part on the belief that this penalty is enforced in a racially discriminatory
manner. The basis for this belief need not be reviewed here,3 but it unquestionably
played an important role in motivating the LDF attorneys to launch their attack in
the mid-1960s on the constitutionality of capital punishment. The plight of their
clients—whether as victims of attempted lynching in earlier years or as latter-day
victims of yesterday's racist criminal procedures—brought them face-to-face with
the worst aspects of racism in the South.4 Worry about the impact of the death
penalty on African Americans certainly played a role in the Supreme Court's de-
cision in Furman, and perhaps in some subsequent cases as well (Woodson, Rob-
erts, and Coker each involved a black defendant and one or more white victims).
Most opponents of the death penalty believe that such racist effects occur through-
out the system, not only in the South, and that they cannot be eradicated in the
foreseeable future.
249
250 The Controversy over Race and Class
Today, few defenders of the death penalty are indifferent to the charge that as
administered the death penalty in America is fundamentally a racist institution. On
the contrary, some might concede that if the charge can be sustained, and if there
is no effective remedy short of abolishing the death penalty, then abolish it we
must.5 Others insist that racism in the administration of the death penalty is no
worse than the racism elsewhere in the criminal justice system—yet no one pro-
poses to abolish life imprisonment just because its administration, too, may be
racially unfair. Still others concede the charge and propose remedying it by exe-
cuting more whites (especially whites who kill blacks), not by abolition of the
death penalty—the argument of Ernest van den Haag, for instance (see his essay
in chapter 32). But most defenders of capital punishment probably contest the
charge. Whatever one's opinion, the argument for the racist effects of the death
penalty depends on empirical evidence analyzed statistically in ways that the un-
trained reader finds difficult to grasp—especially when apparently qualified experts
can be found on both sides of the issue.
In this part we first look at central portions of the Supreme Court's decision in
McCleskey v. Kemp (1987), the principal case in which statistically based evidence
of racial discrimination was introduced to challenge the death penalty. The argu-
ment advanced by McCleskey's attorneys was essentially a vastly more elaborate
version of the argument that inaugurated the constitutional attack on the death
penalty two decades earlier in Maxwell v. Bishop. The Court's decision in Mc-
Cleskey, too, was much the same as in Maxwell, except that McCleskey was decided
by a five-to-four vote. (Justice Harry Blackmun, who joined the Supreme Court
five years after his opinion for the appeals court in Maxwell, switched sides in
McCleskey and voted with the dissenters.) The majority opinion for the Court by
Justice Lewis F. Powell Jr. (excerpts of which are reprinted here as chapter 20)
argued that racial discrimination had not been adequately shown to be among the
explanatory factors governing prosecution, conviction, and sentencing in Georgia's
post-Fwrman capital cases. Furthermore, even if race of victim and defendant could
serve as significant predictors of sentencing outcomes in death penalty cases, there
was no constitutional violation of *'equal protection of the laws" because such
evidence does not show intentional discrimination by anybody against defendant
McCleskey or against any other given defendant.6
Much, of course, turns on exactly what the empirical evidence was. At least the
following can be said without fear of contradiction: It was the most elaborate
attempt ever made to show the disproportionately racial impact of any public pol-
icy. The research was directed by law professor David C. Baldus and two associ-
ates—statistician George G. Woodworm and attorney Charles A. Pulaski Jr.—and
is presented in exquisite detail in their treatise, Equal Justice and the Death Pen-
alty: A Legal and Empirical Analysis (1990). At the same time this book was
published, Congress's General Accounting Office (GAO) released its own review
of death sentencing research, evaluating more than two dozen empirical studies by
a wide variety of investigators, including the Baldus-Woodworth-Pulaski research.
The GAO's report is reprinted here as chapter 21; its conclusion? "Our synthesis
. . . shows a pattern of evidence indicating racial disparities in the charging, sen-
The Controversy over Race and Class 251
tencing, and imposition of the death penalty after the Furman decision.'' Of course,
a "disparity" is not necessarily a result of unfair discrimination, as all would agree.
It becomes discrimination to the extent that the disparity can be explained only by
racial factors having nothing to do with the gravity of the crime or other relevant
features that should govern prosecutorial and judicial decisions.7
The Court's opinion in McCleskey ended by declaring that "McCleskey's ar-
gument is best presented to the legislative bodies." That is, any wholesale revision
of the nation's death penalty system intended to remove the infection of racism (if
such there was) must be designed by the state and national legislatures, not by the
federal appellate courts. In response to that challenge, the Racial Justice Act was
proposed for congressional enactment. The act would empower the federal courts
to review capital cases for possible racial bias by prosecutors and juries and would
put the burden on the government to overcome a prima facie case of racial bias.
Between 1988 and 1994, different versions of the Racial Justice Act were formu-
lated. During the summer of 1994, as the Omnibus Crime Control Bill was in its
final stages, the Racial Justice Act (in the version then known as the Fairness in
Sentencing Act) was quietly dropped by the House-Senate conference committee
from the proposed legislation after having been adopted in the House; it is unlikely
soon to be revived.8
When hearings were first held on the Racial Justice Act in 1990, the Department
of Justice strongly argued against its adoption, as did the Washington Legal Foun-
dation (a conservative counterpart to the American Civil Liberties Union) and many
others. The kinds of reasons offered were essentially those repeated by the de-
partment and other critics in both the 1991 and 1994 debates in Congress.9 Perhaps
the most accessible version of that critique appeared in the summer of 1994 at the
height of political maneuvering over the proposed act. Provocatively entitled "Ex-
ecution by Quota?" and published in the neoconservative journal The Public In-
terest, it was written by Stanley Rothman and Stephen Powers of the Center for
the Study of Social and Political Change at Smith College.
A more popular version of some of the Rothman-Powers charges, "A Capitol
Offense," appeared in May 1994 in the nationally syndicated column of George
F. Will. Baldus and his two associates wrote a succinct reply to Will's column and
implicitly replied to the Rothman-Powers critique as well (a fuller rebuttal appears
in their law review article on the subject published later in 1994). Given the Re-
publican control of Congress since November 1994, we are not likely to hear more
of the Racial Justice Act in the near future.
Class
Justice William O. Douglas in his concurring opinion in Furman remarked, "One

searches our chronicles in vain for the execution of any member of the affluent
strata of this society. The Leopolds and Loebs10 are given prison terms, not sen-
tenced to death." Today, the plight of an impoverished defendant in a murder trial
is serious, indeed. Court-appointed attorneys, often inexperienced, underpaid, and
overworked—especially in the southern states, where most death sentences and

executions take place—hardly offer the prospect of a truly fair trial and a vigorous,
resourceful defense. Complaints regularly are heard on all sides about the deficient
quality of counsel representing defendants on trial for their lives.11 If one had to
single out a recent discussion of this problem as seen through the eyes of a highly
experienced observer, one could not do better than to read the essay by Stephen
B. Bright, director, Southern Center for Human Rights, in Atlanta, Georgia, re-
printed here as chapter 22. Bright is one of the two dozen or so attorneys around
the nation who directs litigation on behalf of state death row clients; no one has a
better view of the day-to-day events surrounding capital trials and appeals than do
these lawyers. What Bright and his colleagues engaged in death penalty litigation
have to report is not very reassuring.
It may be helpful to note how others view the issues of arbitrariness and dis-
crimination in our administration of the death penalty. In July 1996 the Geneva-
based International Commission of Jurists released a 260 page report on the subject
authored by four judges and lawyers from India, Sweden, Nigeria, and Australia.
Their conclusion? The death penalty as administered today is "arbitrary, and ra-
cially discriminatory, and prospects of a fair hearing for capital offenders cannot
. . . be assured" (Evans 1996; cf. also the conclusions of the Commission of Inquiry
into the Death Penalty as Practiced in the United States, held in Boston in August
1993 and convened by Amnesty International, in Harlow, Matas, and Rocamora
1995).
Notes
1. See Nakell and Hardy 1987:16.
2. See Bentele 1985, V. Berger 1988, and especially Berk, Weiss, and Boger 1993a
for a mathematically sophisticated discussion of the problem; see also the subsequent dis-
cussion between Paternoster 1993 and Berk, Weiss, and Boger 1993b.
3. The classic source is, of course, Myrdal 1944. The most recent discussion is in Tonry
1995. For a more general attack on the claim of racism in the criminal justice system, see
Wilbanks 1986.
4. See Meltsner 1973, Kluger 1976, Brundage 1993, and Marquart, Ekland-Olson, and
Sorensen 1994. From among many individual case studies, see especially McGovern 1982,
Smead 1986, Cortner 1988, and Rise 1995.
5. Walter Berns, one of the most thoughtful defenders of the death penalty, verges on
this position; see Berns 1979:186-87.
6. Among the many critical discussions of this case, see Berger et al. 1989, Kennedy
1988, and Amsterdam 1988. Willbanks 1988, criticizing the Baldus research, supported the
Court's reasoning in McCleskey. For a discussion of the Rehnquist Court's struggle in reach-
ing the 5 to 4 decision in McCleskey, see Simon 1995:172-211.
7. Subsequent to the GAO report and the Baldus research, there is a considerable lit-
erature on racial aspects of the death penalty. See, for example, Amnesty International
1996b, Bright 1995a, Eckholm 1995; Russell 1993; Radelet and Pierce 1991; Winn 1991a,
1991b, 1991c; Death Penalty Information Center 1991, Johnson 1988. One of the rare studies
finding no evidence of racial discrimination is Klein and Rolph 1991; they argue that at
least in California, race plays no role in capital sentencing.
The Controversy over Race and Class 253
8. The Fairness in Sentencing Act (1994) provided in part that "An inference that race
was the basis of a death sentence is established if valid evidence is presented demonstrating
that, at the time the death sentence was imposed, race was a statistically significant factor
in decisions to seek or to impose the sentence of death in the jurisidiction in question....
Evidence relevant to establish [such an] inference . . . may include evidence that death sen-
tences were, at the time . . . , being imposed significantly more frequently in the jurisdiction
in question—(1) upon persons of one race than upon persons of another race; or (2) as
punishment for capital offenses against persons of one race than as punishment for capital
offenses against persons of another race.... If statistical evidence is presented to establish
an inference that race was the basis of a sentence of death, the court shall determine the
validity of the evidence.... If an inference that race was the basis of a death sentence is
established . . . , the death sentence may not be carried out unless the government rebuts the
inference by a preponderance of the evidence.... [T]he government cannot rely on mere
assertions that it did not intend to discriminate or that the cases in which death was imposed
fit the statutory criteria for imposition of the death penalty." The text of the proposed Act
is reprinted in full in Baldus, Woodworth, and Pulaski 1994b:424-25.
For further discussion of this proposed legislation, see Lungren and Krotoski 1995, Ed-
wards and Conyers 1995, Tabak 1990-91, and especially Baldus, Woodworth, and Pulaski
1994b.
9. See House Hearings 1990a, 1991a, Baldus, Woodworth, and Pulaski 1994b:426-27.
10. Editor's note: In 1924, Nathan Leopold and Richard Loeb were high school students
from wealthy Chicago families; they were charged with the "thrill killing" of 14 year-old
Bobby Frank. The famous civil liberties attorney, Clarence Darrow, served as their defense
counsel and persuaded them to plead guilty. The sole issue before the trial court was their
sentence; in his most famous (and longest) oration to a trial court, Darrow managed to get
his clients sentenced to life plus 99 years in prison, thus saving them from the electric chair.
See Darrow 1991. Loeb was later killed by a fellow prisoner; Leopold went on to a suc-
cessful career as a medical technician, first in prison and then, after serving three decades
of his sentence, in Haiti.
11. See Robbins 1990 and Spangenberg Group 1994.
20
McCleskey v. Kemp, 1987: A Racially

Disproportionate Death Penalty System
Is Not Unconstitutional
Justice Powell delivered the opinion of the Court.

This case presents the question whether a complex statistical study that indicates
a risk that racial considerations enter into capital sentencing determinations proves
that petitioner McCleskey's capital sentence is unconstitutional under the Eighth
or Fourteenth Amendment....
McCleskey . . . filed a petition for a writ of habeas corpus in the Federal District
Court for the Northern District of Georgia. His petition raised 18 claims, one of
which was that the Georgia capital sentencing process is administered in a racially
discriminatory manner in violation of the Eighth and Fourteenth Amendments to
the United States Constitution. In support of his claim, McCleskey proffered a
statistical study performed by Professors David C. Baldus, Charles Pulanski, and
George Woodworm (the Baldus study) that purports to show a disparity in the
imposition of the death sentence in Georgia based on the race of the murder victim
and, to a lesser extent, the race of the defendant. The Baldus study is actually two
sophisticated statistical studies that examine over 2,000 murder cases that occurred
in Georgia during the 1970's. The raw numbers collected by Professor Baldus
indicate that defendants charged with killing white persons received the death pen-
alty in 11% of the cases, but defendants charged with killing blacks received the
death penalty in only 1% of the cases. The raw numbers also indicate a reverse
racial disparity according to the race of the defendant: 4% of the black defendants
received the death penalty, as opposed to 7% of the white defendants....
Baldus subjected his data to an extensive analysis, taking account of 230 vari-
ables that could have explained the disparities on nonracial grounds. One of his
models concludes that, even after taking account of 39 nonracial variables, defen-
dants charged with killing white victims were 4.3 times as likely to receive a death
Reprinted from the plurality opinion for the Court in McCleskey v. Kemp, 481 U.S. 279 (1987), by
Justice Lewis F. Powell Jr. Substantial portions of the opinion (including all of sections I and IV) have
been omitted, and the remaining footnotes renumbered. Justice Powell was joined by Chief Justice
Rehnquist and Justices White, O'Connor, and Scalia. Filing dissenting opinions were Justices William
Brennan Jr. (joined by Thurgood Marshall), Harry A. Blackmun, and John Paul Stevens; none of their
opinions is reprinted here.
254
A Racially Disproportionate Death Penalty System Is Not Unconstitutional 255
sentence as defendants charged with killing blacks. According to this model, black
defendants were 1.1 times as likely to receive a death sentence as other defendants.
Thus, the Baldus study indicates that black defendants, such as McCleskey, who
kill white victims have the greatest likelihood of receiving the death penalty.1
The District Court held an extensive evidentiary hearing on McCleskey's peti-
tion. Although it believed that McCleskey's Eighth Amendment claim was fore-
closed by the Fifth Circuit's decision in Spinkellink v Wainwright, 578 F2d 582,
612, 616 (1978), cert denied, 440 US 976 (1979), it nevertheless considered the
Baldus study with care. It concluded that McCleskey's "statistics do not demon-
strate a prima facie case in support of the contention that the death penalty was
imposed upon him because of his race, because of the race of the victim, or because
of any Eighth Amendment concern." McCleskey v Zant, 580 F Supp 338, 379
(ND Ga 1984). As to McCleskey's Fourteenth Amendment claim, the court found
that the methodology of the Baldus study was flawed in several respects.2 Because
of these defects, the court held that the Baldus study "fail[ed] to contribute any-
thing of value" to McCleskey's claim. Id., at 372 (emphasis omitted). Accordingly,
the court denied the petition insofar as it was based upon the Baldus study.
The Court of Appeals for the Eleventh Circuit, sitting en bane, carefully re-
viewed the District Court's decision on McCleskey's claim. 753 F2d 877 (1985).
It assumed the validity of the study itself and addressed the merits of McCleskey's
Eighth and Fourteenth Amendment claims. That is, the court assumed that the study
"showed that systematic and substantial disparities existed in the penalties imposed
upon homicide defendants in Georgia based on race of the homicide victim, that
the disparities existed at a less substantial rate in death sentencing based on race
of defendants, and that the factors of race of the victim and defendant were at
work in Fulton County." Id., at 895. Even assuming the study's validity, the Court
of Appeals found the statistics "insufficient to demonstrate discriminatory intent
or unconstitutional discrimination in the Fourteenth Amendment context, [and] in-
sufficient to show irrationality, arbitrariness and capriciousness under any kind of
Eighth Amendment analysis." Id., at 891. The court noted:
The very exercise of discretion means that persons exercising discretion may reach
different results from exact duplicates. Assuming each result is within the range of
discretion, all are correct in the eyes of the law. It would not make sense for the
system to require the exercise of discretion in order to be facially constitutional, and
at the same time hold a system unconstitutional in application where that discretion
achieved different results for what appear to be exact duplicates, absent the state
showing the reasons for the difference....
The Baldus approach... would take the cases with different results on what are
contended to be duplicate facts, where the differences could not be otherwise ex-
plained, and conclude that the different result was based on race alone.... This ap-
proach ignores the realities.... There are, in fact, no exact duplicates in capital crimes
and capital defendants. The type of research submitted here tends to show which of
the directed factors were effective, but is of restricted use in showing what undirected
factors control the exercise of constitutionally required discretion. Id., at 898-99.
The court concluded:

Viewed broadly, it would seem that the statistical evidence presented here, assuming
its validity, confirms rather than condemns the system.... The marginal disparity
based on the race of the victim tends to support the state's contention that the system
is working far differently from the one which Furman condemned. In pre-Furman
days, there was no rhyme or reason as to who got the death penalty and who did not.
But now, in the vast majority of cases, the reasons for a difference are well docu-
mented. That they are not so clear in a small percentage of the cases is no reason to
declare the entire system unconstitutional. Id., at 899.
The Court of Appeals affirmed the denial by the District Court of McCleskey's
petition for a writ of habeas corpus insofar as the petition was based upon the
Baldus study, with three judges dissenting as to McCleskey's claims based on the
Baldus study. We granted certiorari,... and now affirm.
II
McCleskey's first claim is that the Georgia capital punishment statute violates the
Equal Protection Clause of the Fourteenth Amendment.3 He argues that race has
infected the administration of Georgia's statute in two ways: persons who murder
whites are more likely to be sentenced to death than persons who murder blacks,
and black murderers are more likely to be sentenced to death than white murderers.
As a black defendant who killed a white victim, McCleskey claims that the Baldus
study demonstrates that he was discriminated against because of his race and be-
cause of the race of his victim. In its broadest form, McCleskey's claim of dis-
crimination extends to every actor in the Georgia capital sentencing process, from
the prosecutor who sought the death penalty and the jury that imposed the sentence,
to the State itself that enacted the capital punishment statute and allows it to remain
in effect despite its allegedly discriminatory application. We agree with the Court
of Appeals, and every other court that has considered such a challenge, that this
claim must fail.
A
Our analysis begins with the basic principle that a defendant who alleges an equal
protection violation has the burden of proving "the existence of purposeful dis-
crimination." Whitus v Georgia, 385 US 545 (1967). A corollary to this principle
is that a criminal defendant must prove that the purposeful discrimination "had a
discriminatory effect" on him. Wayte v United States, 470 US 598, 608 (1985).
Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the
decisionmakers in his case acted with discriminatory purpose. He offers no evi-
dence specific to his own case that would support an inference that racial consid-
erations played a part in his sentence. Instead, he relies solely on the Baldus study.
McCleskey argues that the Baldus study compels an inference that his sentence
rests on purposeful discrimination. McCleskey's claim that these statistics are suf-
ficient proof of discrimination, without regard to the facts of a particular case,
would extend to all capital cases in Georgia, at least where the victim was white
and the defendant is black.
The Court has accepted statistics as proof of intent to discriminate in certain
limited contexts. First, this Court has accepted statistical disparities as proof of an
equal protection violation in the selection of the jury venire in a particular district.
Although statistical proof normally must present a "stark" pattern to be accepted
as the sole proof of discriminatory intent under the Constitution,4 "[b]ecause of
the nature of the jury-selection task,... we have permitted a finding of constitu-
tional violation even when the statistical pattern does not approach [such] ex-
tremes." Id., at 266, n 13. Second, this Court has accepted statistics in the form
of multiple-regression analysis to prove statutory violations under Title Vn of the
Civil Rights Act of 1964. Bazemore v Friday, 478 US 385 (1986) (opinion of
Brennan, J., concurring in part).
But the nature of the capital sentencing decision, and the relationship of the
statistics to that decision, are fundamentally different from the corresponding ele-
ments in the venire-selection or Title VII cases. Most importantly, each particular
decision to impose the death penalty is made by a petit jury selected from a properly
constituted venire. Each jury is unique in its composition, and the Constitution
requires that its decision rest on consideration of innumerable factors that vary
according to the characteristics of the individual defendant and the facts of the
particular capital offense. Thus, the application of an inference drawn from the
general statistics to a specific decision in a trial and sentencing simply is not com-
parable to the application of an inference drawn from general statistics to a specific
venire-selection or Title VII case. In those cases, the statistics relate to fewer en-
tities, and fewer variables are relevant to the challenged decisions.5
Another important difference between the cases in which we have accepted
statistics as proof of discriminatory intent and this case is that, in the venire-
selection and Title VII contexts, the decisionmaker has an opportunity to explain
the statistical disparity.... Here, the State has no practical opportunity to rebut the
Baldus study. "[Controlling considerations o f . . . public policy," . . . dictate that
jurors "cannot be called . . . to testify to the motives and influences that led to their
verdict." . . . Similarly, the policy considerations behind a prosecutor's traditionally
' * wide discretion'' suggest the impropriety of our requiring prosecutors to defend
their decisions to seek death penalties, "often years after they were made." See
Imbler v Pachtman, 424 US 409, 425-426 (1976).6 Moreover, absent far stronger
proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchal-
lenged explanation for the decision is apparent from the record: McCleskey com-
mitted an act for which the United States Constitution and Georgia laws permit
imposition of the death penalty.
Finally, McCleskey's statistical proffer must be viewed in the context of his
challenge. McCleskey challenges decisions at the heart of the State's criminal jus-
tice system. "[O]ne of society's most basic tasks is that of protecting the lives of
its citizens and one of the most basic ways in which it achieves the task is through
criminal laws against murder." Gregg v Georgia, 428 US 153 (1976) (White, J.,
concurring). Implementation of these laws necessarily requires discretionary judg-
ments. Because discretion is essential to the criminal justice process, we would

demand exceptionally clear proof before we would infer that the discretion has
been abused. The unique nature of the decisions at issue in this case also counsels
against adopting such an inference from the disparities indicated by the Baldus
study. Accordingly, we hold that the Baldus study is clearly insufficient to support
an inference that any of the decisionmakers in McCleskey's case acted with dis-
criminatory purpose.
B
McCleskey also suggests that the Baldus study proves that the State as a whole
has acted with a discriminatory purpose. He appears to argue that the State has
violated the Equal Protection Clause by adopting the capital punishment statute
and allowing it to remain in force despite its allegedly discriminatory application.
But " '[discriminatory purpose' . . . implies more than intent as volition or intent
as awareness of consequences. It implies that the decisionmaker, in this case a state
legislature, selected or reaffirmed a particular course of action at least in part 'be-
cause of,' not merely 'in spite of,' its adverse effects upon an identifiable group."
Personnel Administrator of Massachusetts v Feeney, 442 US 256 (1979).... For
this claim to prevail, McCleskey would have to prove that the Georgia Legislature
enacted or maintained the death penalty statute because of an anticipated racially
discriminatory effect. In Gregg v Georgia, supra, this Court found that the Georgia
capital sentencing system could operate in a fair and neutral manner. There was
no evidence then, and there is none now, that the Georgia Legislature enacted the
capital punishment statute to further a racially discriminatory purpose.7
Nor has McCleskey demonstrated that the legislature maintains the capital pun-
ishment statute because of the racially disproportionate impact suggested by the
Baldus study. As legislatures necessarily have wide discretion in the choice of
criminal laws and penalties, and as there were legitimate reasons for the Georgia
Legislature to adopt and maintain capital punishment, see Gregg v Georgia....
(joint opinion of Stewart, Powell, and Stevens, JJ.), we will not infer a discrimi-
natory purpose on the part of the State of Georgia.8 Accordingly, we reject Mc-
Cleskey's equal protection claims.
in
McCleskey also argues that the Baldus study demonstrates that the Georgia capital
sentencing system violates the Eighth Amendment....
B
Although our decision in Gregg as to the facial validity of the Georgia capital
punishment statute appears to foreclose McCleskey's disproportionality argument,
he further contends that the Georgia capital punishment system is arbitrary and
capricious in application, and therefore his sentence is excessive, because racial

considerations may influence capital sentencing decisions in Georgia. We now ad-
dress this claim.
To evaluate McCleskey's challenge, we must examine exactly what the Baldus
study may show. Even Professor Baldus does not contend that his statistics prove
that race enters into any capital sentencing decisions or that race was a factor in
McCleskey's particular case.9 Statistics at most may show only a likelihood that a
particular factor entered into some decisions. There is, of course, some risk of
racial prejudice influencing a jury's decision in a criminal case. There are similar
risks that other kinds of prejudice will influence other criminal trials.... The ques-
tion "is at what point that risk becomes constitutionally unacceptable," Turner v
Murray, 476 US 28 (1986). McCleskey asks us to accept the likelihood allegedly
shown by the Baldus study as the constitutional measure of an unacceptable risk
of racial prejudice influencing capital sentencing decisions. This we decline to do.
Because of the risk that the factor of race may enter the criminal justice process,
we have engaged in "unceasing efforts" to eradicate racial prejudice from our
criminal justice system. Batson v Kentucky, 476 US (1986).10 Our efforts have
been guided by our recognition that "the inestimable privilege of trial by jury . . .
is a vital principle, underlying the whole administration of criminal justice," Ex
parte Milligan, 4 Wall 2, 123 (1866). See Duncan v Louisiana, 391 US 145 (1968).
Thus, it is the jury that is a criminal defendant's fundamental "protection of life
and liberty against race or color prejudice." Strauder v West Virginia, 100 US 303
(1880). Specifically, a capital sentencing jury representative of a criminal defen-
dant's community assures a " 'diffused impartiality,' " Taylor v Louisiana, 419
US 522.... n
Individual jurors bring to their deliberations "qualities of human nature and
varieties of human experience, the range of which is unknown and perhaps un-
knowable." Peters v Kiff, 407 US 493 (1972) (opinion of Marshall, J.). The capital
sentencing decision requires the individual jurors to focus their collective judgment
on the unique characteristics of a particular criminal defendant. It is not surprising
that such collective judgments often are difficult to explain. But the inherent lack
of predictability of jury decisions does not justify their condemnation. On the con-
trary, it is the jury's function to make the difficult and uniquely human judgments
that defy codification and that "buil[d] discretion, equity, and flexibility into a
legal system." H. Kalven & H. Zeisel, The American Jury 498 (1966).
McCleskey's argument that the Constitution condemns the discretion allowed
decisionmakers in the Georgia capital sentencing system is antithetical to the fun-
damental role of discretion in our criminal justice system. Discretion in the criminal
justice system offers substantial benefits to the criminal defendant. Not only can a
jury decline to impose the death sentence, it can decline to convict or choose to
convict of a lesser offense. Whereas decisions against a defendant's interest may
be reversed by the trial judge or on appeal, these discretionary exercises of leniency
are final and unreviewable. Similarly, the capacity of prosecutorial discretion to
provide individualized justice is "firmly entrenched in American law." 2 W.
LaFave & D. Israel, Criminal Procedure § 13.2(a), p 160 (1984). As we have noted,
a prosecutor can decline to charge, offer a plea bargain,12 or decline to seek a death
sentence in any particular case.... Of course, "the power to be lenient [also] is
the power to discriminate," K. Davis, Discretionary Justice 170 (1973), but a cap-
ital punishment system that did not allow for discretionary acts of leniency "would
be totally alien to our notions of criminal justice." Gregg v Georgia, 428 US, at
200, n 50....
c
At most, the Baldus study indicates a discrepancy that appears to correlate with
race. Apparent disparities in sentencing are an inevitable part of our criminal justice
system.13 The discrepancy indicated by the Baldus study is "a far cry from the
major systemic defects identified in Furman," Pulley v Harris, 465 US, at 54.14 As
this Court has recognized, any mode for determining guilt or punishment "has its
weaknesses and the potential for misuse." Singer v United States, 380 US 24
(1965).... Specifically, "there can be 'no perfect procedure for deciding in which
cases governmental authority should be used to impose death/ " Zant v Stephens,
462 US 862 (1983) (quoting Lockett v Ohio, 438 US, at 605, (plurality opinion of
Burger, C. J.)). Despite these imperfections, our consistent rule has been that con-
stitutional guarantees are met when "the mode [for determining guilt or punish-
ment] itself has been surrounded with safeguards to make it as fair as possible."
Singer v United States, supra, at 35....
Where the discretion that is fundamental to our criminal process is involved, we
decline to assume that what is unexplained is invidious. In light of the safeguards
designed to minimize racial bias in the process, the fundamental value of jury trial
in our criminal justice system, and the benefits that discretion provides to criminal
defendants, we hold that the Baldus study does not demonstrate a constitutionally
significant risk of racial bias affecting the Georgia capital sentencing process.15
V
Two additional concerns inform our decision in this case. First, McCleskey's claim,
taken to its logical conclusion, throws into serious question the principles that
underlie our entire criminal justice system. The Eighth Amendment is not limited
in application to capital punishment, but applies to all penalties. Solem v Helm,
463 US 277 (1983) Thus, if we accepted McCleskey's claim that racial bias
has impermissibly tainted the capital sentencing decision, we could soon be faced
with similar claims as to other types of penalty.16 Moreover, the claim that his
sentence rests on the irrelevant factor of race easily could be extended to apply to
claims based on unexplained discrepancies that correlate to membership in other
minority groups,17 and even to gender.18 Similarly, since McCleskey's claim relates
to the race of his victim, other claims could apply with equally logical force to
statistical disparities that correlate with the race or sex of other actors in the crim-
inal justice system, such as defense attorneys or judges. Also, there is no logical
reason that such a claim need be limited to racial or sexual bias. If arbitrary and
capricious punishment is the touchstone under the Eighth Amendment, such a claim
could—at least in theory—be based upon any arbitrary variable, such as the de-
fendant's facial characteristics,19 or the physical attractiveness of the defendant or
the victim,20 that some statistical study indicates may be influential in jury deci-
sionmaking. As these examples illustrate, there is no limiting principle to the type
of challenge brought by McCleskey.21 The Constitution does not require that a
State eliminate any demonstrable disparity that correlates with a potentially irrel-
evant factor in order to operate a criminal justice system that includes capital pun-
ishment. As we have stated specifically in the context of capital punishment, the
Constitution does not "plac[e] totally unrealistic conditions on its use." Gregg v
Georgia, 428 US, at 199
Second, McCleskey's arguments are best presented to the legislative bodies. It
is not the responsibility—or indeed even the right—of this Court to determine the
appropriate punishment for particular crimes. It is the legislatures, the elected rep-
resentatives of the people, that are "constituted to respond to the will and conse-
quently the moral values of the people." Furman v Georgia, 408 US, at 383
(Burger, C.J., dissenting). Legislatures also are better qualified to weigh and "eval-
uate the results of statistical studies in terms of thek own local conditions and with
a flexibility of approach that is not available to the courts," Gregg v Georgia,
supra, at 186.... Capital punishment is now the law in more than two-thirds of
our States. It is the ultimate duty of courts to determine on a case-by-case basis
whether these laws are applied consistently with the Constitution. Despite Mc-
Cleskey's wide-ranging arguments that basically challenge the validity of capital
punishment in our multiracial society, the only question before us is whether in
his case,... the law of Georgia was properly applied. We agree with the District
Court and the Court of Appeals for the Eleventh Circuit that this was carefully and
correctly done in this case.
VI
Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh
Circuit.
It is so ordered.
Notes
1. Baldus' 230-variable model divided cases into eight different ranges, according to
the estimated aggravation level of the offense. Baldus argued in his testimony to the District
Court that the effects of racial bias were most striking in the midrange cases. "[WJhen the
cases become tremendously aggravated so that everybody would agree that if we're going
to have a death sentence, these are the cases that should get it, the race effects go away.
It's only in the mid-range of cases where the decision-makers have a real choice as to what
to do. If there's room for the exercise of discretion, then the [racial] factors begin to play
a role." App 36. Under this model, Baldus found that 14.4% of the black-victim midrange
cases received the death penalty, and 34.4% of the white-victim cases received the death
penalty. See Exhibit DB 90, reprinted in Supplemental Exhibits 54. According to Baldus,
the facts of McCleskey's case placed it within the midrange. App 45-46.
2. Baldus, among other experts, testified at the evidentiary hearing. The District Court
"was impressed with the learning of all of the experts." 580 F Supp, at 353 (emphasis
omitted). Nevertheless, the District Court noted that in many respects the data were incom-
plete. In its view, the questionnaires used to obtain the data failed to capture the full degree
of the aggravating or mitigating circumstances. Id., at 356. The court criticized the resear-
cher's decisions regarding unknown variables. Id., at 357-58. The researchers could not
discover whether penalty trials were held in many of the cases, thus undercutting the value
of the study's statistics as to prosecutorial decisions. Id., at 359. In certain cases, the study
lacked information on the race of the victim in cases involving multiple victims, on whether
or not the prosecutor offered a plea bargain, and on credibility problems with witnesses. Id.,
at 360. The court concluded that McCleskey had failed to establish by a preponderance of
the evidence that the data were trustworthy. "It is a major premise of a statistical case that
the data base numerically mirrors reality. If it does not in substantial degree mirror reality,
any inferences empirically arrived at are untrustworthy." Ibid.
The District Court noted other problems with Baldus' methodology First, the researchers
assumed that all of the information available from the questionnaires was available to the
juries and prosecutors when the case was tried. The court found this assumption "question-
able." Id., at 361. Second, the court noted the instability of the various models. Even with
the 230-variable model, consideration of 20 further variables caused a significant drop in
the statistical significance of race. In the court's view, this undermined the persuasiveness
of the model that showed the greatest racial disparity, the 39-variable model. Id., at 362.
Third, the court found that the high correlation between race and many of the nonracial
variables diminished the weight to which the study was entitled. Id., at 363-64.
Finally, the District Court noted the inability of any of the models to predict the outcome
of actual cases. As the court explained, statisticians use a measure called an "r2" to measure
what portion of the variance in the dependent variable (death sentencing rate, in this case)
is accounted for by the independent variables of the model. A perfectly predictive model
would have an r2 value of 1.0. A model with no predictive power would have an r2 value
of 0. The r2 value of Baldus' most complex model, the 230-variable model, was between
.46 and .48. Thus, as the court explained, "the 230-variable model does not predict the
outcome in half of the cases." Id., at 361.
3. Although the District Court rejected the findings of the Baldus study as flawed, the
Court of Appeals assumed that the study is valid and reached the constitutional issues.
Accordingly, those issues are before us. As did the Court of Appeals, we assume the study
is valid statistically without reviewing the factual findings of the District Court. Our as-
sumption that the Baldus study is statistically valid does not include the assumption that the
study shows that racial considerations actually enter into any sentencing decisions in Geor-
gia. Even a sophisticated multiple regression analysis such as the Baldus study can only
demonstrate a risk that the factor of race entered into some capital sentencing decisions and
a necessarily lesser risk that race entered into any particular sentencing decision.
4. Gomillion v Lightfoot, 364 US 339 (1960), and Yick Wo v Hopkins, 118 US 356
(1886), are examples of those rare cases in which a statistical pattern of discriminatory
impact demonstrated a constitutional violation. In Gomillion, a state legislature violated the
Fifteenth Amendment by altering the boundaries of a particular city "from a square to an
uncouth twenty-eight-sided figure." 364 US, at 340. The alterations excluded 395 of 400
black voters without excluding a single white voter. In Yick Wo, an ordinance prohibited
operation of 310 laundries that were housed in wooden buildings, but allowed such laundries
to resume operations if the operator secured a permit from the government. When laundry
operators applied for permits to resume operation, all but one of the white applicants received
permits, but none of the over 200 Chinese applicants were successful. In those cases, the
Court found the statistical disparities "to warrant and require," Yick Wo v Hopkins, supra,
at 373, a "conclusion [that was] irresistible, tantamount for all practical purposes to a
mathematical demonstration," Gomillion v Lightfoot, supra, at 341, that the State acted with
a discriminatory purpose.
5. We refer here not to the number of entities involved in any particular decision, but
to the number of entities whose decisions necessarily are reflected in a statistical display
such as the Baldus study. The decisions of a jury commission or of an employer over time
are fairly attributable to the commission or the employer. Therefore, an unexplained statis-
tical discrepancy can be said to indicate a consistent policy of the decisionmaker. The Baldus
study seeks to deduce a state "policy" by studying the combined effects of the decisions
of hundreds of juries that are unique in their composition. It is incomparably more difficult
to deduce a consistent policy by studying the decisions of these many unique entities. It is
also questionable whether any consistent policy can be derived by studying the decisions of
prosecutors. The District Attorney is elected by the voters in a particular county. See Ga
Const, Art 6, § 8, H 1. Since decisions whether to prosecute and what to charge necessarily
are individualized and involve infinite factual variations, coordination among district attorney
offices across a State would be relatively meaningless. Thus, any inference from statewide
statistics to a prosecutorial "policy" is of doubtful relevance. Moreover, the statistics in
Fulton County alone represent the disposition of far fewer cases than the statewide statistics.
Even assuming the statistical validity of the Baldus study as a whole, the weight to be given
the results gleaned from this small sample is limited.
6. Although Imbler was decided in the context of damages under 42 USC § 1983 [42
USCS § 1983] actions brought against prosecutors, the considerations that led the Court to
hold that a prosecutor should not be required to explain his decisions apply in this case as
well: "[I]f the prosecutor could be made to answer in court each time ... a person charged
him with wrongdoing, his energy and attention would be diverted from the pressing duty
of enforcing the criminal law." 424 US, at 425. Our refusal to require that the prosecutor
provide an explanation for his decisions in this case is completely consistent with this
Court's longstanding precedents that hold that a prosecutor need not explain his decisions
unless the criminal defendant presents a prima facie case of unconstitutional conduct with
respect to his case. See, e.g., Batson v Kentucky, supra; Wayte v United States, supra.
7. McCleskey relies on "historical evidence" to support his claim of purposeful dis-
crimination by the State. This evidence focuses on Georgia laws in force during and just
after the Civil War. Of course, the "historical background of the decision is one evidentiary
source" for proof of intentional discrimination. Arlington Heights v Metropolitan Housing
Dev. Corp., 429 US, at 267. But unless historical evidence is reasonably contemporaneous
with the challenged decision, it has little probative value. Cf. Hunter v Underwood, 471 US
222 (1985) (relying on legislative history to demonstrate discriminatory motivation behind
state statute). Although the history of racial discrimination in this country is undeniable, we
cannot accept official actions taken long ago as evidence of current intent.
8. Justice Blackmun suggests that our "reliance on legitimate interests underlying the
Georgia Legislature's enactment of its capital punishment statute i s . . . inappropriate [be-
cause] it has no relevance in a case dealing with a challenge to the Georgia capital sentencing
system as applied in McCleskey's case." Post, at 349 (emphasis in original). As the dissent
suggests, this evidence is not particularly probative when assessing the application of Geor-
gia's capital punishment system through the actions of prosecutors and juries, as we did in
Part II-A, supra. But that is not the challenge that we are addressing here. As indicated
above, the question we are addressing is whether the legislature maintains its capital pun-
ishment statute because of the racially disproportionate impact suggested by the Baldus
study. McCleskey has introduced no evidence to support this claim....
9. According to Professor Baldus: "McCleskey's case falls in [a] grey area where . . .
you would find the greatest likelihood that some inappropriate consideration may have come
to bear on the decision.
* 'In an analysis of this type, obviously one cannot say that we can say to a moral certainty
what it was that influenced the decision. We can't do that." App 45-46.
10. This Court has repeatedly stated that prosecutorial discretion cannot be exercised on
the basis of race. Wayte v United States, 470 US, at 608; United States v Batchelder, 442
US 114 (1979); Oyler v Boles, 368 US 448 (1962)....
11. In Witherspoon, Justice Brennan joined the opinion of the Court written by Justice
Stewart. The Court invalidated a statute that permitted a prosecutor to eliminate prospective
jurors by challenging all who expressed qualms about the death penalty. The Court expressly
recognized that the purpose of the "broad discretion" given to a sentencing jury is "to
decide whether or not death is 'the proper penalty' in a given case," noting that "a juror's
general views about capital punishment play an inevitable role in any such decision." 391
US, at 519 (emphasis omitted). Thus, a sentencing jury must be composed of persons capable
of expressing the "conscience of the community on the ultimate question of life or death."
Ibid. The Court referred specifically to the plurality opinion of Chief Justice Warren in Trop
v Dulles, 356 US 86 (1958), to the effect that it is the jury that must "maintain a link
between contemporary community values and the penal system ..." 391 US, at 519, n 15.
Justice Brennan's condemnation of the results of the Georgia capital punishment system
must be viewed against this background. As to community values and the constitutionality
of capital punishment in general, we have previously noted, supra,... that the elected rep-
resentatives of the people in 37 States and the Congress have enacted capital punishment
statutes, most of which have been enacted or amended to conform generally to the Gregg
standards, and that 33 States have imposed death sentences thereunder. In the individual
case, a jury sentence reflects the conscience of the community as applied to the circum-
stances of a particular offender and offense. We reject Justice Brennan's contention that this
important standard for assessing the constitutionality of a death penalty should be aban-
doned.
12. In this case, for example, McCleskey declined to enter a guilty plea. According to
his trial attorney: "[T]he Prosecutor was indicating that we might be able to work out a life
sentence if he were willing to enter a plea. But we never reached any concrete stage on that
because Mr. McCleskey's attitude was that he didn't want to enter a plea. So it never got
any further than just talking about it." Tr in No. 4909, p 56 (Jan. 30, 1981).
13. Congress has acknowledged the existence of such discrepancies in criminal sen-
tences, and in 1984 created the United States Sentencing Commission to develop sentencing
guidelines. The objective of the guidelines "is to avoid unwarranted sentencing disparities
among defendants with similar records who have been found guilty of similar criminal
conduct, while maintaining sufficient flexibility to permit individualized sentencing when
warranted by mitigating or aggravating factors not taken into account in the guidelines."
52 Fed Reg 3920 (1987) (emphasis added). No one contends that all sentencing disparities
can be eliminated. The guidelines, like the safeguards in the Gregg-type statute, further an
essential need of the Anglo American criminal justice system—to balance the desirability
of a high degree of uniformity against the necessity for the exercise of discretion.
14. The Baldus study in fact confirms that the Georgia system results in a reasonable
level of proportionality among the class of murderers eligible for the death penalty. As
Professor Baldus confirmed, the system sorts out cases where the sentence of death is highly
likely and highly unlikely, leaving a midrange of cases where the imposition of the death
penalty in any particular case is less predictable. App 35-36. See n 1, supra.
15. Justice Brennan's eloquent dissent of course reflects his often repeated opposition to
the death sentence. His views, that also are shared by Justice Marshall, are principled and
entitled to respect. Nevertheless, since Gregg was decided in 1976, seven Members of this
Court consistently have upheld sentences of death under Gregg-type statutes providing for
meticulous review of each sentence in both state and federal courts. The ultimate thrust of
Justice Brennan's dissent is that Gregg and its progeny should be overruled. He does not,
however, expressly call for the overruling of any prior decision. Rather, relying on the
Baldus study, Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, ques-
tions the very heart of our criminal justice system: the traditional discretion that prosecutors
and juries necessarily must have.
We have held that discretion in a capital punishment system is necessary to satisfy the
Constitution. Woodson v North Carolina, 428 US 280 (1976). See supra, at 303-6. Yet, the
dissent now claims that the "discretion afforded prosecutors and jurors in the Georgia capital
sentencing system" violates the Constitution by creating "opportunities for racial consid-
erations to influence criminal proceedings." Post, at 333.
The dissent contends that in Georgia "[n]o guidelines govern prosecutorial decisions . . .
and that Georgia provides juries with no list of aggravating and mitigating factors, nor any
standard for balancing them against one another." Post, at 333.
Prosecutorial decisions necessarily involve both judgmental and factual decisions that
vary from case to case. See ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed 1982).
Thus, it is difficult to imagine guidelines that would produce the predictability sought by
the dissent without sacrificing the discretion essential to a humane and fair system of crim-
inal justice. Indeed, the dissent suggests no such guidelines for prosecutorial discretion.
The reference to the failure to provide juries with the list of aggravating and mitigating
factors is curious. The aggravating circumstances are set forth in detail in the Georgia statute.
... The jury is not provided with a list of aggravating circumstances because not all of them
are relevant to any particular crime. Instead, the prosecutor must choose the relevant cir-
cumstances and the State must prove to the jury that at least one exists beyond a reasonable
doubt before the jury can even consider imposing the death sentence. It would be improper
and often prejudicial to allow jurors to speculate as to aggravating circumstances wholly
without support in the evidence.
The dissent's argument that a list of mitigating factors is required is particularly anom-
alous. We have held that the Constitution requires that juries be allowed to consider "any
relevant mitigating factor," even if it is not included in a statutory list. Eddings v Oklahoma,
455 US 104 (1982). See Lockett v Ohio, 438 US 586 (1978). The dissent does not attempt
to harmonize its criticism with this constitutional principle. The dissent also does not suggest
any standard, much less a workable one, for balancing aggravating and mitigating factors.
If capital defendants are to be treated as "uniquely individual human beings," Woodson v
North Carolina, supra, at 304, then discretion to evaluate and weigh the circumstances rel-
evant to the particular defendant and the crime he committed is essential.
The dissent repeatedly emphasizes the need for "a uniquely high degree of rationality
in imposing the death penalty." Post, at 335. Again, no suggestion is made as to how greater
"rationality" could be achieved under any type of statute that authorizes capital punishment.
The Gregg-type statute imposes unprecedented safeguards in the special context of capital
punishment. These include: (i) a bifurcated sentencing proceeding; (ii) the threshold require-
ment of one or more aggravating circumstances; and (iii) mandatory State Supreme Court
review. All of these are administered pursuant to this Court's decisions interpreting the limits
of the Eighth Amendment on the imposition of the death penalty, and all are subject to
ultimate review by the Court. These ensure a degree of care in the imposition of the sentence
of death that can be described only as unique. Given these safeguards already inherent in
the imposition and review of capital sentences, the dissent's call for greater rationality is no
less than a claim that a capital punishment system cannot be administered in accord with
the Constitution. As we reiterate, infra, the requirement of heightened rationality in the
imposition of capital punishment does not "plac[e] totally unrealistic conditions on its use."
Gregg v Georgia, 428 US, at 199, n 50.
16. Studies already exist that allegedly demonstrate a racial disparity in the length of
prison sentences. See, e.g., Spohn, Gruhi, & Welch, The Effect of Race on Sentencing: A
Reexamination of an Unsettled Question, 16 Law & Soc Rev 71 (1981-1982); Unnever,
Frazier, & Henretta, Race Differences in Criminal Sentencing, 21 Sociological Q 197 (1980).
17. In Regents of the University of California v Bakke, 438 US 265 (1978) (opinion of
Powell, J.), we recognized that the national "majority" "is composed of various minority
groups, most of which can lay claim to a history of prior discrimination at the hands of the
State and private individuals." Increasingly whites are becoming a minority in many of the
larger American cities. There appears to be no reason why a white defendant in such a city
could not make a claim similar to McCleskey's if racial disparities in sentencing arguably
are shown by a statistical study.
Finally, in our heterogeneous society the lower courts have found the boundaries of race
and ethnicity increasingly difficult to determine.
18. See Chamblin, The Effect of Sex on the Imposition of the Death Penalty (speech
given at a symposium of the American Psychological Association, entitled "Extra-legal
Attributes Affecting Death Penalty Sentencing," New York City, Sept., 1979); Steffens-
meier, Effects of Judge's and Defendant's Sex on the Sentencing of Offenders, 14 Psy-
chology, Journal of Human Behavior, 3 (Aug. 1977).
19. See Kerr, Bull, MacCoun, & Rathborn, Effects of Victim Attractiveness, Care and
Disfigurement on the Judgements of American and British Mock Jurors, 24 Brit J Social
Psych 47 (1985); Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611
(1985), at 1638, n 128 (citing Shoemaker, South, & Lowe, Facial Stereotypes of Deviants
and Judgments of Guilt or Innocence, 51 Social Forces 427 (1973)).
20. Some studies indicate that physically attractive defendants receive greater leniency
in sentencing than unattractive defendants, and that offenders whose victims are physically
attractive receive harsher sentences than defendants with less attractive victims. Smith &
Hed, Effects of Offenders' Age and Attractiveness on Sentencing by Mock Juries, 44 Psy-
chological Rep 691 (1979); Kerr, Beautiful and Blameless: Effects of Victim Attractiveness
and Responsibility on Mock Jurors' Verdicts, 4 Personality and Social Psych Bull 479
(1978). But see Baumeister & Darley, Reducing the Biasing Effect of Perpetrator Attrac-
tiveness in Jury Simulation, 8 Personality and Social Psych Bull 286 (1982); Schwibbe &
Schwibbe, Judgment and Treatment of People of Varied Attractiveness, 48 Psychological
Rep 11 (1981); Weiten, The Attraction-Leniency Effect in Jury Research: An Examination
of External Validity, 10 J Applied Social Psych 340 (1980).
21. Justice Stevens, who would not overrule Gregg, suggests in his dissent that the
infirmities alleged by McCleskey could be remedied by narrowing the class of death-eligible
defendants to categories identified by the Baldus study where "prosecutors consistently seek,
and juries consistently impose, the death penalty without regard to the race of the victim or
the race of the offender." This proposed solution is unconvincing. First, "consistently" is
a relative term, and narrowing the category of death-eligible defendants would simply shift
the borderline between those defendants who received the death penalty and those who did
not. A borderline area would continue to exist and vary in its boundaries. Moreover, because
the discrepancy between borderline cases would be difficult to explain, the system would
likely remain open to challenge on the basis that the lack of explanation rendered the sen-
tencing decisions unconstitutionally arbitrary.
Second, even assuming that a category with theoretically consistent results could be
identified, it is difficult to imagine how Justice Stevens' proposal would or could operate
on a case-by-case basis. Whenever a victim is white and the defendant is a member of a
different race, what steps would a prosecutor be required to take—in addition to weighing
the customary prosecutorial considerations—before concluding in the particular case that he
lawfully could prosecute? In the absence of a current, Baldus-type study focused particularly
on the community in which the crime was committed, where would he find a standard?
Would the prosecutor have to review the prior decisions of community prosecutors and
determine the types of cases in which juries in his jurisdiction "consistently" had imposed
the death penalty when the victim was white and the defendant was of a different race? And
must he rely solely on statistics? Even if such a study were feasible, would it be unlawful
for the prosecutor, in making his final decision in a particular case, to consider the evidence
of guilt and the presence of aggravating and mitigating factors? However conscientiously a
prosecutor might attempt to identify death-eligible defendants under the dissent's suggestion,
it would be a wholly speculative task at best, likely to result in less rather than more fairness
and consistency in the imposition of the death penalty.
21
Death Penalty Sentencing: Research

Indicates Pattern of Racial Disparities
U.S. GENERAL ACCOUNTING OFFICE
The Anti-Drug Abuse Act of 1988 (Public Law 100-690) requires us to study
capital sentencing procedures to determine if the race of either the victim or the
defendant influences the likelihood that defendants will be sentenced to death. We
did an evaluation synthesis—a review and critique of existing research—on this
subject to fulfill the mandate. This report provides a summary of our findings and
a discussion of our approach and data limitations.
Approach
An evaluation synthesis is a critical integration of findings from existing empirical

research on a given topic—in this case death penalty sentencing after the Furman
decision. First, we identified and collected all potentially relevant studies done at
national, state, and local levels from both published and unpublished sources. Com-
puter-generated bibliographic searches and manual reviews of the bibliographies of
studies that we obtained contributed to our list of potentially relevant material. We
also surveyed 21 criminal justice researchers and directors of relevant organizations
whose work relates to death penalty sentencing to identify additional research. We
screened more than 200 annotated citations and references to determine relevance
to our review. We excluded studies that (1) were based primarily on data collected
prior to the Furman decision and (2) did not examine race as a factor that might
influence death penalty sentencing. From this initial screening we obtained 53 stud-
ies that we determined to be relevant.
We then reviewed each of the 53 studies to determine both appropriateness and
overall quality of the research. We excluded studies that did not contain empirical
data or were duplicative (a few researchers published several articles, with the most
Reprinted from GAO/GGD-90-57, 26 February 1990. Contributors to this report include Lowell Dodge,
Director, Administration of Justice Issues; Laurie E. Ekstrand, Chief Social Scientist; Harriet C. Ganson,
Analyst-in-Charge; Lisa Cassady, Social Science Analyst; James L. Fremming, Consultant; and Douglas
M. Sloane, Statistical Consultant. Some footnotes have been deleted and the rest renumbered.
268
Death Penalty Sentencing 269
current including data and findings cited in earlier versions). Twenty-eight studies
remained after this assessment. The information included in these studies forms the
basis for our findings.
Next, we rated the 28 studies according to research quality. [The studies are
listed in the Appendix.] Two social science analysts independently rated each study
in five dimensions: (1) study design, (2) sampling, (3) measurement, (4) data col-
lection, and (5) analysis techniques. A rating for overall quality was also given. A
third analyst reviewed the raters' assessments to ensure consistency. In addition, a
statistician reviewed the studies that used specialized analytic techniques to assess
whether the techniques were applied correctly and whether the analyses fully sup-
ported the researchers' conclusions.
Finally, we extracted all relevant information on the relationship of race to death
penalty sentencing from each of the studies. This information was compared and
contrasted across studies to identify similarities and differences in the findings.
Evaluation synthesis has benefits and limitations. The major benefit is that ev-
idence from multiple studies can provide greater support for a finding than evidence
from an individual study. The major limitation is that this approach depends on
the quantity and quality of the design and methodology of available studies and
the comprehensiveness of their reporting. In this case, the body of research con-
cerning discrimination in death penalty sentencing is both of sufficient quality and
quantity to warrant the evaluation synthesis approach.
Description of the Studies
We evaluated 28 studies which were done by 21 sets of researchers. The studies

covered homicide cases for different time periods through 1988, many states that
have the death penalty, and different geographic regions of the country. In three
instances, two or more articles were generated from a single database, with each
article focusing on a different aspect of the sentencing process. A few researchers
used data from other studies in their analyses. Overall, the 28 studies constitute 23
different data sets.
We rated almost half of the studies as high or medium quality; the remainder
were rated as low. It is important to evaluate research quality for two reasons: (1)
the results of the synthesis should be based on a sufficient number of medium or
high quality studies; and (2) it is important to note differences in studies' findings,
if any, by the quality of the studies. By quality we mean the strength of the design
and the rigor of the analytic technique that leads to a level of confidence we have
in the study findings. We judged a study to be high quality if it
• was characterized by a sound design that analyzed homicide cases throughout

the sentencing process;
• included legally relevant variables (aggravating and mitigating circumstances);
and
• used statistical analysis techniques to control for variables that correlate with
race and/or capital sentencing.
We judged a study as medium quality if we found it to be lacking in one or

more of the above characteristics. However, the medium quality studies generally
were more similar to high quality studies than to low quality studies. Low quality
studies typically had weak or flawed designs, relied on less reliable statistical anal-
ysis, and were simplistic in interpretation of the data. Studies published before
1985 comprised a larger proportion of lower quality studies than those published
subsequently. This coincides with the relatively recent development and use of a
more sophisticated statistical technique appropriate for use with data such as those
in death penalty studies.
Limitations of the Studies
We critiqued all of the studies to identify methodological limitations in the design

and analysis of the research. We identified three major limitations among these
studies: (1) the threat of sample selection bias, (2) the problem of omitted variables,
and (3) the small sample sizes.
Sample selection bias implies that the cases under consideration are not repre-
sentative of all the cases of interest. The criminal justice system is characterized
by discretionary processes of selection at different points in the system. Racial
factors may influence decisions at different stages of the process. A study that
considered only whether persons convicted were sentenced to death was especially
prone to the biasing effect of sample selection. Racial factors may have influenced
decisions earlier in the process, such as whether the prosecutor requested that an
offender be charged with capital murder. This discretion exercised early in the
process may have the effect of concealing (masking) race effects if analysis is
limited only to the later stages.
We found sample selection bias in more than half of the low quality studies;
these studies typically analyzed only those cases in which the defendant was con-
victed of capital murder or received the death penalty. Studies that included all
reported homicides and followed the disposition of these defendants from initial
charge through subsequent stages of the judicial process are not likely to have been
affected by this bias. More than two-thirds of the studies we rated high or medium
quality picked up cases prior to conviction and followed these cases through the
judicial process.
Another limitation is the problem of omitted variables. This limitation is espe-
cially important in studies examining racial discrimination. This is because the
effect of race is considered the residual—after all relevant and important variables
have been controlled, the effect that remains, the residual, is interpreted to be racial
disparity. Omitting relevant variables can affect results by failing to reduce the
residual appropriately, thus enhancing the perceived racial disparity. Omitted var-
iables in death penalty research are potentially of two types: (1) variables that were
Death Penalty Sentencing 271
known and were believed to be correlated with race or the death penalty and (2)
variables that were not known and may be correlated with race or the death penalty
outcome.
Several of the higher quality studies controlled for many variables. For example,
one high quality study controlled for more than 200 variables. Only a few variables
are shown to be highly explanatory. Most of these are controlled for in the better
quality studies. However, there are variables such as strength of evidence or so-
cioeconomic status of the victim and defendant which are difficult to measure or
obtain. If there are important omitted variables (either because they are difficult to
measure or because they are unknown), other explanations for the differences in
death penalty outcomes cannot be excluded. But for another variable to influence
the existing disparity it would have to (1) be jointly correlated with both race and
the death penalty outcome and (2) operate independently of the factors already
included in the analysis.
A third limitation relates to the consequences of the small sample sizes in the
analyses of death penalty imposition. The imposition of the death penalty is a
relatively rare event. As such, in most studies there were very few cases at the end
of the process—the sentencing and imposition stages. The small sample size places
limits on the usefulness of statistical techniques for analysis at these final stages
and thus limits the rigor of analyses at these stages.
While the severity of the limitations varied, as reflected in the studies' ratings,
these limitations do not preclude a meaningful analysis of the studies. We have
considered quality in evaluating the studies and arriving at our findings.
Findings
Our synthesis of the 28 studies shows a pattern of evidence indicating racial dis-
parities in the charging, sentencing, and imposition of the death penalty after the
Furman decision.
In 82 percent of the studies, race of victim was found to influence the likelihood
of being charged with capital murder or receiving the death penalty, i.e., those who
murdered whites were found to be more likely to be sentenced to death than those
who murdered blacks.1 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.
The race of victim influence was found at all stages of the criminal justice
system process, although there were variations among studies as to whether there
was a race of victim influence at specific stages. The evidence for the race of
victim influence was stronger for the earlier stages of the judicial process (e.g.,
prosecutorial decision to charge defendant with a capital offense, decision to pro-
ceed to trial rather than plea bargain) than in later stages. This was because the
earlier stages were comprised of larger samples allowing for more rigorous anal-
yses. However, decisions made at every stage of the process necessarily affect an
individual's likelihood of being sentenced to death.
Legally relevant variables, such as aggravating circumstances, were influential

but did not explain fully the racial disparities researchers found. In the high or
medium quality studies, researchers used appropriate statistical techniques to con-
trol for legally relevant factors, e.g., prior criminal record, culpability level, hei-
nousness of the crime, and number of victims. The analyses show that after
controlling statistically for legally relevant variables and other factors thought to
influence death penalty sentencing (e.g., region, jurisdiction), differences remain in
the likelihood of receiving the death penalty based on race of victim.
The evidence for the influence of the race of defendant on death penalty out-
comes was equivocal. Although more than half of the studies found that race of
defendant influenced the likelihood of being charged with a capital crime or re-
ceiving the death penalty,2 the relationship between race of defendant and outcome
varied across studies. For example, sometimes the race of defendant interacted with
another factor. In one study researchers found that in rural areas black defendants
were more likely to receive death sentences, and in urban areas white defendants
were more likely to receive death sentences. In a few studies, analyses revealed
that the black defendant/white victim combination was the most likely to receive
the death penalty. However, the extent to which the finding was influenced by race
of victim rather than race of defendant was unclear.
Finally, more than three-fourths of the studies that identified a race of defendant
effect found that black defendants were more likely to receive the death penalty.
However, the remaining studies found that white defendants were more likely to
be sentenced to death.
To summarize, the synthesis supports a strong race of victim influence. The race
of offender influence is not as clear cut and varies across a number of dimensions.
Although there are limitations to the studies' methodologies, they are of sufficient
quality to support the synthesis findings.
We are sending copies of this report to cognizant congressional committees, the
Attorney General, and other interested parties.
Notes
1. When we refer to a finding of racial disparities at the sentencing and imposition stages
we are, in fact, including disparities that occurred in earlier stages of the judicial process,
e.g., charging and decision to proceed to trial.
2. About two-thirds of these studies were of high or medium quality.
Appendix: List of Studies
Arkin, Stephen. "Discrimination and Arbitrariness in Capital Punishment: An Analysis of

Post-Furman Murder Cases in Dade County, Florida, 1973-1976." Stanford Law Re-
view, Vol. 33 (November 1980) 75-101.
Baldus, David, George Woodworth, and Charles Pulaski. Equal Justice and the Death Pen-
alty: A Legal and Empirical Analysis. Boston: Northeastern University Press, 1990.
Barnett, Arnold. "Some Distribution Patterns for the Georgia Death Sentence." University
of California Davis Law Review, Vol. 18, No. 4 (Summer 1985) 1327-74.
Berk, Richard and Joseph Lowery. "Factors Affecting Death Penalty Decisions in Missis-
sippi." Unpublished manuscript, June 1985.
Bienen, Leigh et al. "The Reimposition of Capital Punishment in New Jersey: The Role of
Prosecutorial Discretion." Rutgers Law Review (Fall 1988) 27-372.
Bowers, William. "The Pervasiveness of Arbitrariness and Discrimination Under Post-
Furman Capital Statutes." Journal of Criminal Law & Criminology, Vol 74. No. 3
(Fall 1983) 1067-100.
Bowers, William and Glenn Pierce. "Arbitrariness and Discrimination Under Post-Furman
Capital Statutes." Crime and Delinquency (October 1980) 563-635.
Ekland-Olson, Sheldon. "Structured Discretion, Racial Bias and the Death Penalty: The
First Decade After Furman in Texas." Social Science Quarterly, Vol. 69 (December
1988) 853-73.
Foley, Linda. "Florida After the Furman Decision: The Effect of Extralegal Factors on the
Processing of Capital Offense Cases." Behavioral Sciences & the Law, Vol. 5, No. 4
(Autumn 1987) 457-65.
Foley, Linda and Richard Powell. "The Discretion of Prosecutors, Judges, and Juries in
Capital Cases." Criminal Justice Review Vol. 7, No. 2 (1982) 16-22.
Gross, Samuel and Robert Mauro. "Patterns of Death: An Analysis of Racial Disparities in
Capital Sentencing and Homicide Victimization." Stanford Law Review, Vol. 37 (1984)
27-153.
Keil, Thomas and Gennaro Vito. "Race and the Death Penalty in Kentucky Murder Trials:
An Analysis of Post-Gregg Outcomes." Forthcoming in Justice Quarterly.
Keil, Thomas and Gennaro Vito. "Race, Homicide Severity, and Application of the Death
Penalty: A Consideration of the Barnett Scale." Criminology, Vol. 27, No. 3 (1989)
511-35.
Kleck, Gary. "Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the
Evidence with Additional Evidence on the Death Penalty." American Sociological Re-
view, Vol. 46 (1981) 783-805.
Klein, Stephen. "Relationship of Offender and Victim Race to Death Penalty Sentences in
California." Unpublished manuscript, The Rand Corporation (1989).
Klein, Stephen, Allen Abrahamse, and John Rolph. "Racial Equity in Prosecutor Requests
for the Death Penalty." Unpublished manuscript, The Rand Corporation (1987).
Klemm, Margaret F. "The Determinants of Capital Sentencing in Louisiana, 1975-1984."
Dissertation, University of New Orleans (1986).
273
Lewis, Peter, Henry Mannle, and Harold Vetter. "A Post-Furman Profile of Florida's Con-
demned—A Question of Discrimination in Terms of Race of the Victim and a Comment
on Spenkelink v. Wainwright." Stetson Law Review, Vol. IX, No. 1 (1979) 1^5.
Murphy, Elizabeth. "The Application of the Death Penalty in Cook County." Illinois Bar
Journal Vol. 93 (1984) 90-95.
Nakell, Barry and Kenneth Hardy. The Arbitrariness of the Death Penalty. Philadelphia:
Temple University Press, 1987.
Paternoster, Raymond and Ann Marie Kazyaka. "The Administration of the Death Penalty
in South Carolina: Experiences over the First Few Years." South Carolina Law Review,
Vol. 39, No. 2 (1988) 245-414.
Radelet, Michael. "Racial Characteristics and the Imposition of the Death Penalty." Amer-
ican Sociological Review, Vol. 46 (1981) 918-27.
Radelet, Michael and Margaret Vandiver. "The Florida Supreme Court and Death Penalty
Appeals." Journal of Criminal Law and Criminology, Vol. 74, No. 3 (1983) 913-26.
Radelet, Michael and Glenn Pierce. "Race and Prosecutorial Discretion in Homicide Cases."
Law and Society Review, Vol. 19, No. 4 (1985) 587-621.
Riedel, Marc. "Discrimination in the Imposition of the Death Penalty: A Comparison of
the Characteristics of Offenders Sentenced Pre-Furman and Post-Furman." Temple Law
Quarterly, Vol. 49, No. 2 (1976) 261-87.
Smith, Dwayne M. "Patterns of Discrimination in Assessments of the Death Penalty: The
Case of Louisiana." Journal of Criminal Justice, Vol. 15 (1987) 279-86.
Vito, Gennaro and Thomas Keil. "Capital Sentencing in Kentucky: An Analysis of the
Factors Influencing Decision Making in the Post-Gregg Period." Journal of Criminal
Law & Criminology, Vol. 79, No. 2 (Summer 1988) 483-508.
Zeisel, Hans. "Race Bias in the Administration of the Death Penalty: The Florida Experi-
ence." Harvard Law Review, Vol. 95, No. 2 (December 1981) 456-68.
22
Counsel for the Poor: The Death

Sentence Not for the Worst Crime but
for the Worst Lawyer
STEPHEN B. BRIGHT
After years in which she and her children were physically abused by her adulterous
husband, a woman in Talladega County, Alabama, arranged to have him killed.
Tragically, murders of abusive spouses are not rare in our violent society, but
seldom are they punished by the death penalty. Yet this woman was sentenced to
death. Why?
It may have been in part because one of her court-appointed lawyers was so
drunk that the trial had to be delayed for a day after he was held in contempt and
sent to jail. The next morning, he and his client were both produced from jail, the
trial resumed, and the death penalty was imposed a few days later.1 It may also
have been in part because this lawyer failed to find hospital records documenting
injuries received by the woman and her daughter, which would have corroborated
their testimony about abuse. And it may also have been because her lawyers did
not bring their expert witness on domestic abuse to see the defendant until 8 P.M.
on the night before he testified at trial.2
Poor people accused of capital crimes are often defended by lawyers who lack
the skills, resources, and commitment to handle such serious matters. This fact is
confirmed in case after case. It is not the facts of the crime, but the quality of legal
representation,3 that distinguishes this case, where the death penalty was imposed,
from many similar cases, where it was not.
The woman in Talladega, like any other person facing the death penalty who
cannot afford counsel, is entitled to a court-appointed lawyer under the Supreme
Court's decision in Powell v. Alabama. But achieving competent representation in
capital and other criminal cases requires much more than the Court's recognition,
in Powell and in Gideon v. Wainwright, of the vital importance of counsel and of
6
'thoroughgoing investigation and preparation." Providing better representation to-
Reprinted from Yale Law Journal 103, no. 7 (May 1994): 1835-83 and by permission of the author.
Some footnotes have been omitted and the rest renumbered.
275
day than the defendants had in Scottsboro in 1931 requires money, a structure for
providing indigent defense that is independent of the judiciary and prosecution,
and skilled and dedicated lawyers. As Anthony Lewis observed after the Gideon
decision extended the right to counsel to all state felony prosecutions:
It will be an enormous task to bring to life the dream of Gideon v. Wainwright—the
dream of a vast, diverse country in which every person charged with a crime will be
capably defended, no matter what his economic circumstances, and in which the
lawyer representing him will do so proudly, without resentment at an unfair burden,
sure of the support needed to make an adequate defense.4
More than sixty years after Powell and thirty years after Gideon, this task re-
mains uncompleted, the dream unrealized. This essay describes the pervasiveness
of deficient representation, examines the reasons for it, and considers the likelihood
of improvement.
I. The Difference a Competent Lawyer Makes in

a Capital Case
Arbitrary results, which are all too common in death penalty cases, frequently stem
from inadequacy of counsel. The process of sorting out who is most deserving of
society's ultimate punishment does not work when the most fundamental compo-
nent of the adversary system, competent representation by counsel, is missing.5
Essential guarantees of the Bill of Rights may be disregarded because counsel failed
to assert them, and juries may be deprived of critical facts needed to make reliable
determinations of guilt or punishment. The result is a process that lacks fairness
and integrity.
For instance, the failure of defense counsel to present critical information is one
reason that Horace Dunkins was sentenced to death in Alabama. Before his exe-
cution in 1989, when newspapers reported that Dunkins was mentally retarded, at
least one juror came forward and said she would not have voted for the death
sentence if she had known of his condition.6 Nevertheless, Dunkins was executed.
This same failure of defense counsel to present critical information also helps
account for the death sentences imposed on Jerome Holloway—who has an IQ of
49 and the intellectual capacity of a 7-year old—in Bryan County, Georgia, and
William Alvin Smith—who has an IQ of 65—in Oglethorpe County, Georgia. It
helps explain why Donald Thomas, a schizophrenic youth, was sentenced to death
in Atlanta, where the jury knew nothing about his mental impairment because his
lawyer failed to present any evidence about his condition. In each of these cases,
the jury was unable to perform its constitutional obligation to impose a sentence
based on "a reasoned moral response to the defendant's background, character and
crime."7 because it was not informed by defense counsel of the defendant's back-
ground and character.
It can be said confidently that the failure to present such evidence made a
difference in the Holloway, Smith, and Thomas cases. After each was reversed—
Counsel for the Poor 277
one of them for reasons having nothing to do with counsel's incompetence—the

pertinent information was presented to the court by new counsel, the death sentence
was not imposed. But for many sentenced to death, such as Horace Dunkins, there
is no second chance.
Quality legal representation also made a difference for Gary Nelson and Fed-
erico Martinez-Macias, but they did not receive it until years after they were
wrongly convicted and sentenced to death. Nelson was represented at his capital
trial in Georgia in 1980 by a sole practitioner who had never tried a capital case.
The court-appointed lawyer, who was struggling with financial problems and a
divorce, was paid at a rate of only $15 to $20 per hour. His request for co-counsel
was denied. The case against Nelson was entirely circumstantial, based on ques-
tionable scientific evidence, including the opinion of a prosecution expert that a
hak found on the victim's body could have come from Nelson. Nevertheless, the
appointed lawyer was not provided funds for an investigator and, knowing a request
would be denied, did not seek funds for an expert. Counsel's closing argument was
only 255 words long. The lawyer was later disbarred for other reasons.
Nelson had the good fortune to be represented pro bono in postconviction pro-
ceedings by lawyers willing to spend their own money to investigate Nelson's
case.8 They discovered that the hair found on the victim's body, which the pros-
ecution expert had linked to Nelson, lacked sufficient characteristics for micro-
scopic comparison. Indeed, they found that the Federal Bureau of Investigation had
previously examined the hair and found that it could not validly be compared. As
a result of such inquiry, Gary Nelson was released after eleven years on death row.
Federico Martinez-Macias was represented at his capital trial in El Paso, Texas,
by a court-appointed attorney paid only $11.84 per hour. Counsel failed to present
an available alibi witness, relied upon an incorrect assumption about a key eviden-
tiary point without doing the research that would have corrected his erroneous view
of the law, and failed to interview and present witnesses who could have testified
in rebuttal of the prosecutor's case. Martinez-Macias was sentenced to death.
Martinez-Macias received competent representation for the first time when a
Washington, D.C., firm took his case pro bono. After a full investigation and de-
velopment of facts regarding his innocence, Martinez-Macias won federal habeas
corpus relief. An El Paso grand jury refused to re-indict him and he was released
after nine years on death row.9
Inadequate representation often leaves the poor without the protections of the
Bill of Rights. An impoverished person was sentenced to death in Jefferson County,
Georgia, in violation of one of the most basic guarantees of our Bill of Rights—
the right to a representative jury selected without discrimination on the basis of
race. African-Americans make up 54.5% of the population of that county, but the
jury pool was only 21.6% black, a severe underrepresentation of over 50%. But
this issue was not properly raised and preserved by the court-appointed lawyer for
the accused. The defendant had the extreme misfortune of being represented—over
his protests—by a court-appointed lawyer who, when later asked to name the crim-
inal law decisions from any court with which he was familiar, could name only
two: "Miranda and Dred Scott." As a result of the lawyer's failure to challenge
the racial discrimination at or before trial, the reviewing courts held that the de-
fendant was barred from vindication of his constitutional rights.
The difference that representative juries and competent counsel make in capital
cases is illustrated by the cases of two codefendants, John Eldon Smith and Rebecca
Machetti. They were sentenced to death by unconstitutionally composed juries
within a few weeks of each other in Bibb County, Georgia. Machetti's lawyers
challenged the jury composition in state court; Smith's lawyers did not because
they were unaware of the Supreme Court decision prohibiting gender discrimination
in juries.
A new trial was ordered for Machetti by the federal court of appeals. At that
trial, a jury which fairly represented the community imposed a sentence of life
imprisonment. The federal courts refused to consider the identical issue in Smith's
case because his lawyers had not preserved it. He was executed, becoming the first
person to be executed under the Georgia death penalty statute upheld by the U.S.
Supreme Court in 1976. Had Machetti been represented by Smith's lawyers in state
court and Smith by Machetti's lawyers, Machetti would have been executed and
Smith would have obtained federal habeas corpus relief.
In these examples, imposition of the death penalty was not so much the result
of the heinousness of the crime or the incorrigibility of the defendant—the factors
upon which imposition of capital punishment supposedly is to turn—but rather of
how bad the lawyers were. In consequence, a large part of the death row population
is made up of people who are distinguished by neither their records nor the cir-
cumstances of their crimes, but by their abject poverty, debilitating mental impair-
ments, minimal intelligence, and the poor legal representation they received.
A member of the Georgia Board of Pardons and Paroles has said that if the files
of 100 cases punished by death and 100 punished by life were shuffled, it would
be impossible to sort them out by sentence based upon information in the files
about the crime and the offender.10 A justice of the Mississippi Supreme Court
made the same observation about the imposition of death sentences in his state in
testimony before the U.S. Senate Judiciary Committee:
I dare say I could take every death sentence case that we have had where we have
affirmed, give you the facts and not tell you the outcome, and then pull an equal
number of murder cases that have been in our system, give you the facts and not tell
you the outcome, and challenge you to pick which ones got the death sentence and
which ones did not, and you couldn't do it.11
Although it has long been fashionable to recite the disgusting facts of murder
cases to show how deserving of death particular defendants may be, such renditions
fail to answer whether the selection process is a principled one based on neutral,
objective factors that provide a "meaningful basis for distinguishing the few cases
in which the [death] penalty is imposed from the many cases in which it is not."12
Virtually all murders involve tragic and gruesome facts. However, the death penalty
is imposed, on average, in only 250 cases of the approximately 20,000 homicides
that occur each year in the United States. Whether death is imposed frequently
turns on the quality of counsel assigned to the accused.
II. The Pervasive Inadequacy of Counsel for the Poor and

the Reasons for it
Inadequate legal representation does not occur in just a few capital cases. It is per-
vasive in those jurisdictions which account for most of the death sentences. The
American Bar Association concluded after an exhaustive study of the issues that "the
inadequacy and inadequate compensation of counsel at trial" was one of the "prin-
cipal failings of the capital punishment systems in the states today."13 Justice Thur-
good Marshall observed that "capital defendants frequently suffer the consequences
of having trial counsel who are ill equipped to handle capital cases."14 The National
Law Journal, after an extensive study of capital cases in six Southern states, found
that capital trials are ' 'more like a random flip of the coin than a delicate balancing of
the scales'' because the defense lawyer is too often ' 'ill trained, unprepared . . . [and]
grossly underpaid."15 Many observers from a variety of perspectives and from dif-
ferent states have found the same scandalous quality of legal representation.
These assessments are supported by numerous cases in which the poor were
defended by lawyers who lacked even the most rudimentary knowledge, resources,
and capabilities needed for the defense of a capital case. Death sentences have been
imposed in cases in which defense lawyers had not even read the state's death
penalty statute or did not know that a capital trial is bifurcated into separate de-
terminations of guilt and punishment.16 State trial judges and prosecutors—who
have taken oaths to uphold the law, including the Sixth Amendment—have allowed
capital trials to proceed and death sentences to be imposed even when defense
counsel fought among themselves or presented conflicting defenses for the same
client,17 referred to their clients by a racial slur,18 cross-examined a witness whose
direct testimony counsel missed because he was parking his car,19 slept through
part of the trial,20 or was intoxicated during trial.21 Appellate courts often review
and decide capital cases on the basis of appellate briefs that would be rejected in
a first-year legal writing course in law school.
There are several interrelated reasons for the poor quality of representation in
these important cases. Most fundamental is the wholly inadequate funding for the
defense of indigents. As a result, there is simply no functioning adversary system
in many states. Public defender programs have never been created or properly
funded in many jurisdictions. The compensation provided to individual court-
appointed lawyers is so minimal that few accomplished lawyers can be enticed to
defend capital cases. Those who do take a capital case cannot afford to devote the
time required to defend it properly. As a result, the accused are usually represented
by lawyers who lack the experience, expertise, and resources of their adversaries
on the prosecution side.
Many state court judges, instead of correcting this imbalance, foster it by inten-
tionally appointing inexperienced and incapable lawyers to defend capital cases,
and denying funding for essential expert and investigative needs of the defense.
The minimal standard of legal representation in the defense of poor people, as
currently interpreted by the Supreme Court, offers little protection to the poor
person stuck with a bad lawyer.
A. The Lack of a Functioning Adversary System

Many death penalty states have two state-funded offices that specialize in handling
serious criminal cases. Both employ attorneys who generally spend years—some
even their entire careers—handling criminal cases. Both pay decent annual salaries
and provide health care and retirement benefits. Both send their employees to con-
ferences and continuing legal education programs each year to keep them up to
date on the latest developments in the law. Both have at their disposal a stable of
investigative agencies, a wide range of experts, and mental health professionals
anxious to help develop and interpret facts favorable to their side. Unfortunately,
however, in many states both of these offices are on the same side: the prosecution.
One is the District Attorney's office in each judicial district, whose lawyers
devote their time exclusively to handling criminal matters in the local court sys-
tems. These lawyers acquire considerable expertise in the trial of criminal cases,
including capital cases. There are, for example, prosecutors in the District Attor-
ney's office in Columbus, Georgia, who have been trying death penalty cases since
the state's current death penalty statute was adopted in 1973.
The other office is the state Attorney General's office, which usually has a unit
made up of lawyers who specialize in handling the appeals of criminal cases and
habeas corpus matters. Here, too, lawyers build expertise in handling capital cases.
For example, the head of the unit that handles capital litigation for the Georgia
Attorney General has been involved in that work since 1976, the same year the
Supreme Court upheld Georgia's death penalty statute. She brings to every case a
wealth of expertise developed in seventeen years of litigating capital cases in all
the state and federal courts involved in Georgia cases. She and her staff are called
upon by district attorneys around the state for consultation on pending cases and,
on occasion, will assist in trial work. It is the normal practice in Georgia that briefs
by both the district attorney and the attorney general are filed with the Georgia
Supreme Court on the direct appeal of a capital case.
The specialists in the offices of both the district attorneys and the attorneys
general have at their call local, state, and, when needed, federal investigative and
law enforcement agencies. They have a group of full-time experts at the crime
laboratory and in the medical examiner's offices to respond to crime scenes and
provide expert testimony when needed. If mental health issues are raised, the pros-
ecution has a group of mental health professionals at the state mental facilities. No
one seriously contends that these professional witnesses are objective. They rou-
tinely testify for the prosecution as part of their work, and prosecutors enjoy long-
standing working relationships with them.
In Alabama, Georgia, Mississippi, Louisiana, Texas, and many other states with
a unique fondness for capital punishment, there is no similar degree of speciali-
zation or resources on the other side of capital cases. A poor person facing the
death penalty may be assigned an attorney who has little or no experience in the
defense of capital or even serious criminal cases, one reluctant or unwilling to
defend him, one with little or no empathy or understanding of the accused or his
particular plight, one with little or no knowledge of criminal or capital punishment
law, or one with no understanding of the need to document and present mitigating
circumstances. Although it is widely acknowledged that at least two lawyers, sup-

ported by investigative and expert assistance, are required to defend a capital case,
some of the jurisdictions with the largest number of death sentences still assign
only one lawyer to defend a capital case.22
In contrast to the prosecution's virtually unlimited access to experts and inves-
tigative assistance, the lawyer defending the indigent accused in a capital case may
not have any investigative or expert assistance to prepare for trial and present a
defense. A study of twenty capital cases in Philadelphia in 1991 and 1992 found
that the court "paid for investigators in eight of the twenty cases, spending an
average of $605 in each of the eight" and that the court "paid for psychologists
in two of them, costing $400 in one case, $500 in the other."23 It is impossible
even to begin a thorough investigation or obtain a comprehensive mental health
evaluation for such paltry amounts.
Although the Supreme Court has held that indigent defendants may be entitled
to expert assistance in certain circumstances, defense attorneys often do not even
request such assistance because they are indifferent or know that no funds will
be available.24 Courts often refuse to authorize funds for investigation and ex-
perts by requiring an extensive showing of need that frequently cannot be made
without the very expert assistance that is sought. Many lawyers find it impossible
to maneuver around this "Catch 22," but even when a court recognizes the right
to an expert, it often authorizes so little money that no competent expert will get
involved.
An indigent accused facing the death penalty in Columbus, Georgia, was as-
signed counsel by the local trial judge, a former district attorney who had tried
high profile capital cases on the way to becoming a judge.25 Neither of the two
lawyers appointed had ever tried a capital case before. The lawyers were denied
any funds for an investigator or expert assistance. The case was prosecuted by an
assistant district attorney with over fifteen years of experience in trying capital and
other criminal cases. The defense was unable to investigate the case or present any
expert testimony in response to the state's fingerprint and identification technicians,
ballistics expert, coroner, and medical examiner.
An Alabama attorney, appointed without co-counsel and granted only $500 for
expert and investigative expenses to defend a highly publicized capital case, facing
three prosecutors and an array of law enforcement agencies and expert witnesses,
described his situation:
Without more than $500, there was only one choice, and that is to go to the bank
and to finance this litigation, myself, and I was just financially unable to do that. It
would have cost probably in excess of thirty to forty thousand dollars, and I just
could not justify taking those funds from my practice, or my family at that time.26
Not surprisingly, the attorney was simply unable to investigate the case properly:
I could not take days at a time out of my office to do essentially non-legal work.
And investigation is necessary, certainly, to prepare a case, but it is non-legal....
You're actually pounding the pavement, trying to come up with the same information
that a person who is paid substantially less per hour could take care of, I mean,
whether it be the investigator for the Sheriff's Department or the District Attorney's
office or the F.B.I., or the U.S. Attorney's office. You don't find the U.S. Attorney
pounding the pavement, trying to investigate facts.... And it just creates a terrible
situation when you have to do everything for yourself.27
As a result, much of the investigation simply was not done and critical evidence
was not presented. With regard to the lack of funds for expert witnesses, the lawyer
testified that in civil cases, which constituted 90% of his caseload, he would have
hired the required experts because failure to do so would have constituted mal-
practice.
An attorney involved in the defense of many capital cases in Arkansas has
described how lawyers in that state are forced to perform "a sort of uninformed
legal triage," ignoring some issues, lines of investigation, and defenses because of
the lack of adequate compensation and resources. He described the costs of such
an approach: "The lawyer pays some in reputation, perhaps, but it is his client
who must pay with his liberty or life.'*28
The adversary system often breaks down at the appellate level as well. The poor
defendant usually does not receive representation equal to that of the prosecution
in a state like Georgia, where on direct appeal of capital cases, specialists in the
offices of the Attorney General and District Attorney both file briefs for the state.
The poor person sentenced to death may be represented by a lawyer with little or
no appellate experience, no knowledge of capital punishment law, and little or no
incentive or inclination to provide vigorous advocacy. For example, in one Georgia
case, the court-appointed attorney filed a brief containing only five pages of ar-
gument, and that only after the Georgia Supreme Court threatened to impose sanc-
tions.29 The lawyer did not raise as an issue the trial court's charge to the sentencing
jury, which was later found by the U.S. Court of Appeals to have violated the
Constitution, did not appear for oral argument, and did not file a supplemental brief
on the jury instruction issue even after requested to do so by the court. Neverthe-
less, the Georgia Supreme Court did not appoint other counsel or require adequate
briefing. Instead, with nothing more before it than counsel's deficient performance,
the court upheld the conviction and death sentence. The death sentence was later
set aside by the U.S. Court of Appeals. There have been numerous other instances
of grossly deficient representation on appeal in cases of those condemned to die.
B. The Lack of Indigent Defense Programs

In many jurisdictions where capital punishment is frequently imposed, there are no
comprehensive public defender systems whose resources can parallel the prosecu-
torial functions of the district attorneys' offices.30 There are no appellate defender
offices that parallel the function of the capital litigation sections of the attorneys
general's offices. In fact, there is no coherent system at all, but a hodgepodge of
approaches that vary from county to county.
In many jurisdictions, judges simply appoint members of the bar in private
practice to defend indigents accused of crimes. The lawyers appointed may not
want the cases, may receive little or no compensation for the time and expense of
handling them, may lack any interest in criminal law, and may not have the skill
to defend those accused of a crime. As a result, the poor are often represented by
inexperienced lawyers who view their responsibilities as unwanted burdens, have
no inclination to help their clients, and have no incentive to develop criminal trial
skills. Lawyers can make more money doing almost anything else. Even many
lawyers who have an interest in criminal defense work simply cannot afford to
continue to represent indigents while also repaying their student loans and meeting
their familial obligations.
Some counties employ a ' 'contract system'' in which the county contracts with
an attorney in private practice to handle all of the indigent cases for a specified
amount. Often contracts are awarded to the lawyer—or group of lawyers—who
bids the lowest. The lawyer is still free to generate other income through private
practice. Any money spent on investigation and experts comes out of the amount
the lawyer receives. These programs are well known for the exceptionally short
shrift that the poor clients receive and the lack of expenditures for investigative
and expert assistance.31
A third system is the employment of a group of lawyers or an organization to
handle all indigent criminal cases while not engaging in any outside practice. These
lawyers are usually called "public defenders," although in some jurisdictions they
lack the investigative and support staff that is considered part of a genuine public
defender program. Some of these offices employ remarkably dedicated attorneys,
whose jobs are nonetheless made almost impossible by overwhelming caseloads
and low funding.
For example, the Fulton County Public Defender program, which serves the
courts in Atlanta, has achieved nationwide notoriety for its high caseloads—an
average of 530 felony cases per attorney for each year plus extraditions, probation
revocations, commitment, and special hearings—and grossly inadequate funding.
A public defender in Atlanta may be assigned as many as forty-five new cases at
one arraignment. At that time, upon first meeting these clients—chained together—
for a nonprivate, nonconfidential "interview" in a holding area near the courtroom,
she may plead many of them guilty and have them sentenced on the spot. As one
public defender described disposing of seventeen indigent defendants: "I met 'em,
pled 'em and closed 'em—all in the same day."32 This system of criminal pro-
cedure is known as "slaughterhouse justice." When one lawyer in the office, after
closing 476 cases in ten months and still carrying a caseload of 122, asserted her
ethical obligation to limit her caseload, she was berated by the trial judge, who
refused her request; she was eventually demoted to juvenile court by the director
of her office.
A public defender in New Orleans represented 418 defendants during the first
seven months of 1991. During this time, he entered 130 guilty pleas at arraignment
and had at least one serious case set for trial on every single trial date during the
period. In "routine cases," he received no investigative support because the three
investigators in the public defender's office were responsible for more than 7000
cases per year. No funds were available for expert witnesses. The Louisiana Su-
preme Court found that, because of the excessive caseloads and insufficient re-
sources of the public defender's office, the clients served by this system are "not
provided with the effective assistance of counsel the [Constitution requires."33
The structure of indigent defense not only varies among states, it varies within
many states from county to county. Some localities employ a combination of these
programs. All of these approaches have several things in common. They evince
the gross underfunding that pervades indigent defense. They are unable to attract
and keep experienced and qualified attorneys because of lack of compensation and
overwhelming workloads. Just when lawyers reach the point when they have han-
dled enough cases to begin avoiding basic mistakes, they leave criminal practice
and are replaced by other young, inexperienced lawyers who are even less able to
deal with the overwhelming caseloads. Generally, no standards are employed for
assignment of cases to counsel or for the performance of counsel. And virtually
no resources are provided for investigative and expert assistance or defense counsel
training.
The situation has further deteriorated in the last few years. This is largely due
to the increased complexity of cases and the increase in the number of cases re-
sulting from expanded resources for police and prosecution and the lack of a similar
increase, and perhaps even a decline, in funding for defense programs. The quality
and funding for defense programs often varies greatly from one county or judicial
district to another in the same state. Texas, which has one of the largest death row
populations and has carried out the most executions since the resumption of capital
punishment in 1976, is one of eight states in which indigent defense is handled at
the county level with no state funding. Funding for indigent defense varies signif-
icantly from county to county. In Louisiana, the indigent defense system is funded
by assessments from traffic tickets. As a result, there have been "wide variations
in levels of funding," adding to a "general pattern . . . of chronic underfunding of
indigent defense programs in most areas of the state."34 Alabama finances its in-
digent defense system through a tax on all civil and criminal filings in the court
system.
The deficiencies in representation resulting from such haphazard and under-
funded approaches have been acknowledged. The vice president of the Georgia
Trial Lawyers Association once described the simple test used in that state to
determine whether a defendant receives adequate counsel as "the mirror test."
"You put a mirror under the court-appointed lawyer's nose, and if the mirror clouds
up, that's adequate counsel."35 It is not surprising that such a dysfunctional system
is incapable of providing legal representation in capital cases. Unlike the offices of
the district attorneys and attorneys general, there is no structure in many states for
training and supervising young lawyers in their initial years of practice to develop
a cadre of attorneys who specialize in the defense of complex cases. There are no
job opportunities in indigent defense for the young law graduates who want to
become criminal lawyers. And, because of the financial incentives, most of those
who have or develop good trial skills quickly move on to personal injury work or,
if they remain in criminal law, the more lucrative defense of drug, pornography,
and white collar cases.
C. Compensation of Attorneys: The Wages of Death

The United States Court of Appeals for the Fifth Circuit, finding that Federico
Martinez-Macias "was denied his constitutional right to adequate counsel in a
capital case in which [his] actual innocence was a close question," observed that,
"The state [Texas] paid defense counsel $11.84 per hour. Unfortunately, the justice
system got only what it paid for."36 What is unusual about the case is not the
amount paid to counsel, but the court's acknowledgement of its impact on the
quality of services rendered.
As we have seen, in many jurisdictions poor people facing the death penalty
are not assigned specialists who work for indigent defense programs, but individual
attorneys, often sole practitioners. In some jurisdictions, the hourly rates in capital
cases may be below the minimum wage or less than the lawyer's overhead ex-
penses. Many jurisdictions limit the maximum fee for a case. At such rates it is
usually impossible to obtain a good lawyer willing to spend the necessary time.
Alabama limits compensation for out-of-court preparation to $20 per hour, up
to a limit of $1000. In one rare Alabama case where two lawyers devoted 246.86
and 187.90 hours respectively to out-of-court preparation, they were still paid
$1000 each, or $4.05 and $5.32 per hour.
In some rural areas in Texas, lawyers receive no more than $800 to handle a
capital case. Generally, the hourly rate is $50 or less. Attorneys appointed to defend
capital cases in Philadelphia are paid an average of $6399 per case. In the few
cases where a second attorney has been appointed, it is often at a flat rate of $500.
A study in Virginia found that, after taking into account an attorney's overhead
expenses, the effective hourly rate paid to counsel representing an indigent accused
in a capital case was $13. In Kentucky, the limit for a capital case is $2500.
Sometimes even these modest fees are denied to appointed counsel. A capital
case in Georgia was resolved with a guilty plea only after the defense attorneys, a
sole practitioner and this author, agreed not to seek attorneys fees as part of the
bargain in which the state withdrew its request for the death penalty.
In cases involving financial as opposed to moral bankruptcy, Atlanta law firms
charge around $125 per hour for their associates, $200 per hour for partners, and
$50 to $80 per hour for paralegals. In civil rights and other civil litigation, courts
routinely order attorneys fees much higher than those paid to appointed lawyers in
capital cases. Paralegals and law clerks in civil rights cases may be compensated
at rates equal to or better than what experienced attorneys are paid in capital cases.
A new attorney at the Southern Center for Human Rights, straight out of law
school, was awarded $65 per hour by a federal court in 1990 for work on a prison
conditions case. More experienced lawyers on that case were paid at rates of $90,
$100, and $150 per hour. Attorneys appointed to death penalty cases in state courts
can never expect compensation at such rates.
A justice of the Georgia Supreme Court recently criticized that court's limitation
of attorneys fees in an employment discrimination case. Limiting the attorney to
$50 per hour instead of providing the opportunity to recover reasonable attorneys
fees would, the justice argued, make it unduly difficult to find lawyers for those
who were victims of discrimination and "effectively den[y] many Georgians the
key to the courthouse door." At lower rates it is even more difficult to find attor-
neys for capital cases.
Thus, it is unlikely that lawyers will seek appointments in capital cases when
they can earn more handling other types of cases. It is undeniable that "[i]n our
pecuniary culture the caliber of personal services rendered usually has a corre-
sponding relationship to the compensation provided."37 Lawyers who have been
appointed to defend the poor in capital trials often vow never to handle another.
It is financially disastrous, emotionally draining, and, for the small-town sole prac-
titioner, it may be very damaging to relations with paying clients. Even at $200 an
hour, it would be difficult to attract lawyers to handle these cases.
Not surprisingly, a recent study in Texas found that ' 'more experienced private
criminal attorneys are refusing to accept court appointments in capital cases because
of the time involved, the substantial infringement on their private practices, the
lack of compensation for counsel fees and expert expenses and the enormous pres-
sure that they feel in handling these cases." "In many counties, the most qualified
attorneys often ask not to be considered for court appointments in capital cases
due to the fact that the rate of compensation would not allow them to cover the
expense of running a law practice."38 The same unwillingness to take cases because
of the low fees has been observed in other states. Consequently, although capital
cases require special skills, the level of compensation is often not enough even to
attract those who regularly practice in the indigent defense system.
D. The Role of Judges: Appointment and Oversight of

Mediocrity and Incompetence
Even if, despite the lack of indigent defense programs and adequate compensation,
capable lawyers were willing to move to jurisdictions with many capital cases,
forego more lucrative business, and take appointments to capital cases, there is still
no assurance that those lawyers would be appointed to the cases. It is no secret
that elected state court judges do not appoint the best and brightest of the legal
profession to defend capital cases. In part, this is because many judges do not want
to impose on those members of the profession they believe to have more important,
financially lucrative things to do. But even when choosing from among those who
seek criminal appointments, judges often appoint less capable lawyers to defend
the most important cases.
Judges have appointed to capital cases lawyers who have never tried a case
before. A study of homicide cases in Philadelphia found that the quality of lawyers
appointed to capital cases in Philadelphia is so bad that "even officials in charge
of the system say they wouldn't want to be represented in Traffic Court by some
of the people appointed to defend poor people accused of murder."39 The study
found that many of the attorneys were appointed by judges based on political
connections, not legal ability. "Philadelphia's poor defendants often find them-
selves being represented by ward leaders, ward committeemen, failed politicians,
the sons of judges and party leaders, and contributors to the judge's election cam-
paigns."
An Alabama judge refused to relieve counsel even when they filed a motion to
be relieved of the appointment because they had inadequate experience in defending
criminal cases and considered themselves incompetent to defend a capital case.
Georgia trial judges have repeatedly refused to appoint or compensate the experi-
enced attorneys who, doing pro bono representation in postconviction stages of
review, had successfully won new trials for clients who had been sentenced to
death. In several of those cases, the Georgia Supreme Court ordered continued
representation at the new trials by the lawyers who were familiar with the case and
the client. Despite those precedents, a Georgia judge refused to appoint an expert
capital litigator from the NAACP Legal Defense and Educational Fund to continue
representation of an indigent defendant, even though the Legal Defense Fund law-
yer had won a new trial for the client by showing in federal habeas corpus pro-
ceedings that he had received ineffective assistance from the lawyer appointed by
the judge at the initial capital trial. And the lower court judges who have been
reversed for failing to allow continuity in representation are still appointing lawyers
when new cases come through the system. Those new defendants have no one to
assist them in securing competent representation.
A newly admitted member of the Georgia bar was surprised to be appointed to
handle the appeal of a capital case on her fifth day of practice in Columbus, Geor-
gia. Two days earlier she had met the judge who appointed her when she accom-
panied her boss to a divorce proceeding. Only after she asked for help was a second
attorney brought onto the case. Another lawyer in that same circuit was appointed
to a capital case, but after submitting his first billing statement to the judge for
approval was told by the judge that he was spending too much time on the case.
He was summarily replaced by another lawyer and the defendant was ultimately
sentenced to death. For a number of years, judges in that circuit appointed a lawyer
to capital cases who did not challenge the underrepresentation of black citizens in
the jury pools for fear of incurring hostility from the community and alienating
potential jurors. As a result, a number of African-Americans were tried by all-white
juries in capital cases even though one-third of the population of the circuit is
African-American.
The many other examples of exceptionally poor legal representation documented
by the American Bar Association (ABA), the National Law Journal, and others
indicate that judges either are intentionally appointing lawyers who are not equal
to the task or are completely inept at securing competent counsel in capital cases.
The reality is that popularly elected judges, confronted by a local community that
is outraged over the murder of a prominent citizen or angered by the facts of a
crime, have little incentive to protect the constitutional rights of the one accused
in such a killing. Many state judges are former prosecutors who won their seats
on the bench by exploiting high-publicity death penalty cases. Some of those judges
have not yet given up the prosecutorial attitude.
United States Congressman William J. Hughes, a former New Jersey prosecutor
and leader on crime issues in the Congress, observed: "With some of the horror
stories we've heard—lawyers who didn't call witnesses, who waived final argu-
ment—it is incredible that the courts allowed these cases to move forward."40 What
is even more incredible is that in most of these instances the judges appointed the
lawyers to the case.
E. The Minimal Standard of Legal Representation Tolerated in

Capital Cases
This sad state of affairs is tolerated in our nation's courts in part because the United
States Supreme Court has said that the Constitution requires no more. Instead of
actually requiring effective representation to fulfill the Sixth Amendment's guar-
antee of counsel, the Court has brought the standard down to the level of ineffective
practice. Stating that "the purpose of the effective assistance guarantee of the Sixth
Amendment is not to improve the quality of legal representation," the Court in
Strickland v. Washington adopted a standard that is "highly deferential" to the
performance of counsel. To prevail on a claim of ineffective assistance of counsel,
a defendant must overcome "a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance," show that the attor-
ney's representation "fell below an objective standard of reasonableness," and
establish "prejudice," which is defined as a reasonable probability that counsel's
errors affected the outcome.41
As Judge Alvin Rubin of the Fifth Circuit concluded:
The Constitution, as interpreted by the courts, does not require that the accused, even
in a capital case, be represented by able or effective counsel.... Consequently, ac-
cused persons who are represented by ' 'not-legally-ineffective" lawyers may be con-
demned to die when the same accused, if represented by effective counsel, would
receive at least the clemency of a life sentence.42
Much less than mediocre assistance passes muster under the Strickland standard.
Errors in judgment and other mistakes may readily be characterized as "strategy"
or "tactics" and thus are beyond review. Indeed, courts employ a lesser standard
for judging the competence of lawyers in a capital case than the standard for
malpractice for doctors, accountants, and architects.
The defense lawyer in one Texas case failed to introduce any evidence about
his client at the penalty phase of the trial. The attorney's entire closing argument
regarding sentencing was: "You are an extremely intelligent jury. You've got that
man's life in your hands. You can take it or not. That's all I have to say."43 A
United States district court granted habeas corpus relief because of the lawyer's
failure to present and argue evidence in mitigation, but the Fifth Circuit, charac-
terizing counsel's nonargument as a "dramatic ploy," found that the attorney's
performance satisfied Strickland. The lawyer was later suspended for other reasons.
The defendant was executed.
Numerous other cases in which executions have been carried out demonstrate
that the minimal standard for attorney competence employed in death penalty cases
provides little protection for most poor persons accused of capital crimes. The case
of John Eldon Smith, the first person executed in Georgia since the death penalty
was restored, is not exceptional. Smith's sentence was upheld and he was killed
despite a constitutional violation because of his lawyer's ignorance of the law,
while his codefendant won a new trial due to the same constitutional violation and
later received a life sentence. The second person executed in Georgia after Smith
was a mentally retarded offender, convicted despite a jury instruction that uncon-
stitutionally shifted the burden of proof on intent; he was denied relief because his
attorney did not preserve the issue for review. The more culpable codefendant was
granted a new trial on the very same issue. Again, as with Smith and Machetti,
switching the lawyers would have reversed the outcomes of the case.
John Young was sentenced to death in the same county as Smith. Young was
represented at his capital trial by an attorney who was dependent on amphetamines
and other drugs which affected his ability to concentrate. At the same time, the
lawyer was physically exhausted, suffering severe emotional strain, and distracted
from his law practice because of marital problems, child custody arrangements,
difficulties in a relationship with a lover, and the pressures of a family business.
As a result, the lawyer made little preparation for Young's trial, where his perfor-
mance was inept. Young was sentenced to death. A few weeks later, Young met
his attorney at the prison yard in the country jail. The lawyer had been sent there
after pleading guilty to state and federal drug charges. Georgia executed John
Young on March 20, 1985.
James Messer was "represented" at trial by an attorney who, at the guilt phase,
gave no opening statement, presented no defense case, conducted cursory cross-
examination, made no objections, and then emphasized the horror of the crime in
some brief closing remarks that could not be fairly described as a "closing argu-
ment."44 Even though severe mental impairment was important to issues of miti-
gation at both the guilt and penalty phases, the lawyer was unable to present any
evidence of it because he failed to make an adequate showing to the judge that he
needed a mental health expert. He also failed to introduce Messer's steady em-
ployment record, military record, church attendance, and cooperation with police.
In closing, the lawyer repeatedly hinted that death was the most appropriate pun-
ishment for his own client. This too was good enough for a capital case in Georgia.
Messer was executed July 28, 1988.
In light of Messer's case, one cannot help but wonder what progress has been
made since the Supreme Court held that there is a right to counsel in capital cases
in Powell v. Alabama. The nine black youths tried in Scottsboro, Alabama, in 1931
for the rapes of two white girls were represented by a lawyer described as "an
able member of the local bar of long and successful experience in the trial of
criminal as well as civil cases" who conducted "rigorous and rigid cross-
examination" of the state's witnesses.45 That is more than James Messer received
at his capital trial.
Another case in which the attorney did nothing was that of Billy Mitchell,
executed by Georgia on September 1, 1987. Following a guilty plea, Mitchell was
sentenced to death at a sentencing hearing at which defense counsel called no
witnesses, presented no mitigating evidence, and made no inquiries into his client's
academic, medical, or psychological history. A great deal of information of this

kind was available and, if presented, could well have reduced the sentence imposed
on Mitchell. In postconviction proceedings, new counsel submitted 170 pages of
affidavits summarizing the testimony of individuals who could have appeared on
Mitchell's behalf. Among them were family members, a city council member, a
former prosecutor, a professional football player, a bank vice president, and several
teachers, coaches, and friends.
The same ineptitude is frequently tolerated on appeal. The brief on direct appeal
to the Alabama Supreme Court in the case of Larry Gene Heath, executed by
Alabama on March 20, 1992, consisted of only one page of argument and cited
only one case, which it distinguished.46 Counsel, who had filed a six-page brief on
the same issue in the Alabama Court of Criminal Appeals, did not appear for oral
argument in the case. Although the United States Court of Appeals later found
counsel's performance deficient for failing to raise issues regarding denial of a
change of venue, denial of sixty-seven challenges for cause of jurors who knew
about the defendant's conviction in a neighboring state arising out of the same
facts, and use of the defendant's assertion of his Fifth Amendment rights against
him, it found no prejudice.
While such incompetence as has been described here passes muster as "effective
assistance of counsel" under the Supreme Court's view of the Sixth Amendment,
counsel's performance often fails to satisfy the increasingly strict procedural doc-
trines developed by the Supreme Court since 1977. Failure of counsel to recognize
and preserve an issue, due to ignorance, neglect, or failure to discover and rely
upon proper grounds or facts, even in the heat of trial, will bar federal review of
that issue. A lawyer whose total knowledge of criminal law is Miranda and Dred
Scott may be "not-legally-ineffective" counsel under Strickland, but such a lawyer
will of course not recognize or preserve many constitutional issues. The result has
been what Justice Thurgood Marshall described as an "increasingly pernicious
visegrip" for the indigent accused: courts refuse to address constitutional violations
because they were not preserved by counsel, but counsel's failure to recognize and
raise those issues is not considered deficient legal assistance.
Together, the lax standard of Strickland and the strict procedural default doc-
trines reward the provision of deficient representation. By assigning the indigent
accused inadequate counsel, the state increases the likelihood of obtaining a con-
viction and death sentence at trial and reduces the scope of review. So long as
counsel's performance passes muster under Strickland, those cases in which the
accused received the poorest legal representation will receive the least scrutiny on
appeal and in postconviction review because of failure of the lawyer to preserve
issues.
In applying Strickland, courts indulge in presumptions and assumptions that
have no relation to the reality of legal representation for the poor, particularly in
capital cases. One scholar has aptly called the idea that bar membership automat-
ically qualifies one to defend a capital case "lethal fiction." The reality is that
most attorneys are not qualified to represent criminal defendants and certainly not
those accused of capital crimes.47
There is no basis for the presumption of competence in capital cases where the
accused is represented by counsel who lacks the training, experience, skill, knowl-
edge, inclination, time, and resources to provide adequate representation in a capital
case. The presumption should be just the opposite—where one or more of these
deficiencies exist, it is reasonable to expect that the lawyer is not capable of ren-
dering effective representation. Indeed, the presumption of competence was adopted
even though the Chief Justice of the Supreme Court, who joined in the majority
in Strickland, had written and lectured about the lack of competence of trial attor-
neys.48
Another premise underlying Strickland is that "[t]he government is not respon-
sible for, and hence not able to prevent, attorney errors." However, the notion of
government innocence is simply not true in cases involving poor people accused
of crimes. The poor person does not choose an attorney; one is assigned by a judge
or some other government official. The government may well be responsible for
attorney errors when it appoints a lawyer who lacks the experience and skill to
handle the case, or when it denies the lawyer the time and resources necessary to
do the job. In addition, as observed by Justice Blackmun:
The county's control over the size of and funding for the public defender's office, as
well as over the number of potential clients, effectively dictates the size of an indi-
vidual attorney's caseload and influences substantially the amount of time the attorney
is able to devote to each case. The public defender's discretion in handling individual
cases—and therefore his ability to provide effective assistance to clients—is circum-
scribed to an extent not experienced by privately retained attorneys.49
The assumption that deficient representation makes no difference, which under-

lies a finding of lack of prejudice under Strickland, is also flawed. In cases where
constitutional violations were not preserved and the defendant was executed while
an identically situated defendant received relief for the same constitutional viola-
tion, it is apparent that the ineptitude of the lawyer did make a difference in the
outcome of the case. In other more subtle but equally determinative ways, com-
petent legal assistance can make a difference in the outcome which may not be
detectable by reviewing courts.
A lawyer may muddle through a case with little or no preparation, but it is
impossible to determine how the case might have been handled differently if he
had investigated and prepared. Other difficulties may be even more difficult to
detect. Rapport with the client and the family may lead to cooperation and the
disclosure of compelling mitigating evidence that might not be found by a less
skillful attorney. Good negotiating skills may bring about a plea offer to resolve
the case with a sentence less than death, and a good relationship with the client
may result in acceptance of an offer that might otherwise be rejected. Nor are re-
viewing courts able to determine after the fact the difference made by other
skills that are often missing in the defense of criminal cases—such as conducting
a good voir dire examination of jurors, effective examination and cross-
examination of witnesses, and presenting well-reasoned and persuasive closing
arguments.
The prejudice standard is particularly inappropriate for application to deficient

representation at the penalty phase of a capital case. It is impossible for reviewing
courts to assess the difference that investigation into mitigating circumstances and
the effective presentation of mitigating evidence might make on a jury's sentencing
decision.
The Supreme Court has consistently reaffirmed that in a capital case any aspect
of the life and background of the accused offered by the defense must be considered
as "mitigating circumstances" in determining punishment. Those who have tried
capital cases have found that the competent presentation of such evidence often
results in sentences less than death. But the right to have any of the "diverse
frailties of humankind" taken into account is meaningless if the accused is not
provided with counsel capable of finding and effectively presenting mitigating cir-
cumstances.
A court-appointed defense lawyer's only reference to his client during the pen-
alty phase of a Georgia capital case was: "You have got a little ole nigger man
over there that doesn't weigh over 135 pounds. He is poor and he is broke. He's
got an appointed lawyer.... He is ignorant. I will venture to say he has an IQ of
not over 80. "50 The defendant was sentenced to death.
Had that lawyer done any investigation into the life and background of his
client, he would have found that his client was not simply "ignorant." Instead,
he was mentally retarded. For that reason, he had been rejected from military
service. And he had been unable to function in school or at any job except the
most repetitive and menial ones. His actual IQ was far from 80; it was 68. He
could not do such basic things as make change or drive an automobile. After his
death sentence was set aside because of failure to grant a change of venue, an
investigation was conducted, these facts were documented, and the defendant re-
ceived a life sentence.
In another case, an attorney, obviously under the influence of alcohol, came to
the Southern Center for Human Rights, in Atlanta, after business hours on a Friday
evening. He was clutching part of a trial transcript and said that he needed help
preparing his brief to the Georgia Supreme Court for the direct appeal of a mentally
retarded man he had represented at trial who had been sentenced to death. The
brief was due the following Monday. Nothing had been written for the appeal. It
was impossible even to assemble the entire record by Monday. Fortunately, an
extension of time was obtained and eventually the case was remanded to the trial
court. New counsel subsequently negotiated a life sentence.
In these and other cases previously discussed in Section I, once the facts were
discovered and brought out, life sentences were obtained for people previously
sentenced to death. But these were cases where by sheer luck the defendants
later received adequate representation on appeal or in postconviction proceedings.
Many of these cases were returned for retrials for reasons having nothing to do
with the poor legal representation at the original trials. But, as shown by the
many cases summarized here in which executions were carried out, many of
those facing the death penalty never receive the representation that would make
such a difference.
III. The Failure to Keep the Promise of Gideon
The right to counsel is essential to protect all other rights of the criminally accused.
Yet this most fundamental right has received the least protection. Nevertheless,
many members of the judiciary and the bar—who have a special responsibility to
uphold the rule of law in the face of public outrage and revulsion—stand by year
after year, case after case, looking the other way, pretending that nothing is amiss,
or calling upon someone else to solve the problem, but never engaging in a con-
certed and effective effort to change the situation. The United States Department
of Justice, the state District Attorneys, and state Attorneys General, all of whom
should have some concern about the fairness and integrity of the judicial process,
use their power and influence to make the situation even worse. As a result, al-
though some solutions to the problem are apparent, the situation continues to de-
teriorate and, tragically, to be increasingly accepted as the inevitable lot of the
poor.
A. Minimal Reforms in Response to Major Crisis

Over ten years ago, the ABA and the National Legal Aid and Defender Association
found the funding for indigent defense inadequate and deemed the promise of
Gideon v. Wainwright unrealized, stating: ' 'we must be willing to put our money
where our mouth is; we must be willing to make the constitutional mandate a
reality."51 However, despite many reports with similar warnings, another ABA
report in 1993 still found that "long-term neglect and underfunding of indigent
defense has created a crisis of extraordinary proportions in many states throughout
the country."52
In Alabama, ten reports over eleven years pointed out the many defects in rep-
resentation of indigent defendants. Judges, court administrators, and the bar have
recommended reform. A commission proposed in 1988 that the limits on attorneys
fees in capital cases be eliminated or raised, but the legislature has done nothing
to change the limit on compensation for out-of-court time expended by attorneys
in capital cases. As a result, and despite repeated acknowledgement of the problem,
the quality of indigent defense in Alabama remains a disgrace.
Limits on compensation have been struck down by courts in a number of states.
However, even as courts have recognized the unreasonableness of the low fees, the
adverse impact of such low fees on the right to counsel and a fair trial, and their
own constitutional duty to do something about it, they have often ordered only
minimal, inadequate reforms.
A challenge to Mississippi's limit of $1000 for compensation to lawyers ap-
pointed to defend capital cases was rejected by the state's supreme court. The court
held that lawyers were entitled to reimbursement for actual costs, including the
overhead cost of operating a law office, so that "the attorney will not actually lose
money," but characterized the $1000 fee as "an 'honorarium' or pure profit."53
One justice published a dissent, which had initially been prepared as the majority
opinion, that carefully analyzed how the statutory limit on compensation adversely
affected the right to counsel and the administration of justice in violation of the
Constitution. However, because that opinion was not supported by a majority of
the court, an attorney appointed to defend a capital case in Mississippi, while no
longer required to lose money, may still make less than the minimum wage.
The Louisiana Supreme Court, considering a capital case in which assigned
counsel was neither compensated nor reimbursed for expenses, held that counsel
were entitled to reimbursement for out-of-pocket and overhead costs, overruling
contrary state precedent, but held that a "fee for service need not be paid" as long
as the time required to defend the case does not reach "unreasonable levels."
The South Carolina Supreme Court struck down that state's statutory limitations
on compensation of appointed counsel in capital cases. The statutes provided for
$15 per hour of in-court time and $10 per hour of out-of-court time for attorneys,
with a limit of $5000 per case for attorneys fees, expert and investigative services,
and costs. Even in doing so, however, the court discussed the fee limitations in the
context of "the legal profession's traditional and historic role in the general society.
It is a role anchored to the postulate that the practice of law is not a marketplace
business or commercial venture but, rather, a profession dedicated primarily to
service." The court accordingly held that "[t]he appointed attorney should not
expect to be compensated at market rate, rather at a reasonable, but lesser rate"
to be fixed in the court's discretion at the conclusion of the trial.
One would hope that such an undesirable assignment as defending a person in
a capital case would be compensated at rates greater than market rates, not less.
In civil rights cases, the undesirability of a case is a factor used to multiply or
enhance an attorneys fee award. For example, prison conditions cases have been
found to be "undesirable" for purposes of determining whether to enhance attor-
neys fees. However, legislatures and courts have simply been unwilling to pay
sufficient rates to attract lawyers to handle capital cases.
There have been few systematic challenges to the inadequacy of legal represen-
tation for the poor, and they have produced only limited results. Some hope of
reforming Georgia's indigent defense system appeared when a federal court of
appeals held that a challenge to deficiencies in the system stated a claim and should
not have been dismissed. However, after a change in the composition of the court,
the case was dismissed on abstention grounds. The federal courts also refused on
abstention grounds to examine Kentucky's limit on attorneys' compensation in
capital cases.
Despite abundant documentation of the enormity of the need for substantive
changes, some continue to suggest that the burden of providing counsel to the
poor—even in capital cases—may be satisfied by the conscription of members of
the legal profession. However, it is the constitutional duty of the state, not of
members of the legal profession, to provide indigent defendants with counsel. Re-
sponses to the problems posed by ineffective assistance of counsel should be con-
ceived in a way that gives effect to this principle. Georgia, a state in which there
have been numerous egregious examples of deficient representation, has no diffi-
culty coining up with local, state, and federal money to prepare for the Olympic
Games, but it does not secure or appropriate funding to assure competent repre-
sentation and equal justice in its courts.
Though it is desirable for more members of the legal profession to shoulder
their ethical obligations to provide legal assistance for the poor, the defense of
capital cases often requires more expertise, commitment, and resources than indi-
vidual lawyers are able to offer. And there are too many cases for the lawyers who
do respond. Moreover, the absence of indigent defense programs limits the oppor-
tunity for young, committed lawyers to enhance their skills and learn to do the job
properly. Beyond these difficulties, even the most conscientious lawyer needs
proper investigative and expert assistance to defend a capital case.
Moreover, to ask for such major sacrifices for such an overwhelming and thank-
less job as defending a capital case from a few members of the profession is
unreasonable. Judges are not presiding without compensation, and district attorneys
are not prosecuting without decent salaries. And most members of the legal pro-
fession—particularly those at the high income law firms which have the litigation
skills and resources equal to the task—are not being asked to share the burden of
defending the poor. The supply of lawyers who are willing to make the sacrifice
has never come close to satisfying the desperate needs of the many poor who face
the death penalty throughout the country today.
Georgia Chief Justice Harold Clarke's description of Georgia's response to the
need for indigent defense applies to most other states as well: "[W]e set our sights
on the embarrassing target of mediocrity. I guess that means about halfway. And
that raises a question. Are we willing to put up with halfway justice? To my way
of thinking, one-half justice must mean one-half injustice, and one-half injustice is
no justice at all."54
B. The Politics of Crime and the Lack of Leadership to

Remedy the Situation
At this time, there appears to be little prospect of achieving even the level of
mediocrity that Chief Justice Clarke described. What is needed to provide com-
petent legal representation to any litigant, rich or poor, is no secret. But significant
improvement in the quality of representation for the poor is unlikely because of
the unpopularity of those accused and the lack of leadership and commitment to
fairness of those entrusted with responsibility for the justice system.
A properly working adversary system will never be achieved unless defender
organizations are established and properly funded to employ lawyers at wages and
benefits equal to what is spent on the prosecution, to retain expert and investigative
assistance, to assign lawyers to capital cases, to recruit and support local lawyers,
and to supervise the performance of counsel defending capital cases. Judges are
not equipped to do this. Management of the defense is not a proper judicial func-
tion. And, as previously described, all too often political and other improper con-
siderations influence elected state court judges in their appointment of lawyers to
defend those facing the death penalty.
What is needed is a system in which defense counsel's loyalty is to the client

and not the judge; and in which defense counsel, as well as the prosecutor, under-
stands the scientific and legal issues in the case and has access to the investigative
and expert assistance needed to prepare and present the case. The ABA has prom-
ulgated standards for the appointment and performance of counsel in capital cases,
which are seldom followed today, but standards mean nothing without capable
attorneys and well-funded defender organizations to implement them.55
Moreover, it must be recognized that defending capital cases is a most unat-
tractive responsibility for most members of the legal profession. With the increasing
number of state and federal capital prosecutions, it will be more and more difficult
to find enough capable lawyers willing to defend the cases. It should be recognized
that, as in other difficult and undesirable areas of practice, a significant financial
incentive, considerably beyond what lawyers receive for far less demanding legal
work, will be required.
Such a system would require a substantial commitment of resources. The ar-
gument has been made that some jurisdictions do not have the money to attract
qualified lawyers and that in some areas, particularly rural areas, qualified counsel
is simply not available.56 But these considerations should not excuse the lack of
adequate legal representation in capital cases. There are communities that have no
pathologists, hair and fiber experts, evidence technicians, and others needed for the
investigation and prosecution of homicide cases. However, when a murder occurs
in those communities and is followed by a capital prosecution, the prosecution
invariably brings in the experts needed and pays what it costs to do so.
There was a time when many localities did not have capable law enforcement
agencies or pathologists, fingerprint examiners, ballistics experts, serologists, and
other forensic scientists needed to investigate and prosecute crime. These deficien-
cies were remedied in most places, often with funding from the Federal Law En-
forcement Assistance Administration as well as state and local governments. Crime
laboratories were built, local police officers were sent to FBI training programs,
and pools of experts were developed who travel around states to investigate crime
scenes and testify in local prosecutions.
These jurisdictions could also establish defender organizations to provide law-
yers with the expertise required to defend capital cases, and the investigators and
expert assistance needed to prepare the defense of these cases. What is lacking is
not money, but the political will to provide adequate counsel for the poor in capital
and other criminal cases. Adequate representation and fairness will never be
achieved as long as it is accepted that states can pay to prosecute a capital case
without paying to defend one. Adequate representation and fairness will never be
achieved until ensuring justice in the courts becomes a priority equal to public
concern for roads, bridges, schools, police protection, sports, and the arts.
But the leadership needed to help bring about justice is missing. There was a
time when the Attorney General of the United States and the attorneys general in
many of the states were concerned not just with getting convictions, but also with
fairness, integrity, and the proper functioning of the adversary system.
In that spirit, Attorneys General Walter F. Mondale of Minnesota and Edward
J. McCormack, Jr., of Massachusetts, and twenty-one of their fellow attorneys

general filed a brief in support of Clarence Earl Gideon's right to counsel in Gideon
v. Wainwright. It was out of that same concern that Attorney General Robert F.
Kennedy helped secure passage of the federal Criminal Justice Act in 1963. But
those days are gone.
Today, the United States Department of Justice, state district attorneys, and state
attorneys general use their power and influence to make this shameful situation
even worse. They take every advantage of the ignorant, incompetent lawyers foisted
upon the poor.57 They have defended in the courts even the most outrageous in-
stances of incompetence on the part of defense counsel previously described and
used the ineptness of counsel as a barrier to prevent courts from addressing con-
stitutional violations in capital cases.
Despite abundant evidence of poor lawyering and egregious constitutional vio-
lations in capital cases, the Justice Department and many prosecutors have proposed
shortcuts and procedural traps to paper over the problems and speed up the process
of sending those sentenced to death at unconstitutional trials to their executions.
In response to findings by federal courts of constitutional violations in state capital
cases, prosecutors have urged stricter enforcement of procedural default rules to
avoid dealing with the violations, not better counsel to avoid those unconstitutional
trials in the first place. Justice James Robertson of the Mississippi Supreme Court
described as "unseemly" the arguments of that state's attorney general that the
court "should hold [the defendant's] claims procedurally barred, not because such
would promote the interests of justice, but rather that such would pull the rug out
from under [him] when he ultimately seeks federal review of his case."58 An
accommodating Supreme Court has been willing to cut back drastically on the
availability of the once great writ of habeas corpus,59 and prosecutors have sup-
ported even more drastic legislative proposals to restrict it further.
Many prosecutors have been unwilling to agree to even the most minor reforms
to improve the quality of legal representation received by the poor. Federal legis-
lation was proposed in 1990 that would have restricted imposition of the procedural
default doctrines unless states improved the quality of defense counsel. One pro-
posal would have required the establishment of an appointing authority for counsel
in capital cases composed either of a statewide defender organization or of a death
penalty resource center. The appointing authority would have been responsible for
securing qualified counsel and engaging in periodic review to ensure the compe-
tence of representation. The legislation would also have set standards for counsel
and required payment for counsel "at a reasonable rate in light of the attorney's
qualifications and experience and the local market for legal representation in cases
reflecting the complexity and responsibility of capital cases."60
This modest proposal evoked vehement opposition from the U.S. Department
of Justice and state prosecutors. William P. Barr, then-Deputy Attorney General
and later Attorney General, characterized the counsel provisions as "an elaborate
and expensive system for appointing counsel" that were "inimical to the principles
of federalism inherent in our constitutional system, and to the need for reasonable
finality of state criminal judgments."61 A letter signed by the attorneys general of
twenty-three states which have the death penalty described the provisions as "so
extreme as to be absurd." The twenty-three attorneys general asserted: "The cur-
rent problems which beset capital cases are not caused by the quality of represen-
tation they receive" and that "the focus in capital cases should be on the guilt or
innocence of the defendant and the sentence he should receive" and not "how
many seminars a defense attorney has attended, how well he is paid, and other
collateral matters."62 The National Association of District Attorneys adopted a
resolution opposing the legislation, reiterating its support for the procedural default
doctrines and "strongly opposing] any legislation" which would "create new
requirements concerning the experience, competency, or performance of counsel"
beyond Strickland v. Washington.63
A bill introduced in 1993 would have required only a "certifying" authority to
identify lawyers to defend capital cases, allowing judges to continue to appoint
counsel and setting only minimal standards measured in terms of years of practice
and number of cases with no inquiry into quality of work. Although representatives
of the state attorneys general and district attorneys associations were involved in
drafting the legislation, which would, in fact, do little to improve the quality of
representation and could even worsen the situation, it was opposed by many pros-
ecutors.64 One letter circulated among Senators criticized its "expansive and costly
appointment of counsel provisions" and quoted the Attorney General of Georgia
as saying that, if enacted, the bill would "effectively repeal the death penalty."
Such hyperbolic statements have repeatedly greeted other efforts to improve the
quality of legal representation in capital cases. When the Georgia legislature, after
years of refusing to appropriate any funds for indigent defense, finally responded
grudgingly to the eloquent appeals of the chief justice of the state's supreme court
by creating in 1992 a small capital defender program that employed only four
attorneys, one district attorney criticized it as a step toward abolishing the death
penalty in Georgia. When a report to the Texas Bar described the serious deficien-
cies of the representation in capital cases in that state, the district attorney in Hous-
ton dismissed it as an argument against the death penalty.
The enthusiasm of prosecutors to continue to take every advantage has not been
tempered by the poverty and powerlessness of those accused of capital crimes. Nor
has the situation motivated a new presidential administration or a new Attorney
General to rein in the assaults on the Bill of Rights and habeas corpus or question
the power that state courts should be allowed to exercise over the lives of persons
who are not provided adequate representation. Instead, the country is engaged in a
crime debate in which politicians try to outdo one another in proposing crime bills
which simultaneously expand the use of the death penalty and other severe penalties
while restricting or eliminating procedural protections. Those who are supposedly
leaders dismiss the Bill of Rights as a mere collection of technicalities. The debate
is exceptionally one-sided. For, as Robert F. Kennedy said long ago, the poor
person accused of a crime has no lobby. No member of Congress or a state leg-
islature is likely to receive complaints about the quality of counsel for poor people
accused of crimes. But lost in the effort to get tough on crime is concern about
the fairness and integrity of the criminal justice system.
Completely missing from the crime debate and from the courts is the notion
that if it is too expensive or impractical for some jurisdictions to provide competent
counsel and the fairness and reliability that should accompany a judicial decision
to take a human life, their power should be limited. If a local trial court cannot
comply with the most fundamental safeguard of the Constitution by providing a
capable attorney to one whose life is at stake, it should not be authorized to extin-
guish life. The solution is not to depreciate human life and the Bill of Rights by
accepting what is available. Many small communities do not have surgeons, yet
they do not rely on chiropractors to perform heart surgery.
Pronouncements about the importance of and the need for counsel do not make
quality representation a reality. It has become apparent that the legislatures of most
states, particularly those where the death penalty is frequently imposed, are not
going to discharge their constitutional duty to appropriate funds and provide com-
petent legal assistance for poor persons in criminal cases. It is also unlikely that
the judiciary and bar, after years of neglect, punctuated by occasional moments of
hand wringing, will respond effectively to this worsening situation.
IV. The Need for Individual Responses and Limits on the

Power of the Courts
The quality of legal representation in capital cases in many states is a scandal.

However, almost no one cares. Those facing the death penalty are generally poor,
often members of racial minorities, often afflicted with substantial mental impair-
ments, and always accused of serious, terrible crimes. The crimes of which they
are accused bring out anger, hatred, and a quest for vengeance on the part of most
people, including judges, prosecutors, and, quite often, even those appointed to
represent the accused. All of this leads to, at best, indifference and, more often,
hostility toward the plight of those accused. And many outside the criminal justice
system are indifferent because they are unaware of what passes for justice in the
courts. There is a growing cynicism about the importance of due process and the
protections of the Bill of Rights. Many of those who hold or aspire to public office
find it impossible to resist the temptation to resort to demagoguery to exploit these
sentiments.
But this reality does not excuse the constitutional responsibility of the judiciary
and members of the legal profession to ensure that even the most despised defen-
dants still receive the highest quality legal representation in proceedings that will
determine whether they live or die. Justice William Brennan, with his usual elo-
quence, once observed in another context,
It is tempting to pretend that [those] 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.... [T]he way in which we choose those who will
die reveals the depth of moral commitment among the living.65
Unfortunately, what has been revealed about the depth of moral commitment
among legislators, members of the bar, and the judiciary is very discouraging. It
is unlikely that the promise of Powell and Gideon will ever be fulfilled for most
of those accused of criminal violations. Legislatures are unwilling to pay the price
for adequate representation, most courts are unwilling to order it, and most mem-
bers of the bar are unwilling or unable to take on the awesome responsibility of
providing a vigorous defense without adequate compensation.
The best hope for most of those facing the death penalty is that capable lawyers
will volunteer to take their cases and provide proper representation regardless of
whether they are paid adequately or at all. A member of the New York Court of
Appeals, citing the ethical obligation of lawyers to recognize deficiencies in the
legal system and initiate corrective measures, has urged lawyers to respond to the
challenge of seeing that those who face the worst penalty receive the best repre-
sentation.
During the civil rights movement of the fifties and especially the sixties, inspired
attorneys, not all young neophytes, travelled often at great personal expense and real
risk, including their own deaths, to make a difference. That spirit needs to be revived.
Right now, it fuels only a few who are to be commended for what they are trying to
do, but it has not motivated a sufficient number of people in our profession to do
their needed parts, too. Until that conversion comes about, Lady Justice may as well
keep her eyes blindfolded so as not to notice with shame the grotesque imbalance in
the scales of justice that hang from her fingertips, because of the growing numbers
of death penalty cases in this great country that are finally, really finally, resolved
under such disproportionate odds and resources.66
Such spirit and commitment are desperately needed. When achieved, they will
undoubtedly make a difference for those persons represented. Indeed it is hard to
imagine how a member of the legal profession could make a greater difference
than by saving a client from execution. But the response of individual lawyers will
not be nearly enough to end the systemic problems previously described and pro-
vide adequate representation to the thousands of people facing the death penalty
in this country.
Lawyers must not only respond, but in doing so they must litigate aggressively
the right to adequate compensation, to the funds necessary to investigate, and for
the experts needed to prepare and present a defense. Lawyers must also bring
systemic challenges to indigent defense systems. Attorneys for the poor—whether
in assigned counsel, contract, or public defender systems—must refuse unreason-
able caseloads and insist upon the training and resources to do the job right. Where
these problems make it impossible for attorneys to discharge their constitutional
and ethical obligations, attorneys should frankly declare their inability to render
effective assistance.
And lawyers must continue to bear witness to the shameful injustices which are
all too routine in capital cases. The uninformed and the indifferent must be educated
and reminded of what is passing for justice in the courts. The substandard quality
of counsel for the poor and the lack of a structure and funding for indigent defense
must become part of the debate on crime. The state and federal legislatures should
not continue to enact capital crimes without considering the costs of adequate
representation for the defendant and, even if the costs are met, whether there is
anyone to defend those accused. Lawyers and law students need to be reminded
that there continue to be people with desperate, unmet needs for competent rep-
resentation.67 They need to be informed that the protections of the Bill of Rights
are often denied those most in need of them—poor, minority, and disadvantaged
persons facing the death penalty. The danger of silence is not only that lawyers
will be unaware of the need, but also that many in society will mistakenly assume
that there is a properly working adversary system in the criminal courts.
It is only by the witness of those who observe the injustices in capital cases
firsthand that others in society can be accurately informed. This knowledge may
prompt questions about the system and its limits such as: whether the quest for
vengeance receives too high a priority over the pursuit of justice in the courts;
whether criminal courts should be allowed to dispatch people to their deaths with-
out providing capable lawyers or even one penny for the investigators and experts
necessary to present evidence that is constitutionally indispensable to the punish-
ment decision; whether indigent and often mentally limited persons accused of
crimes should continue to be denied the protections of the Bill of Rights under the
procedural default doctrines because of the ineptness of lawyers they had no voice
in choosing; whether the assignment of lawyers to defend the poor should be made
by judges who must keep one eye on the next election and, with the other, often
wink at the Constitution; and whether courts should continue to demean the Sixth
Amendment by employing the Strickland v. Washington standard for "legally ef-
fective counsel."
These questions must be raised vigorously until courts and leaders of the bar
realize that the judgments of the criminal courts cannot be seen as legitimate and
entitled to respect so long as such poor quality of representation is tolerated. It is
only by dealing squarely with these questions that there is hope that the courts will
face reality and deliver on the promise of Powell and Gideon instead of indulging
in wishful thinking and hollow pronouncements about the right to counsel. One
must hope that a frank discussion of the deficiencies of the system will prompt
courts to take their eyes off the embarrassing target of mediocrity and take aim at
a full measure of justice for all citizens, especially those whose lives and freedom
hang in the balance. One must also hope that some prosecutors, who recognize a
higher calling in seeing that justice is done and making the adversary system work
than in simply getting convictions and death sentences against inept lawyers, will
add their voices regarding the need for adequate representation and limits on the
power of the courts. And finally, some law schools must respond and prepare
students better for defending criminal cases.
The Louisiana Supreme Court recently faced reality and created a presumption
of incompetence of counsel where provision of indigent defense services are so
lacking that defendants are not likely to be receiving effective representation. Un-
less the state is able to rebut the presumption at a pretrial hearing, a trial court is
not to let the prosecution go forward until the defendant is provided with reasonably
effective counsel. This approach responds much better to the reality of represen-
tation for indigents than Strickland. Nevertheless, Justice Dennis pointed out that
the court could have done more:
This court should establish standards by setting limits on the number of cases handled
by indigent defense attorneys, by requiring a minimum number of investigators to be
assigned to each [public] defender, and by requiring specified support resources for
each attorney. If a defendant demonstrates further error due to funding and resource
deficiencies, the courts should be instructed to view the harm as state-imposed error,
which would require reversal of the conviction unless the state demonstrates that the
error was harmless.68
If systemic reforms are not attainable, other state courts could follow the ex-
ample of the Louisiana Supreme Court and prohibit the prosecution from going
forward in the absence of competent counsel. In addition, as long as trial judges
remain in the business of appointing defense counsel, conscientious judges who
are concerned about fairness can order the appointment of experienced, competent
lawyers, and just compensation at enhanced rates for those lawyers. Trial judges
could obtain the services of the best members of the profession, those equal to the
task of handling the highest stakes in our legal system, but whose time generally
is spent in more lucrative pursuits. The appointment of the top litigators, managing
partners, and bar leaders from firms in Atlanta, Birmingham, Jackson, New Orleans,
Philadelphia, Houston, and Dallas to defend capital cases would undoubtedly
change the quality of indigent defense representation in those areas. It is remarkable
that courts do not call upon those lawyers to respond to the need. In addition to
introducing litigation skills to the cases, the involvement of such lawyers might
also result in some of them bringing their considerable power and influence to bear
upon the systemic problems, if for no other reason than to avoid future appoint-
ments.
Such efforts, while urgently needed, will assure competent representation to only
a small percentage of those facing death and, at best, may prompt reforms that will
take years to accomplish. In the meantime, many will continue to be sentenced to
death at trials where they will receive only perfunctory representation by lawyers
who are not equal to the task of defending a capital case and are denied the re-
sources to do the job properly. It is those poor people who will suffer the conse-
quences of the failure of the legislatures and the judiciary to discharge their
constitutional responsibilities.
The death penalty will continue to be imposed and new capital statutes enacted
with the continuing promise that efforts will be made to improve the quality of
counsel in the future. But this is surely backwards. A very high quality of counsel—
instead of minimal representation—should not only be the goal, but the reality
before a jurisdiction is authorized to take life. Moreover, the promise of adequate
counsel is continually broken. It has been over sixty years since the Supreme Court
held in Powell v. Alabama that those accused in Scottsboro and all poor people
were entitled to a higher level of representation in capital cases than merely being
accompanied to thek trials by a member of the bar. Yet the representation in many
trials today is no better than that provided to the accused in Scottsboro in 1931.
This longstanding lack of commitment to counsel for the poor is one of the many
reasons that the effort to achieve fairness and consistency in the administration of
the death penalty is "doomed to failure."69
V. Conclusion
Courts have issued many pronouncements about the importance of the guiding hand
of counsel, but they have failed to acknowledge that most state governments are
unwilling to pay for an adequate defense for the poor person accused of a crime.
Unfortunately, the Supreme Court has not been vigilant in enforcing the promise
of Powell and Gideon. Its acceptance of the current quality of representation in
capital cases as inevitable or even acceptable demeans the Sixth Amendment. It
undermines the legitimacy of the criminal courts and the respect due their judg-
ments. No poor person accused of any crime should receive the sort of represen-
tation that is found acceptable in the criminal courts of this nation today, but it is
particularly indefensible in cases where life is at stake. Even one of the examples
of deficient representation described in this Essay is one more than should have
occurred in a system of true justice.
Providing the best quality representation to persons facing loss of life or im-
prisonment should be the highest priority of legislatures, the judiciary, and the bar.
However, the reality is that it is not. So long as the substandard representation that
is seen today is tolerated in the criminal courts, at the very least, this lack of
commitment to equal justice should be acknowledged and the power of courts
should be limited. So long as juries and judges are deprived of critical information
and the Bill of Rights is ignored in the most emotionally and politically charged
cases due to deficient legal representation, the courts should not be authorized to
impose the extreme and irrevocable penalty of death. Otherwise, the death penalty
will continue to be imposed, not upon those who commit the worst crimes, but
upon those who have the misfortune to be assigned the worst lawyers.
Notes
1. Record at 846-49, State v. Haney, No. 7 Div. 148 (Ala. Crim. App. 1989).
2. Nevertheless, both the Alabama Court of Criminal Appeals, Haney v. State, 603 So.
2d 368 (Ala. Crim. App. 1991), and the Alabama Supreme Court, Ex pane Haney, 603 So.
2d 412 (Ala. 1992), upheld the conviction and death sentence in the case.
3. The defendant's other court-appointed lawyer was later disciplined by the Alabama
Bar for neglect in two worker's compensation cases, allowing the statute of limitations to
run in both cases. Disciplinary Report, ALA. LAW., Nov. 1993, at 401.
4. Anthony Lewis, GIDEON'S TRUMPET 205 (1964).
5. This Essay deals primarily with the problem at trial and on direct appeal where the
state is required to provide counsel for the indigent accused. It does not analyze the equally
serious crisis regarding lack of representation and inadequate representation in postconvic-
tion review. For such a review, see American Bar Ass'n, Toward a More Just and Effective
System of Review in State Death Penalty Cases, 40 AM. U. L. REV, 1, 79-92 (1990). The
Supreme Court has held there is no right to counsel, even in capital cases in postconviction
review. Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion).
6. Peter Applebome, Two Electric Jolts in Alabama Execution. N.Y. TIMES, July 15,
1989, at A6.
7. Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S.
538, 545 (1987) (O'Connor, J., concurring)).
8. David Lundy, Bondurant's Costly Death Appeal, FULTON COUNTY DAILY REP., Aug.
18, 1989, at 6.
9. Gordon Dickinson, Man Freed in Machete Murder Case, EL PASO TIMES, June 24,
1993, at 1.
10. Tracy Thompson, Once "Unfit To Live," Ex-Death-Row Inmates Winning Parole,
ATLANTA CONST. Mar. 12, 1987, at Al.
11. Habeas Corpus Reform: Hearings Before the Comm. on the Judiciary, 101st Cong.,
1st & 2d Sess. 349 (1989-90) (statement of Justice James Robertson of the Supreme Court
of Mississippi).
12. Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980) (quoting Gregg v. Georgia, 428
U.S. 153, 188 (1976) (quoting Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J.,
concurring))).
13. American Bar Ass'n, supra note 5, at 16. The ABA's report illustrates the perva-
siveness of the problem:
Georgia's recent experience with capital punishment has been marred by examples of inadequate
representation ranging from virtually no representation at all by counsel, to representation by
inexperienced counsel, to failures to investigate basic threshold questions, to lack of knowledge
of governing law, to lack of advocacy on the issue of guilt, to failure to present a case for life
at the penalty phase....
... Defense representation is not necessarily better in other death penalty states. In Tennes-
see, for another example, defense lawyers offered no evidence in mitigation in approximately
one-quarter of all death sentences affirmed by the Tennessee Supreme Court since the Tennessee
legislature promulgated its current death penalty statute.
Id. at 65-67....
14. Thurgood Marshall, Remarks on the Death Penalty Made at the Judicial Conference
of the Second Circuit, 86 COLUM. L. REV. 1, 1-2 (1986). Justice Marshall noted that "[t]he
federal reports are filled with stories of counsel who presented no evidence in mitigation of
their clients' sentences because they did not know what to offer or how to offer it, or had
not read the state's sentencing statute." Id.
15. Marcia Coyle et al., Fatal Defense: Trial and Error in the Nation's Death Belt, NAT.
L.J., June 11, 1990, at 30. Twelve articles examining the quality of representation in nu-
merous cases in the six states appear in Id. at 30-44.
16. A lawyer in one Georgia case conceded his client's guilt and argued for a life
sentence at the guilt phase; he continued to plead for mercy even after he was admonished
by the trial judge to save his argument on punishment for the sentencing phase. Young v.
Zant, 677 F.2d 792, 797 (llth Cir. 1982). A judge in a Florida case took a defense lawyer
in chambers during the penalty phase to explain what it was about. The lawyer responded:
'I'm at a loss. I really don't know what to do in this type of proceeding. If I'd been through
one, I would, but I've never handled one except this time." Douglas v. Wainwright, 714
F.2d 1532, 1556 (llth Cir. 1983), vacated and remanded, 468 U.S. 1206 (1984), on remand,
739 F.2d 531 (llth Cir. 1984), and cert, denied, 469 U.S. 1208 (1985). An Alabama defense
lawyer asked for time between the guilt and penalty phases so that he could read the state's
death penalty statute. Record at 1875-76, State v. Smith, 581 So. 2d 497 (Ala. Crim. App.
1990). The lawyer in a Pennsylvania case tailored his presentation of evidence and argument
around a death penalty statute that had been declared unconstitutional three years earlier
because it limited the arguments on which the defense could rely as to mitigating circum-
stances. Frey v. Fulcomer, 974 F.2d 348, 359 (3d Cir. 1992) (reversing finding of ineffective
assistance of counsel).
17. In one Alabama case, one defense lawyer sued co-counsel over attorneys fees before
trial and the attorneys were in conflict over personal differences during trial. Daniel v.
Thigpen, 742 F. Supp. 1535, 1558-59 (M.D. Ala. 1990); Friedman & Stevenson. Ruth E.
Friedman and Bryan A. Stevenson, Solving Alabama's Capital Defense Problems: It's a
Dollars and Sense Thing, 44 Ala. L. Rev. 1 (1992), at 34. In a Georgia case, one attorney
presented an incredible alibi defense while the other asserted a mental health defense that
acknowledged the accused's participation in the crime. Ross v. Kemp, 393 S.E.2d 244, 245
(Ga. 1990).
18. Goodwin v. Balkcom, 684 F.2d 794, 805 n.13 (llth Cir. 1982) (defendant called a
"little old nigger boy" in closing argument by defense counsel); Ex pane Guzmon, 730
S.W.2d 724, 736 (Tex. Crim. App. 1987) (Mexican client referred to as "wet back" in front
of all-white jury by defense counsel); Record Excerpts at 102, Dungee v. Kemp, No. 85-
8202 (llth Cir.) (defendant called "nigger" by defense counsel), decided sub nom. Isaacs
v. Kemp, 778 F.2d 1482 (llth Cir. 1985), cert, denied, 476 U.S. 1164 (1986).
19. House v. Balkcom, 725 F.2d 608, 612 (llth Cir. 1984), cert, denied, 469 U.S. 870
(1984).
20. A judge in Harris County, Texas, responding to a capital defendant's complaints
about his lawyer sleeping during the trial at which death was imposed, stated: "The Con-
stitution does not say that the lawyer has to be awake." John Makeig, Asleep on the Job;
Slaying Trial Boring, Lawyer Said, Hous. CHRON., Aug. 14, 1992, at A35. Defense counsel
was found to have slept during a capital trial in Harrison v. Zant, No. 88-V-1640. Order at
2 (Super. Ct. Butts County, Ga. Oct. 5, 1990), aff'd, 402 S.E.2d 518 (Ga. 1991).
21. People v. Garrison, 254 Cal. Rptr. 257 (1986). Counsel, an alcoholic, was arrested
en route to court one morning and found to have a blood alcohol level of 0.27. Yet the
court was unwilling to create a presumption against the competence of attorneys under the
influence of alcohol.
22. In Texas, which has the second largest death row in the nation and has carried out
more executions than any other state, the accused is given only one lawyer in many cases.
The Spangenberg Group, A STUDY OF REPRESENTATION IN CAPITAL CASES IN TEXAS 156,
157 (1993) (prepared for the State Bar of Texas). In Philadelphia, where the number of
people sentenced to death is greater than the combined death rows of 21 of the 36 states
which have the death penalty, a capital case is often defended by a single attorney. See
Michael DeCourcy Hinds, Circumstances in Philadelphia Consign Killers, N.Y. TIMES, June
8, 1992, at Kl; Frederic N. Tulsky, What Price Justice? Poor Defendants Pay the Cost as
Courts Save on Murder Trials, PHILA. INQUIRER, Sept. 13, 1992, at A18.
23. Frederick N. Tulsky, What Price Justice? Poor Defendants Pay the Cost as Courts
Save on Murder Trials, Phila. Inquirer, Sept. 13, 1992, at A18.
24. A survey of lawyers and judges in Texas found that approximately one-half of the
attorneys who had handled a capital case and 33% of judges who had recently presided over
a capital case indicated that resources were inadequate to pay expert witnesses and attorneys.
The Spangenberg Group, supra note 60, at 159; see, e.g., Jeff Rosenzweig, The Crisis in
Indigent Defense: An Arkansas Commentary, 44 ARK. L. REV. 409, 410 (1991) (describing
the dilemma of an Arkansas attorney in a capital case who needed a psychiatrist to examine
a defendant who had previously been diagnosed as schizophrenic; the lawyer was first told
by the judge to find a mental health expert closer to home and then denied funds after he
located a local psychologist).
25. State v. Walker, No. 89 CR 56742-2 (Super. Ct. Muscogee County, Ga. 1991), rev'd
on other grounds, 424 S.E.2d 782 (Ga. 1993).
26. Deposition of Richard Bell at 24-25, Grayson v. State (Cir. Ct. Shelby County, Ala.
Oct. 10, 1991) (No. CV 86-193).
27. Id. at 62-63.
28. Rosenzweig, supra note 24, at 412.
29. Morgan v. Zant, 743 F.2d 775, 780 (llth Cir. 1984).
30. Only 11 of the 36 states which have the death penalty have statewide public defender
programs. The Spangenberg Group, supra note 22, at 122, 125. Some of those state public
defender programs have specialized full-time capital litigation groups that provide represen-
tation in capital cases at trial. Id. Two of those states, New Hampshire and Wyoming, have
no one under death sentence. Id. at 119; NAACP Legal Defense & Educational Fund, DEATH
Row USA 1 (Winter 1993). Eight of the states with statewide defense programs have death
rows that are comparatively small: Connecticut (5); Delaware (16); Maryland (14); New
Jersey (9); New Mexico (1). Id. at 17, 27, 25, 38, 29. This leaves two states with large
death row populations, Ohio (127) and Missouri (83), with statewide programs and capital
litigation sections. Id. at 26, 29; The Spangenberg Group, supra note 22, at 122. Florida and
California, which have two of the country's three largest death rows, have public defender
programs, but many capital cases in those states are handled by assigned counsel outside of
the public defender system. Florida has an elected public defender in each judicial circuit.
Id. at 122-23. California has county public defender agencies in all of its major counties.
Id. at 123. Even though these programs cannot handle the huge volume of capital cases in
those states, they have annual training programs and provide materials which improve the
quality of representation in those states. No similar programs exist in Texas or many other
states with large death row populations.
31. Id. at 680. A contract arrangement in one Georgia county required that the attorney
pay any investigative and expert expenses out of the $4265 he was to be paid that year for
representing all of the county's indigent defendants. Not surprisingly, often not one penny
is spent on either investigative or expert assistance in an entire year in some Georgia coun-
ties.
32. Trisha Renaud & Ann Woolner, Meet Em and Plead Em: Slaughterhouse Justice in
Fulton's Decaying Indigent Defense System, FULTON COUNTY DAILY REP., Oct. 8, 1990,
at 1.
33. State v. Peart, 621 So. 2d 780, 790 (La. 1993).
34. State v. Peart, 621 So. 2d 780, 789 (La. 1993). A study of the system found that
there is a "desperate need to double the budget for indigent defense in Louisiana in the
next two years." Id. (quoting The Spangenberg Group, STUDY OF THE INDIGENT DEFENDER
SYSTEM IN LOUISIANA 50 (1992)).
35. Hal Strauss, Indigent Legal Defense Called "Terrible," ATLANTA J.-CoNST., July
7, 1985, at 12A.
36. Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).
37. Makemson v. Martin County, 491 So. 2d 1109, 1114-15 (Fla. 1986), cert, denied,
479 U.S. 1043 (1987) (quoting MacKenzie v. Hillsborough County, 288 So. 2d 200, 202
(Fla. 1973) (Ervin, J., dissenting)).
38. The Spangenberg Group, supra note 22, at 157.

39. Frederic N. Tulsky, Big-Time Trials, Small Time Defenses, PHILADELPHIA INQ., Sept.
14, 1992, at A8.
40. Marcia Coyle et al., Washington Brief: High Noon for Congressional Habeas, NAT.
L.J., July 9, 1990, at 5.
41. 466 U.S. 668, 694 (1984).
42. Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin, J., concurring).
43. Romero v. Lynaugh, 884 F.2d 871, 875 (5th Cir. 1989).
44. Messer v. Kemp, 474 U.S. 1008, 1090 (1986) (Marshall, J., dissenting from denial
of certiorari).
45. Powell v. Alabama, 287 U.S. 45, 75 (1932) (Butler, J., dissenting) (quoting decision
of Alabama Supreme Court).
46. What follows is the brief in its entirety. The only parts of the brief not set out below
are the cover page and certificate of service:
THE RECORD AFFIRMATIVELY SHOWS THAT THE APPELLANT WAS CONVICTED

OF THE SAME OFFENSE, WHICH IS PRECISELY THE SAME IN LAW AND FACT IN
VIOLATION OF THE 5th AMENDMENT OF THE UNITED STATES CONSTITUTION.
47. Bruce A. Green, Lethal Fiction: The Meaning of "Counsel" in the Sixth Amendment,
78 IOWA L. REV. 433, 454 (1993).
48. See, e.g., Warren E. Burger, Remarks on Trial Advocacy: A Proposition, 1 WASH-
BURN L.J. 15 (1967); Warren E. Burger, The Special Skills of Advocacy: Are Specialized
Training and Certification of Advocates Essential to Our System of Justice, 42 FORDHAM
L. REV. 227 (1973).
49. Polk County v. Dodson, 454 U.S. 312, 332 (1981) (Blackman, J., dissenting).
50. Transcript of Opening and Closing Arguments at 39, State v. Dungee, Record Ex-
cerpts at 102. (llth Cir.) (No. 85-8202), decided sub nom. Isaacs v. Kemp, 778 F.2d 1482
(llth Cir. 1985), cert, denied, 476 U.S. 1164 (1986).
51. American Bar Ass'n & the Nat'l Legal Aid & Defender Ass'n, GIDEON UNDONE!
THE CRISIS OF INDIGENT DEFENSE FUNDING 3 (1982).
52. Many of the reports are summarized in Richard Klein & Robert Spangenberg, THE
INDIGENT DEFENSE CRISIS 5 (1993) (prepared for the American Bar Association Section of
Criminal Justice Ad Hoc Committee on the Indigent Defense Crisis), at 10; Richard Klein,
The Eleventh Commandment: Thou Shalt Not Be Compelled to Render the Ineffective As-
sistance of Counsel, 68 IND. LJ. 363, 393 (1993).
53. Wilson v. State, 574 So. 2d 1338, 1341 (Miss. 1990).
54. Chief Justice Harold G. Clarke, Annual State of the Judiciary Address, reprinted in
FULTON COUNTY DAILY REP., Jan. 14, 1993, at 5.
55. Standards for the appointment of counsel, which are defined in terms of number of
years in practice and number of trials, do very little to improve the quality of representation
since many of the worst lawyers are those who have long taken criminal appointments and
would meet the qualifications. Such standards can actually be counterproductive because
they may provide a basis for denying appointment to some of the most gifted and committed
lawyers who lack the number of prior trials but would do a far better job in providing
representation than the usual court-appointed hacks with years of experience providing de-
ficient representation.
56. See, e.g., Report of Malcolm Lucas to ABA Task Force Report on the Death Penalty,
40 AM. U. L. REV. 195, 197 (1990). The expense of providing more qualified counsel is
repeatedly argued as a reason to defeat legislation aimed at improving representation in

capital cases.
57. At the urging of prosecutors, the federal courts and many state courts have increas-
ingly refused to consider constitutional issues even where the failure to raise them was the
result of ignorance, neglect, or inadvertent failure to raise and preserve an issue by a court-
appointed lawyer. Coleman v. Thompson, 111 S. Ct. 2546 (1991) ("[A]ttorney ignorance
or inadvertence is not 'cause' " to excuse filing of notice of appeal three days late, as
indigent prisoner "must bear the risk of attorney error") (quotation omitted); Dugger v.
Adams, 489 U.S. 401, 406-8 (1989) (barring relief because trial lawyer did not object to
jury instructions even though court of appeals had unanimously concluded that death penalty
was unconstitutionally imposed due to those instructions); Smith v. Murray, 477 U.S. 527,
539 (1986) (Stevens, J., dissenting) (barring issue not properly raised on appeal even though
"[t]he record . . . unquestionably demonstrates that petitioner's constitutional claim is mer-
itorious, and that there is a significant risk that he will be put to death because his consti-
tutional rights were violated"); Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that
attorney "ignorance or inadvertence" does not constitute cause to excuse failure to raise
Fourteenth Amendment claim in earlier proceeding). Three of these cases—all except Mur-
ray v. Carrier—were capital cases. In each of those cases, the defendant has been executed
without a determination of the constitutional issue because of the attorney error.
As a result of the complexity of the procedural rules and the lack of familiarity with
them by many of the lawyers appointed to defend the poor, executions are now routinely
carried out without review by any court of significant constitutional issues because of errors
by counsel. See, e.g., Whitley v. Bair, 802 F.2d 1487, 1496 n. 17 (4th Cir. 1986) (finding
that all 15 issues raised on behalf of Whitley were barred because they had not been properly
raised by his trial lawyer), cert, denied, 480 U.S. 951 (1987). Today, it is unusual to see a
capital case in which one or more issues presented in federal habeas corpus review is not
found to be procedurally barred.
58. Evans v. State, 441 So. 2d 520, 531 (Miss. 1983) (Robertson, J., dissenting), cert,
denied, 467 U.S. 1264 (1984); see also Hill v. State, 432 So. 2d 427, 444-51 (Miss. 1983)
(Robertson, J., dissenting).
59. Justice Stevens has expressed the view that the Supreme Court has "grossly mis-
evaluate[d] the requirements of 'law and justice' that are the federal court's statutory mission
under the federal habeas corpus statute" and instead "lost its way in a procedural maze of
its own creation." Smith v. Murray, 477 U.S. 527, 541 (1986) (Stevens, J., dissenting).
Justice Blackmun, writing for four members of the Court in Dugger v. Adams, accused the
majority of "arbitrarily imposing] procedural obstacles to thwart the vindication of what
apparently is a meritorious Eighth Amendment claim." Dugger v. Adams, 489 U.S. 401,
412-13 (1989)....
60. H.R. 4737, § 8(e)-(g)(1990), reprinted in Hearings Before Subcomm. on Courts,
Intellectual Property and the Administration of Justice of the House Judiciary Comm. on
H.R. 4737, H.R. 1090, H.R. 1953, and H.R. 3584, 101st Cong., 2d Sess. 3, 11 (1990), at
14-16; see also H.R. 5269, § 1307(e)-(g) (1990), House Hearings, supra at 486-91.
61. Detailed Comments on H.R. 5269 Submitted with Letter from William P. Barr to
Thomas S. Foley, Speaker of the U.S. House of Representatives (Sept. 10, 1990), reprinted
in House Hearings, supra note 60, at 723, 746-47.
62. Letter from Don Siegelman, Attorney General of Alabama et al., to Jack Brooks,
Chairman of the House Judiciary Committee (July 13, 1990), reprinted in House Hearings,
supra note 60, at 654, 656.
63. Resolution Opposing Habeas Reform Legislation, reprinted in House Hearings, su-
pra note 60, at 649.
64. California Attorney General Daniel E. Lungren asserted that the bill "could appro-
priately be called the 'Capital Defense Attorney Employment Act of 1993' " and urged its
defeat because it would * 'raise the overall cost of capital litigation by imposing new federal
standards" and result in additional litigation. Letter from Daniel E. Lungren to Senator Diane
Feinstein (Aug. 13, 1993) at 15 (on file with author)
65. McCleskey v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, J., dissenting).
66. Joseph W. Bellacosa, Ethical Impulses from the Death Penalty: "Old Sparky V Jolt
to the Legal Profession 29 (Dyson Distinguished Lecture, Oct. 26, 1993) (unpublished man-
uscript, on file with the Pace University School of Law).
67. See, e.g., Stephen B. Bright, In Defense of Life: Enforcing the Bill of Rights on
Behalf of Poor, Minority and Disadvantaged Persons Facing the Death Penalty, 57 Mo. L.
REV. 849 (1992).
68. State v. Peart, 621 So. 2d 780 (La. 1993) at 795 (Dennis, J., dissenting)
69. Callins v. Collins, 62 U.S.L.W. 3546 (U.S. Feb. 22, 1994) (No. 93-7054) (Blackmun,
J., dissenting from denial of certiorari).
PART VI
Controversies from Prosecution

to Execution
The complex interaction of public attitudes and values, statutory and case law, plus
a wide variety of empirical facts and hypotheses, has given rise to numerous con-
troversies over the current administration of the death penalty. Especially during
the past decade, as the number of persons on the nation's death rows has steadily
increased, tensions have been felt throughout the system at every crucial decision
point: among them the prosecutor's decision to seek the death penalty, the jury's
decision to sentence, and the chief executive's decision to consider clemency. Con-
troversy also surrounds possible reforms and revisions in the current system. From
among many that ought to be at least briefly mentioned, here are five.
Availability of Defense Counsel for Death Row Inmates
At least since the infamous Scottsboro Boys capital trial in Alabama in 1931, in
which the rape convictions and death sentences of the innocent defendants were
overturned because of the failure of the state to provide adequate defense counsel,1
critics of the death penalty (such as Stephen Bright, in Chapter 22) have pointed
out how difficult it is to get competent counsel—indeed, any counsel—for indigent
death penalty defendants. A decade after Gregg, with 1,800 persons on death row,
complaints were already being heard about how the capital defense bar was
stretched thin. "Many lawyers who used to take such cases are shunning them
now, discouraged by the enormous financial and emotional cost of pressing such
cases...." (Reinhold 1986).2 In 1990, responding to the growing crisis, the Crim-
inal Justice Section of the American Bar Association urged "the state and federal
governments ... to provide competent and adequately compensated counsel for
capital defendants/appellants/petitioners, as well as to provide sufficient resources
for investigation, expert witnesses, and other services, at all stages of capital pun-
ishment litigation" (Robbins 1990).
Acknowledging the legitimacy of the complaints from the legal community,
Congress undertook to fund some twenty death penalty resource centers; in 1993
the operating costs of these centers came to eighteen million dollars.3 Meanwhile,
the population on the nation's death rows continued to increase faster than did
310
Controversies from Prosecution to Execution 311
available counsel. In 1992 Bryan A. Stevenson, executive director of the newly

created Alabama Capital Representation Resource Center, voiced a note of despair:
The Justices treat us as legal terrorists abusing the Federal courts toward unlawful
ends It used to be that if you took these cases, the judiciary would congratulate
you on your commitment.... But it's burdensome, emotionally and financially....
Partners [in private law firms in a position to underwrite pro bono services to death
row clients] are concerned about public image and expense, and these clients are
society's most despised people. The firms had their one case and they're not willing
to do another. (Jan Hoffman 1992)4
With prisoners entering death row at the rate of roughly 250 per year at present,
and fewer than 100 exiting annually (whether by execution, suicide, retrial, or other
release), the need for qualified lawyers steadily increases. However, in the summer
of 1995, under pressure from radical Republicans seeking to balance the federal
budget and hostile to delays in processing death penalty cases, Congress voted to
zero-fund these centers, leaving the availability of trained counsel for indigent
defendants in future death penalty cases up in the air. This defending, unless re-
versed, or replaced by the states or by private sources, virtually guarantees that
before long some prisoner will be executed despite good grounds for invalidating
either his conviction or his death sentence or both.5
Conditions on Death Row
The physical and psychological conditions on death row continue to raise the ques-
tion whether confinement there for years is itself ' 'cruel and unusual'' in the sense
of that phrase used in the Eighth Amendment.6 Defenders of the death penalty are
typically unsympathetic to any argument about poor prison conditions—even un-
constitutionally "cruel and unusual" conditions—on the grounds that prolonged
life on death row, however wretched and painful, is a direct consequence of the
defendant's own choices, since it always is open to him to drop all appeals and
accept his death sentence.
Opponents of the death penalty disagree, and now they can point to the decision
in 1993 by the Judicial Committee of the Privy Council in England (the final court
of appeal in death penalty cases arising in erstwhile Commonwealth jurisdictions)
in the case of Pratt et al v. Attorney General of Jamaica. In this case the law
lords held that the government of Jamaica has only five years after pronouncing a
death sentence on a convict in which to hear all the issues raised by the defendant
on appeal; if in that time these issues cannot be adjudicated, the defendant must
be resentenced to life in prison. "If the appellate procedure enables the prisoner
to prolong the appellate hearings over a period of years," the judges argued, "the
fault is to be attributed to the appellate system that permits such delay and not to
the prisoner who takes advantage of it" (Schabas 1994:189). What is true for
processing death penalty cases in Jamaica is arguably true as well for such cases
elsewhere, including in this country.
312 Controversies from Prosecution to Execution
Whether these delays should nonetheless be laid at the defendant's door, because
they result from "frivolous" or otherwise ill-advised appeals, can be tested in part
by the reports from death row in Florida presented with cool insight by journalist
David von Drehle in his book Among the Lowest of the Dead (1995) or with more
passion by death row convict Mumia Abu-Jamal in Life on Death Row (1996).
Physician Participation in Executions
In recent years—especially since the advent of execution by lethal injection—

attention has focused on the proper role of doctors and other medically trained
personnel before, during, and after an execution.7 Some have insisted that any
participation is a direct violation of the professional obligations of physicians, since
any involvement in an execution is to that extent cooperation in bringing about an
unnecessary and nonconsensual death.8 Others, including many doctors, see the
matter in a different light altogether, viewing medical participation in executions
both as a personal and professional right and as an effective way to reduce the
likelihood of discomfort (or worse) for the condemned prisoner during the execu-
tion process.9
Methods of Execution
Another chronic controversy concerns the moral and empirical factors favoring
different modes of execution, especially since death by lethal injection has become
so popular. Is lethal injection really no more painful than what our aged household
pets undergo at the hands of a skillful and considerate veterinarian? Or is the impact
on a conscious human person of the standard lethal drugs really unknown? Or is
it known to cause unacceptable distress of various sorts in at least some prisoners?
And where does this leave the firing squad, hanging, the gas chamber, and espe-
cially the electric chair, with its century-long history of misfirings, flash fires, un-
reliable voltage, all in the service of cooking the human brain and nervous system
until the person dies?10 How can anyone familiar with the details of the way the
electric chair works not conclude that it is a "cruel" punishment even if, after a
hundred years of widespread use in the United States, it is not "unusual"?11
What I have elsewhere called Schwarzschild's Paradox—some methods of ex-
ecution are worse than others, but none is better—continues to haunt the practice
of capital punishment in this country.12
Victim-Impact Testimony
Under the Lockett ruling (1978) the defense in a capital case is allowed to introduce
"any" evidence it deems relevant to persuade a jury to bring in less than a death
sentence. The prosecution, however, was kept on a shorter tether and confined
strictly to introducing evidence relevant under one or more of the specific "aggra-
vating" circumstances in the relevant statutes. But in Payne v. Tennessee (1991),

the Supreme Court ruled that the prosecution may now bring in so-called victim-
impact evidence to show the jury just how valuable and loved the victim was and
thus, by implication, how deserving of a death sentence the convicted murderer is.
This is a troubling development; as I have remarked elsewhere:
[Cjriminal desert is supposed to be measured by the offender's culpability and the
harm caused by the crime. . . . [WJhile in theory the harm caused in crimes such as
arson or robbery will vary with the value of the property destroyed or money stolen,
the harm caused in criminal homicide is deemed uniform in all cases, on the tacit
ground that all human lives are of equal worth. . . . Now, however, it will be up to
each capital trial jury to decide for itself whether the murder of which the defendant
has been found guilty is deserving of a death penalty because of some special features
about the victim, features not defined by any statute, possibly not evident to the
defendant at the time of the crime, and not specifiable by the trial court or in any
uniform manner from case to case. (Bedau 1994a:299-300)13
With this brief discussion of these five topics behind us, we can turn to several
perhaps more important issues concerning the administration of capital punishment.
These topics take us from the beginnings of a death penalty case in the prosecutor's
office, through the trial and sentencing, to the clemency hearing and an actual
execution, and end by confronting us with the question whether the system we
have just examined is worth the costs.
Prosecutorial Discretion
Although the Supreme Court in Gregg, Proffitt, and Jurek insisted that capital trial
juries be given some form of statutory guidance in deciding whether to sentence
the convicted defendant to life or to death, the Court has not insisted that com-
parable guidance be imposed on prosecutors. Yet the decision whether to seek the
death sentence is perhaps the most far-reaching decision to be made in the whole
arena of criminal justice. How do prosecutors make such decisions? Why do some
prosecutors seek and others shun the death penalty in the murder cases they bring
to trial? These questions and their answers are examined in the research by legal
scholar Leigh Bienen on the experience in New Jersey, in an article reprinted here
as chapter 23. Longtime Manhattan (N.Y.) district attorney Robert M. Morgenthau
drawing on his own experience, agrees with Bienen's conclusions. As New York
was about to reenact the death penalty early in 1995, he argued that "[t]he death
penalty actually hinders the fight against crime," but "fear of political repercussion
keeps [many district attorneys] from saying so publicly."14
Capital Jury Decision Making
Occasionally a person indicted for first-degree murder will plead guilty before the
judge and be sentenced forthwith (in some states, a plea of guilty nullifies the
possibility of a death sentence). But the usual practice is for the defendant to plead
not guilty and then go to trial, taking his chances with the jury. Prior to Furman,
juries were left entirely on their own in deciding between a life and a death sen-
tence. Since Furman, juries have been helped (at least in theory) by statutory
guidelines specifying the relevant aggravating and mitigating circumstances gov-
erning their choice of sentence.
But how effective is that help? The classic example is in the statutory language
specifying as an aggravating circumstance that the murder was "especially heinous,
cruel, or depraved" (or words to that effect). Just how is a jury to tell when a
murder is, and when it is not, covered by such language?15 What kind of guidance
does such language actually provide to the jury? In general, do jurors really un-
derstand the language in which the judge instructs them in the law of capital sen-
tencing? Furthermore, do jurors really make up their minds on the basis of these
legal criteria and the evidence submitted during the penalty phase? No one knows.
Or, at least no one did prior to the creation of the Capital Jury Project in 1991
and its uniquely informative results to date. Under the direction of William J.
Bowers at Northeastern University, the project has arranged for interviews with
hundreds of former capital trial jurors across the nation in an effort to learn more
about their deliberations prior to sentencing. What emerges from these investiga-
tions is little short of shocking; the confusion, irrationality, and willful indifference
to relevant mitigating conditions among these jurors must undermine confidence in
the ability of the typical capital jury to make responsible sentencing decisions.16
Although the project in 1995 is only midway in its career, more than two hundred
pages of a recent law journal are devoted to discussing the preliminary results.17
A brief essay by law professor Joseph L. Hoffman, surveying some of the findings
of the project so far, is reprinted here as Chapter 24.
Convicting the Innocent
Probably no single issue so fortifies abolitionists as does worry over the possibility
of executing an innocent person. At least since 1762, when the innocent Jean Calas
was hanged in Toulouse, France, the abolition movement in Europe and the Amer-
icas has been influenced by documented cases of wrongful executions—not an
execution of someone merely denied due process (such cases, historically at least,
are legion), nor merely cases in which the defendant's killing in self-defense is
wrongly judged to be murder (such cases, too, are not unknown), but rather where
a person entirely innocent of any role in the crime is nonetheless tried, found guilty,
sentenced to death, and executed. Abolitionists and retentionists alike agree that
this is a terrible injustice, but they disagree over whether it actually happens—or
happens now, or happens frequently—and whether avoiding the risk of it happen-
ing at all is worth the possible cost (in reduced deterrence, incapacitation, and
retribution) of not executing at least the many who are guilty.
The most extensive attempt to document such cases has been carried out by
University of Florida sociologist Michael L. Radelet and me. Our research was
initially made public in 1985 at the annual meeting of the American Society of
Criminology, published in the Stanford Law Review (1987), and then expanded
with the assistance of writer Constance E. Putnam into a book, In Spite of Inno-
cence (1992, new preface 1994). My coauthors and I argue that serious miscarriages
do happen in capital cases, and are bound to continue to happen, and we claim
that in the more than four hundred cases we discuss—stretching over the whole of
this century, from one end of the country to the other—some two dozen cases at
least involve the execution of an innocent person.
Even before the research was published it was put under the microscope by the
Department of Justice in Washington, D.C., a backhanded tribute to how important
some members of the Reagan administration viewed our findings and an unprec-
edented step for the federal government to take in evaluating scholarly research on
the death penalty prior to its formal publication. The task of criticism fell to Paul
G. Cassell and Stephen Markman, two lawyers in the office of then-Attorney Gen-
eral Edwin Meese HI. The first version of their critique appeared as a memorandum
to the attorney general. Then, in 1988, having failed to persuade the Stanford Law
Review editors to reverse their decision to publish our research, or at least to give
equal space for their rebuttal in the same issue of the review in which our article
was scheduled to appear, they published an abbreviated and revised edition of their
criticism in the review;18 our even briefer reply appeared in the same issue.19 Since
then, Cassell and Markman have left the Department of Justice, but each continues
to restate for publication in various sources their criticisms of our research.20 Rather
than reproduce here any of the exchange between us and our two critics, I have
reprinted as chapter 25 the staff report of the House Subcommittee on Civil and
Constitutional Rights, Innocence and the Death Penalty (1993).
Executions "Live" on Television
In the days of public executions, defenders of the death penalty convinced them-
selves that actually seeing convicts put to death would enhance the deterrent effect
of the penalty. Critics were not so sure; by the mid-1800s in this country and in
England,21 many observers thought the spectacle aroused the public to no good end
by making those in attendance either more angry at the authorities for failing to
grant clemency (if the condemned was a sympathetic character despite his or her
crimes) or else coarsened by their own misbehavior (excessive public drunkenness,
especially). Over the past two decades the modern version of this controversy takes
the form of whether executions should be shown on television.22
Playwright Arthur Miller has proposed an even more dramatic way to teach the
nation about the death penalty. With tongue in cheek he argued that we need to
"privatize executions," holding them in football stadiums, selling box seats at two
hundred dollars each—in short, making executions part of the regular entertainment
offerings in major cities across America. Eventually, he mused, the public would
become bored with the spectacle, "just as it seizes on all kinds of entertainment
only to lose interest once their repetitiousness becomes too tiresomely apparent"
(Miller 1992).
Defenders of the death penalty have not participated in the debate over public
executions to the extent that abolitionists have. And, Miller's irony aside, aboli-
tionists are sharply divided over whether televising executions would advance or
retard their cause. Perhaps the best example of this debate is in the brief exchange
reprinted here as chapter 27, between two of the nation's most prominent death
penalty opponents, provoked by the attempt made by station KQED in San Fran-
cisco to televise the execution of Robert Alton Harris. Arguing against televising
executions is Robert R. Bryan, a former chairman of the board of the NCADP and
an experienced death penalty attorney practicing in San Francisco. Arguing the
other side, largely on grounds of free speech, is Henry Schwarzschild, the founder
of the NCADP in 1976 and for fifteen years the director of the Capital Punishment
Project of the ACLU in New York. So far the courts have refused to allow tele-
vision cameras into the death chamber, but this controversy is by no means settled.
Failed Clemency Efforts
As noted in chapter 1, the practice of clemency in capital cases—commutation by

the governor (or other authority) of a death sentence to a long term of imprison-
ment—has fallen virtually into desuetude,23 but not for lack of effort by defense
counsel searching for a way to strike a sympathetic chord. Clemency efforts,
whether successful or not, are not often recorded for the general public.24 Obvi-
ously, some death row prisoners are better candidates for clemency than others
even if, like many who are not, they fail to obtain it. The case of Harold Lamont
("Wili") Otey, presented in chapter 26, is not atypical of those where good (though
not the best) grounds for commutation existed. The Otey case stretched out for
many years and in its entirety is fairly complex; published here for the first time
is an account by Larry Myers, one of his attorneys, focused exclusively on the
political and legal setting of the clemency efforts on Otey's behalf. Despite the
patient efforts of his legal counsel and many friends, Otey was executed in 1994.
Witnessing an Execution
Each side in the death penalty controversy frequently insists that if only we gave
our attention to the central events in a capital case—the horrible murder of the
innocent, the helpless prisoner's needless execution—we could more easily make
up our minds where we stand on the issue, as if rage or disgust were the ultimate
arbiters. The only contribution in this vein to be found in this book is the personal
account by journalist Susan Blaustein of the execution she witnessed in Texas in
1993, reprinted here as chapter 28. "We have perfected the art of institutional
killing," she concludes, "to the degree that it has deadened our natural, quintes-
sential human response to death."25 The reader who seeks a fuller account of
personal involvement with prisoners on death row that culminates with witnessing
the death of a prisoner ought to read Sister Helen Prejean's Dead Man Walking
(1993), the book on which the provocative movie of the same title, starring Susan
Sarandon and Sean Perm, was based. A very different approach, in which the grim
setting for an actual execution is examined in great detail, will be found in two
recent books: Death Work: A Study of the Modern Execution Process (1990), by
criminologist Robert Johnson; and Death At Midnight: The Confession of An Ex-
ecutioner (1996), by Donald A. Cabana, formerly warden at Mississippi State
Prison in Parchman.
Estimating the Costs of a Modern Death Penalty System
How expensive is the death penalty? Does the taxpayer—who, with family and
friends, is also a potential victim of murder—get benefits worth the cost? For more
than a decade abolitionists have argued that however cheap it may be to carry out
the purely physical or technical aspects of an execution (a little electricity, cyanide
gas, or sodium pentothal), a death penalty system of criminal justice for any crime
in a civilized society is enormously expensive. Whether those costs could be re-
duced dramatically by curbing the right of appeal (especially through limiting fed-
eral habeas corpus) and under-funding or abolishing the death penalty resource
centers around the nation, strategies pursued in Congress during 1994 and 1995,
remains controversial.
The most recent (1993) and precise research on the point was conducted in
North Carolina at Duke University; the authors summarize their results in three
conclusions: First, "The extra costs to the North Carolina public of adjudicating a
case capitally through to execution, as compared with a noncapital adjudication
that results in conviction for first-degree murder and a 20-year prison term, is about
$163 thousand." Second, "The extra cost to the North Carolina public of prose-
cuting a case capitally, as compared with a noncapital prosecution, is more than
the $216 thousand per death penalty imposed. This estimate takes into account the
likelihood that the jury will actually impose the death penalty, and if so, that the
appellate courts will return the case to Superior Court for retrial or resentencing."
Finally, "The extra cost per execution of prosecuting a case capitally is more than
$2.16 million" (Cook and Slawson 1993:97, and Verhovek 1995).
Reprinted here as chapter 29 is a broader survey of the whole issue, conducted
and originally published in 1993 by the Death Penalty Information Center. Earlier
studies on this subject may be traced through the references in this report.
Notes
1. See Carter 1979.
2. See also Stout 1988; Coyle, Strasser, and Lavelle 1990.
3. Berkman 1995.
4. See also Margolick 1993; Smothers 1993.
5. See also Lewis 1995; Wiehl 1995; and Dieter 1995b. The crisis in representing death
row convicts has been widely reported in the press; see, for example, San Francisco Chron-
icle, 23 Jan. 1996, p. 1; Dallas Morning News, 19 Feb. 1996, p. 6A; Boston Globe, 4 April
1996, p. As of early 1996 it appears that some, if not all, of the resource centers will be
"reborn as private groups," though on a significantly smaller scale and without any guar-
antee of funding. See Coyle 1996.
6. The debate was initiated by Curran and Casscells 1980.
7. See the report by the American College of Physicians et al. 1994.
8. See Davis 1995. For a general discussion of the whole issue not confined to the
United States, see Radelet 1996.
9. See R. Johnson 1990; Holland 1985; Carroll 1988.
10. See especially Hillman 1993.
11. SeeDenno 1994a, 1996.
12. Bedau 1990b.
13. For fuller details, see V. Berger 1992; Vitiello 1994.
14. See also Nossiter 1995. In Massachusetts, when Governor William Weld announced
the filing of his bill to restore the death penalty, Attorney General Scott Harshbarger opposed
it, saying in part: "It is a simplistic, bumper sticker response to a complex problem."
Worcester Telegram & Gazette, 11 March 1995, p. All.
15. See Garnett 1994; Rosen 1986.
16. Since 1991, Bowers and his associates have released several unpublished working
papers, including " 'Proof Beyond a Reasonable Doubt': A Review of Jurors Thoughts"
(1992) and "Juror's Response to the Defendant's Testimony, or Lack Thereof" (1992). For
a full list, see the Bibliography.
17. See Baldus 1995; Bowers 1995; Sarat 1995; Hoffman 1995; Luginbuhl and Howe
1995; Sandys 1995; Haney 1995; Hans 1995; Sherman 1995; Slobogin 1995.
18. Markman and Cassell 1988.
19. Bedau and Radelet 1988.
20. See Cassell 1994; Markman 1994. For a thorough review of In Spite of Innocence,
see Marshall 1994. For the most recent compilation of innocent defendants released from
death row, see Radelet, Lofquist, and Bedau 1996.
21. See Gattrell 1994.
22. For further discussion of the efforts to televise this and other executions in California,
see Hentoff 1991; Quindlen 1991; Kroll 1991; Kaplan 1991; Sherman 1991. See also Lesser
1993:24-46. A videotape of the Harris execution was made but was later destroyed; see
New York Times, 23 February 1994, p. 35. Other death row convicts—James Autrey in
Texas in 1984 and John Thanos in Maryland in 1994—have sought to have their executions
videotaped; see Goodman 1984; Chartrand 1994. Talk show host Phil Donahue was unsuc-
cessful in his suit against the State of North Carolina, in which he sought to broadcast the
execution of David Lawson in 1994; see Biddle 1994.
23. For a digest of the law on executive clemency, see National Governors' Association
1988.
24. The most extensive discussion of death penalty commutations, during the years
1959-66, is by former California Governor Edmund (Pat) Brown; see Brown 1989. For
accounts of more recent clemency hearings that failed, see Ingle 1990:51-54; von Drehle
1994:29^1 (both on John Spenkelink, Florida, 1979). See also Prejean 1993:157-69 (Robert
Willie, Louisiana, 1984). For an account of a successful clemency hearing, see NCADP
Lifelines, no. 50 (September/October 1990), pp. 1,5 (Billy Neal Moore, Georgia, 1990).
25. For other eyewitness descriptions of recent executions, see Cabana 1995; von Drehle
1995:104-13, 393-401; Moran 1985. For a journalistic account, see Solotaroff 1995. See
also Johnson 1990; Ingle 1990; Trombley 1992.
23
"A Good Murder"

LEIGH B. BIENEN
A good murder, a genuine murder, a fine murder, as fine as you could hope to
see, we haven't had one like it for a long time."
Georg Biichner, Woyzeck (1836)
. .. Every culture has its own way of portraying death, of ritualizing murder. In
America, representations of violent and ghoulish murders are pervasive in our en-
tertainment and news. The reports of murders, especially capital murders, do not
only tell us what is out there and what happened; they tell us what to think and
how to feel. Portrayals of murder cases communicate important messages about
who is in charge and who is a threat.
Sometimes the message is that the people who are convicted of capital murder
are beneath contempt, unworthy of anything more than summary justice. They are
so threatening to our lives and property that they can be kept in prisons which are
brutal and inhumane, or, better, executed. Sometimes the message is that the society
needs to continue to spend large amounts of money on law enforcement and the
establishment and maintenance of prisons. Another frequently heard theme is that
it is unfair for police and prosecutors to be forced into battle using laws which
give an unfair advantage to the accused, that the courts have been sentimental and
foolish in restricting the police in the area of search and seizure and in the use of
evidence from confessions.
If the news presented its message in terms of those kinds of abstractions, no
copies of newspapers would be sold, and no one would watch dramatizations of
the day's events on television. So the news carries its cultural burden the way
societies have always transmitted their most important messages, through stories
and drama. Some dramatizations may airbrush out those facts of the case which
do not fit within the stock script. Yet the dramatization will retain enough details
from the actual crime so that the viewer's pleasure is heightened by the illusion of
verisimilitude. It is no longer even necessary to change the names of the principals
Reprinted from Fordham Urban Law Journal 20 (1993), pp. 585-607 by permission. Portions of the
text and footnotes have been omitted and the remaining footnotes renumbered.
319
of the crime which catches the fancy of the public before it becomes the subject
of a television movie.
Murder, in other words, sells soap and beer and cars and newspapers. A good
murder, that is, one the public wants to read about, will generate dozens of sto-
ries. The formerly prim Metropolitan section of the New York Times has be-
come a daily reading of our cultural attitudes towards violence in general and
murder in particular. New York City reports over a thousand homicides a year,
the vast majority of which do not occur in Manhattan. Almost every day in the
Manhattan daily newspapers, there is a story about murder. There are also many
stories about capital murder prosecutions and detailed reports of executions in
other states, since [as of 1997] New York state has no capital punishment stat-
ute.
. . . The prosecution of murder cases, especially the prosecution of capital cases,
has much to do with cultural stereotypes and dreams of revenge. Capital prose-
cutions are supposed to be reserved for the worst people, people who have com-
mitted crimes so terrible that society does not think they deserve to live. The need
for vengeance and cultural expiation are central to justifications for the death pen-
alty. Dramatizations of murders and capital trials are very effective in feeding
people's desire for revenge. The prospect of an impending execution, as was re-
cently seen in the Wesley Dodd case in Washington state, gives the media an
opportunity to focus again and again upon the repellent and horrifying details of a
murder. The public response is one of outrage and frustration, and this sense of
rage is fueled by the daily repetition of details of brutality as the execution draws
closer. The murder occurred once, but the public is presented with it again and
again to justify the execution.
Choices about how and what to report in a crime story anticipate and play
against assumptions concerning the expectations of an audience conditioned by
heavily stereotyped dramatizations of violence. One scenario of urban murder
which is seen frequently includes a black male defendant, perhaps an illegal im-
migrant, possibly high on drugs or mentally unbalanced, or mentally deficient, or
previously institutionalized, someone who is without a job, has a criminal record,
possibly on parole or probation for another offense, who kills a middle class vic-
tim, male or female, but often white. In these murders, which may briefly be-
come obsessions for a community, the victim not only works, but symbolizes the
values of the meritocracy. Often the victim is an incarnation of the myth of self-
made success, a model which is a cruel rebuke to many citizens. The message of
such stories is clear: someone who is worthless killed someone who was of
value.
Reports of murders in the tabloids tend to be the comic book version, complete
with bubble quotes and illustrations. And the level of tolerance for details of bru-
tality and violence in the news continues to rise. The accepted level of the brutality
in entertainment has escalated to the point where two or three murders in a movie
are considered trivial. The target audience of teenage boys pays to see graphic
dismembering or explicit slashing of what is called in rape reform legislation the
"A Good Murder" 321
initimate parts. In a quiet evening at home the viewer can vicariously participate
in a dozen homicides, identifying in turn with the victim, slayer, investigator, police
or prosecutor. The young men who are the target audience for action movies are
especially death-obsessed, and they account for an increasingly large proportion of
all murders committed.
Granting that the criminal justice system may be misrepresented in high profile
and high action news stories, what do these dramatizations of murders have to do
with actual homicides, with what murder in the cities really looks like? A single
sensational murder has been known to be the impetus for changing the penalty for
murder, but aside from that kind of isolated impact, can it be said that whether
stereotyped or not, media representations of murder have any effect upon the crim-
inal justice system? . . .
II
This essay will describe a pattern which emerged when researchers examined all
homicide cases in the state of New Jersey during the years immediately after the
reimposition of capital punishment in 1982. Particularly relevant is the pattern of
capital prosecution for urban and suburban murders, and how those cases were
regarded by law enforcement, the media, and the public.
In 1982 the New Jersey legislature reinstated capital punishment with a statute
which identified eight aggravating factors that could be used to elevate the crime
of ordinary murder to a capital offense. The capital statute in New Jersey is similar
to capital statutes in effect in a number of other jurisdictions; indeed, it is similar
to the statute which was proposed to reenact the death penalty in New York in
1991.
Several aspects of the New Jersey situation, however, are unusual. First, the New
Jersey Supreme Court has had a history of being a leader in the development of
state constitutional doctrine. Second, the Office of the Public Defender in New
Jersey is unusual in that it is administered by a single administrative agency at
both the trial and appellate level. Immediately after reenactment, the Office of the
Public Defender was able to commit itself to a coordinated statewide challenge to
the reimposition of capital punishment at both the trial and appellate level. This
challenge included a data collection and analysis project dedicated to tracking all
homicide cases and capital prosecutions in the state after reenactment. The atypical
institutional structure of the Public Defender's Office at the time made such a
comprehensive, statewide data collection effort possible. The Public Defender data
base was eventually taken over by the Administrative Office of the New Jersey
Supreme Court, and subsumed within the research of the New Jersey Supreme
Court's Proportionality Review Project.
Data were collected on all final dispositions of homicide indictments at the
trial court stage, a process which takes about two years for most murders and
longer for cases which are declared capital. The Proportionality Review Project
presented an analysis of dispositions in over 1350 homicide cases to the New

Jersey Supreme Court in the capital appeal of State v. Marshall This case in-
volved the first person in New Jersey to have a death sentence upheld by the
state supreme court. The Report presented to the Marshall court included a de-
tailed analysis and description of over 260 death eligible murder cases which had
resulted in thirty-five death sentences actually being imposed, during the period
of 1982-1989.
In New Jersey and most other capital jurisdictions, capital murders are a small
proportion of all murders and only a fractional proportion of all homicides. The
proponents of reenactment in New Jersey repeatedly stated that they intended the
capital punishment statute to apply to few cases, that is, to the exceptional case.
Only a few defendants have been sentenced to death in New Jersey since reen-
actment in 1982, a total of thirty-nine; and of these thirty-nine who were sen-
tenced to death, only one person, Robert Marshall, has had his death sentence
upheld through all stages of the state appeals process. The New Jersey Supreme
Court reversed twenty-six death sentences in a row, an unprecedented series of
reversals by any state supreme court, before upholding Mr. Marshall's death sen-
tence on direct appeal. The court then ordered a special and separate set of ar-
guments to address the question of whether imposing the death sentence in this
case was fair in comparison to the sentences imposed upon similar defendents
for similar crimes.
Although there were over 250 cases where the death penalty could have been
sought, and over 120 cases which went to a capital penalty trial after a verdict of
guilty of capital murder, less than a quarter of all aggravated murders and less than
a third of the cases which reached the second stage of a penalty trial resulted in
the jury imposing a death sentence. In spite of the high level of support for capital
punishment in the opinion polls, and in spite of the fact that the cases which reached
penalty phase were typically very aggravated murders actual jurors were reluctant
to impose the death sentence when faced with that option in sentencing a real
defendant who had murdered a real victim. National opinion polls reported that
about 80% of the people in the state were in favor of capital punishment during
this period, yet the death sentence, in New Jersey at least, has been imposed in a
very small number of actual cases. Some take that as a sign that the law is being
applied justly.
The reason why there are a few capital prosecutions in New Jersey and elsewhere
is not because there are few killings which meet the legal criteria for capital pros-
ecution. In New Jersey and elsewhere, the definition of death eligible murder is
broad enough to encompass many more cases than will ever be prosecuted as
capital murders. Local prosecutors have a great deal of discretion in the cases they
select for capital prosecution. The decision to prosecute for capital murder is usu-
ally not determined by limitations on the statutory definition of death eligible mur-
der. One statutory factor alone, the felony factor, which declares capital all murders
associated with the commission of another felony, regularly presents a large number
of death eligible homicides.
"A Good Murder" 323
When capital murder prosecutions in New Jersy were examined over a seven
year period immediately after reenactment, it became apparent that the number of
potentially capital murders in urban areas is far larger than the number of such
murders in rural and nonurban jurisdictions. Yet in New Jersey, prosecutions for
capital murder are far less likely to occur in some urban jurisdictions.
Historically, in both the South and the North, racial disparities in the application
of the death penalty have resulted in a disproportionate number of blacks being
sentenced to death and executed. Recently there has been a widespread and well
documented pattern of defendants being more likely to be sentenced to death if
their victims are white, irrespective of the race of the defendant. In addition to
race, many believe that factors of class and social status are influential in deter-
mining who is prosecuted for capital murder and sentenced to death.
Those who argue for capital murder as a way of championing the victims of
homicide overlook the fact that there are so many victims. During the period of
the New Jersey Proportionality Review Project, there were thirty-five death sen-
tences imposed. During that same period, from over 1300 homicides, 264 cases
almost certainly could have been declared death eligible by the prosecutor, and
119 cases actually resulted in a conviction at trial for capital murder. What was
distinctive about the small number of cases where the death sentence was actually
imposed? What characteristics did the capital cases have in common?
In New Jersey and most other states, the important unit is the county. The county
defines the limits of trial court jurisdiction: prosecutors are county, not city, officials
who may or may not be elected; and jurors are selected according to county vici-
nage. New Jersey is unusual in that a very large proportion of the state is classified
by the U.S. Census Bureau as being within a metropolitan area, but New Jersey
also has suburban and rural counties.
There are significant county-by-county disparities in income and economic vi-
tality in New Jersey. Six counties have been identified by state urban planners as
having large urban centers which are economically distressed: Essex, Camden,
Hudson, Passaic, Mercer and Union. Not surprisingly, these counties also have a
high proportion of blacks and Hispanics, a high unemployment rate, and a relatively
low per capita income. Together these six counties accounted for over 68% of all
homicides and over 60% of all aggravated, potentially capital murders in the state.
Some rural counties are also relatively poor, however, and not all suburban counties
are wealthy.
Murder is overwhelmingly a crime which involves people of the same race. As
a result, more often than not, the greater proportion of murders in the cities consist
of black and Hispanics killing one another. Specifically, murders in the cities typ-
ically consist of black and Hispanic men between the ages of eighteen and twenty-
six killing one another.
Essex County, which reported the largest number of homicides in the state, had
a large proportion, seven out of thirty-five, of all death sentences in the study
period. But those seven cases in Essex county in which the death sentence was
imposed represented less than 2% of all homicides in the county and only 13% of
all of the homicides in the county where there was a clear factual basis for the
imposition of the death penalty under the statute.
Essex County had over 20% of all of the death eligible cases in the state, yet
the death sentence was imposed in only 13% of those cases. Over a fifth of all
potentially capital homicides were disposed of in Essex County courts, yet capital
prosecutions in Essex County accounted for less than 14% of all homicide dispo-
sitions. In other words, many serious highly aggravated murders occurred in Essex
County, but a very small proportion of them were prosecuted as capital cases.
In contrast, the Ocean County courts, which adjudicated a total of twenty-seven
homicides in the entire study period of over seven years, imposed three death
sentences from a pool of seven death eligible cases. Ocean County, which ac-
counted for 3% of all death eligible homicides, imposed the death penalty in 38%
of those cases, in comparison to Essex County's 13%. Hudson County had the
same number of penalty trials as Ocean County, seven, and no death sentences
were imposed in Hudson County during the period. Yet Hudson County, which
includes Jersey City, had 159 homicides during the period, of which nineteen were
eligible for capital prosecution of their facts.
There is some evidence that this pattern of widely varying rates of prosecution
from one prosecutorial jurisdiction to another is not atypical. A recent report on
capital case prosecutions in adjoining rural and urban jurisdictions in Georgia found
striking differences between the Chattahoochee and Atlanta judicial districts.1 The
rural district of Chattahoochee imposed 75% more death sentences than Atlanta, a
city with nearly three times its population and many more homicides. In potentially
capital cases in Chattahoochee, the prosecutor sought the death penalty in 34% of
the cases when the victim was white, but only 6% of the time when the victim
was black. Although black victim cases constituted 65% of all murder cases in the
district, they accounted for only 15% of all cases which were prosecuted capitally
in Chattahoochee.
Pennsylvania now has one of the larger death row populations. As elsewhere,
race seems to be relevant to sentencing patterns. One Philadelphia judge has sen-
tenced twenty-six men to death, twenty-four of them African-American. The sen-
tences of this Philadelphia judge alone account for about a fifth of the death row
population in the state. Yet, another type of pattern has been observed in Penn-
sylvania—one which suggests that race may be only one factor in creating large
county-by-county disparities in patterns of capital sentencing.
Philadelphia, which does not allow public defenders to represent capital defen-
dants, accounts for 14% of the state population and over 50% of all death sen-
tences.2 Allegheny County, which includes Pittsburgh and 12% of the state
1. DEATH PENALTY INFORMATION CENTER, CHATTAHOOCHEE JUDICIAL DISTRICT: THE BUCKLE OF

THE DEATH BELT (1991) (With the support of the Southern Christian Leadership Conference, this
organization (based in Washington, DC) reports statistics on the imposition of the death penalty in
Chattahoochee and Atlanta.).
2. MICHAEL KROLL, DEATH PENALTY INFORMATION CENTER, JUSTICE ON THE CHEAP: THE PHILA-
DELPHIA STORY (1992) (reports statistics on the imposition of capital punishment in Philadelphia, Al-
legheny County and all Pennsylvania).
"A Good Murder" 325
population, accounts for less than 5% of all the death sentences. Allegheny County
does provide public defender representation in capital cases. In Philadelphia, capital
cases are assigned at very low fees to the private bar.
The first case in which the New Jersey Supreme Court upheld a death sentence
after reversing twenty six in a row was a case in which a white male insurance
executive from Monmouth County, a high income suburban county, murdered his
wife after taking out a million dollar insurance policy on her life. Mr. Marshall
paid two accomplices to commit the murder, and there is little doubt either that he
planned the murder, that he paid his accomplices to commit the murder, or that
his motive was to kill his wife for the insurance. Mr. Marshall is now the only
person in New Jersey who has a death sentence which has been upheld through
all stages of state appellate review process, including proportionality review, and
his appeal is now pending in the federal and state systems.
Ill
The capital prosecution of Robert Marshall was portrayed in a series of widely

popular retellings. A book about the case, Joseph McGinnis' Blind Faith, remained
high on the best seller list, and it then became the basis for a television mini-series
watched by an audience which numbered in the millions. The television mini-series
left the audience with the impression that justice was done because a bad man who
killed an innocent person was sentenced to death and will be executed. And at
some simple level that is true. On the other hand, if that were the standard for
justifiable legal executions, there would have been a least a hundred executions in
the state of New Jersey alone since reenactment in 1982.
The verdict appeared fair to many because Mr. Marshall was clearly guilty: and
ambiguities, contradictions and complexities in the case were either lied about or
omitted from the book and other versions retelling this story. A general audience
would have no sense of how Mr. Marshall's culpability compared with that of
others who may or may not have been sentenced to death. The popular audience
was left with two misleading impressions: that every murder case is treated like
Mr. Marshall's case, and that his case was especially and uniquely aggravated. The
dramatizations and news reports led the public to believe that a white middle class
person is as likely to be sentenced to death as a black person, or a poor person,
because this particular capital trial did not fit the former stereotype of a poor black
illiterate man being railroaded to the death sentence.
Partly because of the enormous media attention given to the Marshall case, the
challenge to his death sentence became more than usually politically charged, es-
pecially since the New Jersey Supreme Court had already inspired the wrath of the
legislature and some of the public by overturning twenty-six death sentences in a
row before upholding the first one in the case of Mr. Marshall.
Mr. Marshall's murder was atypical of murders in New Jersey, and it would
have been an unusual case in any jurisdiction. But, the Marshall case did bear
some resemblance to other capital murders. It was a made-for-media murder, and
those who had the wit to recognize its commercial potential made substantial prof-
its. It was not by chance that the case became the subject of a best selling book
and a television mini-series. The circumstances of Mr. Marshall's case contained
many standard features of Hollywood melodramas involving murder, and that made
this murder especially appealing to the entertainment industry.
To imply that a murder must be Hollywood-worthy before it will be prosecuted
capitally is only partially facetious. Cases will be selected for capital prosecution
according to factors which demonstrate patterns of bias related to class and race
and reflect the unchecked discretion of local prosecutors.
The Marshall case is an extreme example: the reasons why the circumstances
of this case became the plot for a best selling book and a mini-series were not
irrelevant to why and how Mr. Marshall was prosecuted for capital murder. The
Marshall case had a recognizable villain who could have been a character in a
melodrama from the fifties. He had a clearly discernible motive, which identified
him as a bad guy, deserving of punishment. His victim could not have been
more heroic or blameless, always a relevant factor for audience indentification.
Mrs. Marshall was a model mother and wife, and she devoted herself selflessly
to her sons and her foolish and errant husband, who showed his gratitude by
murdering her. There were circumstances in this case which made for a saga of
injustice.
Not only did Mr. Marshall have a comprehensible motive for killing his wife,
but he was killing her for an insurance policy he took out on her life, without her
knowledge, because he had gambling debts and wanted to run away with his mis-
tress, who became, after some prosecutorial maneuvering, the state's star witness.
Mr. Marshall had a motive everyone could understand, and he articulated that
motive to people who testified about it at trial. Ineptly he tried again and again to
persuade marginal and incompetent petty criminals to kill his wife for him. Finally,
they did it, by shooting her at a turnpike rest stop where Mr. Marshall had pulled
off the road and delivered her to be murdered, as prearranged.
The story aspects of the case were compelling. Interesting and colorful types
were tangled up in the action, and this was capitalized upon in the various dram-
atizations and retellings of the murder. There were many ironic twists to the plot,
and a dramatic ending, the imposition of the death sentence. The hit man, the person
who allegedly fired the gun which killed the victim, was acquitted of murder at
trial, and his partner at the killing was released pursuant to a plea bargain shortly
after testifying for the prosecution at trial. By contrast, a marginal participant who
had never set foot in New Jersey at the time of the murder, whose role was alleg-
edly no more than passing on phone messages in Louisiana, was sentenced to thirty
calendar years without parole. The mistress took the stand for the prosecution and
testified at length about her clandestine love affair and that Mr. Marshall told her
he wanted to get rid of his wife. Her own role in the case could have been the
subject of a whole other movie. Mr. Marshall himself, the audience agreed, was
villainous, cowardly, despicable, and stupid. He was sentenced to death by the jury
after a very short penalty trial.
U
A Good Murder" 327
Is this an unjust result? Mr. Marshall certainly committed murder, and there
was little in his character or actions to excuse him. But he is no worse than sev-
eral dozen others who committed equally cold blooded murders, but who will
not be executed for reasons which have nothing to do with the seriousness of
their murders or the harm they caused to innocent victims or their threat to the
public peace. Not only were there several cases which were very similar to the
Marshall case in their circumstances, but there were other spousal murders in
New Jersey which were at least as aggravated, where the death penalty was not
imposed or even considered.
As reprehensible as Mr. Marshall's motives were, and as blameless as his vic-
tim was, his case probably would not have been prosecuted capitally if it had oc-
curred in Newark, Jersey City or Camden. Wicked, foolish men kill their wives
and get caught in those jurisdictions too, but rarely are they prosecuted for cap-
ital murder....
The pattern in New Jersey is an inversion of an earlier sterotype. This pattern
may or may not persist, although there is some evidence that parts of this pattern
are repeated in other jurisdictions. The former sterotype was that if you were poor
and black and male, and represented by a public defender or assigned counsel, you
were likely to be railroaded into a death sentence by an all white prosecutorial
system. And that may still be the case in some jurisdictions or in places where
courts and legislatures refuse to allocate resources to the defense of capital cases,
in spite of the constitutional requirement to provide indigents with adequate rep-
resentation.
However, in New Jersey during the period studied, it was an advantage to be
represented by the Public Defender, counter to the earlier popular stereotype. In
some jurisdictions it may still be the case that black defendants are significantly
more likely to be sentenced to death than whites, other things being equal, although
this effect is not seen in recent national studies. It is difficult to comprehend dis-
crepancies such as those cited for Philadelphia and Chattahoochee outside of a
racial context. The racial effect that recently has been documented independently
in a number of states is a white victim effect: a person who kills a white victim is
more likely to be prosecuted capitally and sentenced to death, other things being
equal.
Since the reenactment of the death penalty in New Jersey the following pat-
tern emerged: if you were poor and black and committed a murder, and if your
victim was poor and black and your case was processed in an urban jurisdic-
tion, and if you were represented by the Public Defender, you were less likely
to be prosecuted and convicted for capital murder or to be sentenced to death,
than if your crime was committed in a rural or suburban jurisdiction and your
victim was white, especially if your victim was white and middle class. Having
a private attorney was no advantage, and the presence of a white victim was
statistically significant. In part, this pattern in New Jersey reflects the same
"white victim effect" which has been independently documented and verified
in many other states in the North and South. Partly it is the result of other fac-
tors, such as the differential economic resources available to the prosecutor's

office in urban and suburban counties.
Certainly the resources available to the prosecutors is one explanation for county
disparities in capital case processing. Even though Essex County regularly reported
over 140 homicides a year, it had no new capital prosecution for over a year during
the middle of the period studied. Part of the reason for the lack of such prosecutions
was that the financial resources of the prosecutor's office were strained due to a
county budgetary crisis. And a backlog in the county courts existed to the point
where several judges in the Essex County court house only heard cases which had
been indicted prior to 1982. Neither political nor institutional forces in Essex
County at that time were pressing for expensive and lengthy capital trials.
Essex County juries are also different from the juries in Ocean County and
Monmouth County: Essex County juries have more black people on them, more
Hispanics, and the jurors are younger. We know that younger people, blacks and
women and Hispanics, are less likely to be in favor of capital punishment than
older white men, the group most likely to support capital punishment and to see it
as in their interest. We also know that blacks have more skepticism about the
fairness of the criminal justice system generally, and the system for imposing cap-
ital punishment in particular. The polls consistently indicate that black men and
women are significantly more likely than whites to believe that the imposition of
the death penalty is racially biased.
These may be some of the reasons why relatively few death sentences come
from Essex County, even though many of the aggravated murders come from Essex
County. So when the prosecutors are not charging capital murder in Essex County,
it may not only be that the county's prosecutors are overburdened and underfunded,
although that is certainly not irrelevant in spite of the county prosecutor's official
protestations to the contrary. The Essex County prosecutors may know that an
Essex County jury is unlikely to return a death verdict against some defendants,
even though the circumstances of the murder theoretically meet the objective, legal
criteria for death eligibility. There is another intangible factor which should not be
discounted. Murders in Newark do not even make the front pages of the major
newspapers any more. There are so many of them.
What about Hudson County, a county which includes Jersey City and accounts
for quite a few murders? During the entire first decade that capital punishment has
been in effect in New Jersey, there has not been a death sentence imposed in
Hudson County. Yet Hudson County had fifteen death eligible cases and seven
penalty trials during the period studied, twice as many as Ocean County, and Hud-
son County accounted for a total of 159 homicide cases in the data base of over
1300 cases. There were rumors that the county prosecutor in that county did not
much like the death penalty, and that he did not believe the death penalty should
be imposed upon minorities.
Is it credible to suggest that there was no case as aggravated or as serious as the
murder of Mrs. Marshall among those 159 Hudson County cases? In the state as
a whole there were over a hundred cases that involved a man killing his wife or
U
A Good Murder" 329
sex partner during the period. There must have been at least one other wife as
blameless as Mrs. Marshall. Some of the cases documented involved dismembering,
over fifty stab wounds, and tortuous homicidal incidents in which the victim suf-
fered over a considerable period of time. Yet these cases did not result in the death
sentence being imposes, or even sought.
The lesson here is that murder is ultimately a personal crime, in addition to being
a crime against the person. A very particular person is the victim of murder. Of
course the individual circumstances of the crime are important. A jury is going to
be more likely to find an unsympathetic defendant guilty of capital murder if the
victim is victuous, blameless, educated, good looking, and a parent, and everyone
involved is prosecutorial decision-making along the way knows this and plays upon
it.
IV
The way crime is reported, where some stories are selected over others, some
tales told and some not, and the way murders are prosecuted, reveals who and what
society values. Characterizations of killers and how they are brought to justice is
an important part of our national identity, the reflection we get back from the
cultural mirror. As Americans, one of our most dearly held self images is that in
the United States there is equality before law, that the poor, racial minorities, the
mentally retarded and the illiterate receive as fair a trial as the rich. Whether or
not it is true in each individual case, it comforts us as a people to believe our
criminal justice system treats everyone alike. There is certainly no other society
where both the state and federal government devote so many resources to providing
poor people with lawyers.
What is frequently expressed now both in news stories and their dramatizations
is a portrait of the criminal justice system as an ineffective and overwhelmed parent,
sometimes a parent who is corrupt, sometimes just a bumbling parent who is well-
intentioned but cannot cope. Sometimes the message is that the system is so badly
broken that no one should even care about fixing it. The criminal justice system
in this portrayal begins to resemble the nuclear arms industry: it costs too much,
it does not do what we want, but we cannot do anything about it.
This orchestrated view absolves the rest of us from responsibility, and lets us
believe that justice has nothing to do with us. Law abiding citizens should stay
away from the criminal courts and let the police and the prosecutors do the nasty
job of protecting the hard working, taxpaying people, who bear little resemblance
to those who end up in jail. It is us against the monsters out there. If the police
have to be nasty, if prison conditions are inhuman, it is to protect the lives and
property of the law abiding.
In this scenario, defense attorneys and civil libertarians are naive do-gooders,
troublemakers, or cynics who take advantage of a system in disrepair or dishonestly
manipulate the law to try to bring about an unjust result, the acquittal of a guilty
person. And since jobs are involved, we had better just leave the system as it is.
The threat from criminals on the loose is too large and important for the ordinary
citizen to understand: better let the men in uniforms and dark suits make all the
decisions. It is probably good if middle class people do not know too much about
what goes on in our criminal courts and prisons. It is certainly better not to object
when we suspect things are not as they ought to be, especially if we can tell
ourselves that the experts are in charge.
If capital murder cases are no more than the good guys chasing down the bad
guys, and homicidal maniacs are threatening my job, my house and my kids, and
it's all a mess anyway, why not call in Clint Eastwood or Charles Bronson. The
death penalty, after all, just catches and stops one of those bad guys; there are so
many of them and so few of us. Sentencing a person to death acts as a catharsis
for everyone's general sense of overwhelming frustration.
This is not to suggest that the dramatized representations of crime in the news
do not respond to real public concerns about crime and violence. News reports of
murder are real, and important. The question is, how do emotionally heightened
representations of murder cases influence how actual murder cases, and especially
capital murders, are handled in the real criminal justice system? How do reports
of murders justify the maintenance of the criminal justice system in its present
form? Dramatizations, and the way in which murders are reported, have a powerful
effect upon the selection of actual cases for capital prosecution and upon public
perception. The portrayal of murders in the media shapes what the society believes
to be important.
The pattern which emerges from an analysis of homicides over a decade in New
Jersey suggests that urban homicides, especially those in which young blacks kill
other blacks, mostly men but women too, or Hispanics kill Hispanics, are likely to
be plea bargained to relatively light sentences. Perhaps the likelihood of plea bar-
gaining reflects the fact that the society does not care about these victims, perhaps
it is because these cases are not newsworthy. Or, perhaps it is the other way around,
the cases are not newsworthy because they are plea bargained. Or, the cases are
downgraded, both literally and procedurally, because we have no framework for
the stories of the defendant or victim. Or, is it because the urban counties have
fewer resources, or more forgiving juries, or just because there are so many murders
there?
Whatever the reason, this does not seem to be a random or isolated pattern.
Rarely do urban homicides involving minorities result in a capital prosecution,
even though their circumstances may be highly aggravated, and in spite of the
fact that minorities in the cities ara legitimately worried about the threat of
crime and are disturbed by the reality that entire groups of young men are be-
ing removed from the community by homicide and the imprisonment for it.
The public minded citizens of the city do not think these murders among
young men are trivial.
The media, both the commercialized entertainment industry and its cousin the
news industry, continue to dramatize capital murder either as an old fashioned
"A Good Murder" 331
detective melodrama, as in the Marshall case, or as the hunting and banishment of

monsters, because that is what a conditioned audience expects. The Marshall case
was an atypical spouse murder. Most men who kill their wives do so in a fit of
drunken rage, after a pattern of repeated, serious beatings. Audiences are pleasur-
ably terrified by portrayals of murderers as Hollywood villains or lurking strangers.
These scare tactics do not even serve a useful educational purpose. For self-pro-
tection women should receive the message that the man to fear is their abusive
husband, or a familiar acquaintance, not the stranger in the alley.
By making monsters out of marginal or mentally ill murderers, by insisting
that they are the threat, emotionally charged dramatizations of crime justify de-
priving many other people of their rights; they make brutal and inhumane con-
ditions of imprisonment seem legitimate. Focusing on the high profile, talismanic
urban or suburban murders in which a minority person kills a middle class white
also justifies incarcerating large numbers of minorities for other types of offenses
that are often relatively minor. The United States has more people absolutely,
and more people per capita, in prison than any other country in the world, in-
cluding Pakistan and South Africa. The Hollywood version of capital murder
cases—which implies that the good guy cops are catching bad guy murderers,
and that it all ends up all right when a bad person is executed—is reassuring, but
inaccurate....
Dramatizations like those of the Marshall case portray a criminal justice system
which is comprehensible and fair, even if harsh. This conforms to what many white
suburbanites and some middle class blacks would like to believe. The death penalty
is put in a context which both of these audiences find acceptable, and even desir-
able. Stories about murders which are not prosecuted, or murders where guilty
defendants get off lightly, or where a retarded person, or a person who might not
be guilty, is executed, imply that the system is unjust, is not working effectively.
That does not make any one feel good. So capital murders continue to be presented
as revenge dramas, as westerns, good guys versus bad guys shooting it out at the
OK corral. This characterization of capital prosecutions tells us the criminal justice
system is fine. It is effective. Justice is being done.
The death penalty is not about deterring murder. If law makers really wanted to
prevent the deaths of innocent, helpless victims, lowering the speed limit to fifty-
five miles per hour and vigorously prosecuting drunk drivers would result in a
predictable reduction of highway fatalities. There is no reliable empirical evidence
that reinstating capital punishment has any effect upon the homicide rate, or that
it removes the worst murderers, although it is certain that reintroducing the death
penalty will push up the costs of prosecuting murders.
There is something fundamentally wrong with a capital punishment system
which selects people for execution on a random basis, or on the basis of whether
the circumstances of their murders tell a story which will sell newspapers or tele-
vision advertising. There is something very wrong with a society which allows its
criminal justice system to seek vengeance for only a few who are murdered, es-
pecially if those few also happen to be the privileged in the society.
Our system for prosecuting murders is not working. We do not do ourselves a

favor by lying to ourselves about this. The death penalty solves nothing, is nothing
but a ghoulish entertainment, a distraction which keeps us from addressing the
more serious structural problems of the entire criminal justice system. As law stu-
dents, lawyers, judges, and most importantly citizens, we have been taken in, and
we know better.
24
How American Juries Decide Death

Penalty Cases: The Capital Jury Project
JOSEPH L. HOFFMAN
In the United States, the jury system is becoming a matter of controversy. Most
Americans still support the basic concept of the jury trial, especially in criminal
cases, believing juries composed of average citizens to be an important bulwark
against the potential tyranny of government. At the same time, widely publicized
cases like the Menendez case, the Hattori case, the two Rodney King trials, and
now the O. J. Simpson case have led many Americans to question whether juries
can be trusted to make wise decisions. Emotional arguments by lawyers, pressures
from the mass media, and personal disagreements within the jury room often seem
to distort jury decision making.
Unfortunately, much of the debate about the jury system has taken place in the
dark, because juries conduct their business in a "black box"—no one else is
allowed in the jury room during jury deliberations. More than thirty years ago, the
Chicago Jury Project, headed by Harry Kalven and Hans Zeisel, tried to observe
juries by using hidden cameras and microphones. This part of the research was
quickly banned, however, and ever since, researchers have been unable to study
jury behavior by direct observation.
In the absence of direct observation, jury research has relied largely on either
"mock jury" studies (using volunteers, often university students, who pretend to
be jurors in a real or imaginary case) or inferences about jury behavior from the
end results of actual cases. These methods have produced important knowledge
about juries, providing an empirical foundation for the theoretical work of Phoebe
Ellsworth, Shari Seidman Diamond, Valerie Hans, Reid Hastie, Nancy Pennington,
Vicki Smith, and other leaders in jury research. Yet these methods often seem to
be missing a crucial connection with the "real world" of jury decision making.
Jury researchers have lacked the opportunity to learn, as Kalven and Zeisel tried
to do, what really happens in the jury room.
The Capital Jury Project is an attempt to fill this research gap in the specific
This is a slightly revised version of a paper presented at the 1995 annual meeting of the Research
Committee on the Sociology of Law, International Sociological Association, held in August 1995 at
the University of Tokyo.
333
context of death penalty trials. Death penalty trials are certainly the most important
cases a jury is ever asked to decide—they involve, quite literally, a matter of life
and death. I will begin by explaining some of the basic procedures of an American
death penalty trial. Then I will describe the Capital Jury Project and its method-
ology. Finally, I will report some of the interim findings of the Capital Jury Project.
American Death Penalty Cases
There are both similarities and differences in the basic procedures that are used in
an average American criminal trial and in the trial of a death penalty case. One
important difference is in the selection of the jury. In an average criminal trial,
jury selection deals primarily with identifying any potential jurors who might have
prior knowledge about the case, or who might have a relationship with one of the
parties; often, it takes only a few minutes to select a jury.
In a death penalty trial, on the other hand, any person whose personal views
about capital punishment are strong enough to substantially influence his or her
behavior as a juror is excluded from service. In other words, each potential juror
must be capable of giving full and fair consideration to both a life sentence and a
death sentence. This legal standard creates an opportunity for the lawyers to battle
over each potential juror, based on their feelings about whether the potential juror
is likely to favor one sentence or the other. For this reason, jury selection in a
death penalty case often takes several weeks; during that period, potential jurors
are probed for their views about capital punishment, before they have even begun
to hear any evidence about whether the defendant committed the crime.
After the jury is finally selected, the next part of an American death penalty
trial—which is called the "guilt phase"—proceeds much like any other criminal
trial. The prosecution presents its case first, followed by any evidence the defense
wishes to present. The defense need not present any evidence at all; the prosecution
must always bear the burden of convincing the jury, beyond a reasonable doubt,
that the defendant is guilty of the crime. The defendant need not take the stand as
a witness, and no inference of guilt may be based on the defendant's silence in the
courtroom. The trial judge is a largely passive observer of the proceedings, ruling
on procedural matters but otherwise letting the jury make up its own mind based
on the evidence and the arguments of the lawyers. After the close of evidence and
arguments, the jury receives legal instructions from the judge and then retires to
the jury room to deliberate, in private, about the defendant's guilt.
In the average criminal trial, if the defendant is found guilty, then the jury's
role is over. The trial judge reads the jury's verdict aloud in open court, the jury
is dismissed, and the case is scheduled for a sentencing hearing at a future date.
The trial judge then determines an appropriate sentence for the defendant (within
the range set by the statute) after receiving information about the defendant's back-
ground and circumstances.
In a death penalty case, however, the guilt phase of the trial is only a prelude
to the main event. In most instances a prosecutor will not ask for the death penalty
How American Juries Decide Death Penalty Cases 335
unless the evidence of the defendant's guilt is quite strong. Therefore, in a death
penalty case, it is often a foregone conclusion that the defendant will be found
guilty by the jury.
After the guilt phase of a capital trial, the trial reconvenes for what is called the
"sentencing phase." This phase is basically a completely separate trial, except that
the same parties, the same trial judge, and (in most states) the same jury are still
involved. At the guilt phase of the trial, the jury is told to focus only on whether
or not the defendant committed the crime. At the sentencing phase, the defendant's
guilt is no longer the issue; the only question is whether or not the defendant should
receive the death penalty. In all but two of the states where the death penalty exists,
the same jury that decided the defendant's guilt must go ahead and try to reach a
verdict (either final or advisory, depending on the state) about whether the defen-
dant should live or die.
Although the guilt phase and the sentencing phase of a capital trial may seem
to be similar in their basic procedures, they are quite different in substance. The
most important difference is in the role of the jury. In the guilt phase (as well as
in an average criminal trial), the jury's role is to be the finder of fact. The jury
decides who is telling the truth and what really happened. There is (at least in
theory) a true story about what happened, and maybe one or more false stories. It
is the jury's fundamental role to determine the truth.
At the sentencing phase of a capital trial, on the other hand, the jury is no longer
deciding a question that has a "true" or "false" answer. Instead, the jury is being
asked to decide a moral question that has no "true" or "false" answer: Is the
defendant a person who deserves to live or to die?
This is not a question of fact but one of moral judgment. There are no rules for
making this kind of decision, and the law gives the jury no definitive guidance.
The prosecution presents its evidence hi support of a death sentence, usually em-
phasizing the brutality of the defendant's crime; the defense presents its case for
mitigation, usually trying to explain how the defendant came to be the kind of
person he is. The trial judge instructs the jury about the factors to consider, but in
the end the jury is told to exercise its sound discretion and do whatever it believes
to be just. If the jury unanimously votes for a death sentence, then (in most states)
the trial judge must impose such a sentence. The trial judge's power to override
the jury's sentencing verdict is (in most states) extremely limited.
The Capital Jury Project
In 1990 a group of researchers from over a dozen different American universities

in the widespread fields of law, sociology, political science, psychology, and crim-
inology came together to begin a research project to interview jurors who had
served in death penalty cases. The Capital Jury Project is being funded by the
National Science Foundation of the U.S. government. We are now near the end of
our data collection, and we will soon have completed over one thousand juror
interviews.
The project is under way in more than a dozen states, representing more than
one-third of the states where the death penalty exists. The states were chosen in
order to permit useful comparisons based on different kinds of death penalty stat-
utes, as well as regional and demographic variations. Within each state our sample
includes all recent cases in which a jury was asked to decide whether or not to
impose a death sentence; half of our interviews come from cases in which the jury
voted for life, and half come from cases in which death was imposed. We interview
at least three of the jurors in each case.
The interviews, which are all based on the same data collection instrument and
protocol, cover the entire experience of the juror, from the jury selection phase
through the juror's emotional reactions after the trial ended. The interviews are
audiotaped and range in length from two to eight hours. The interview data are
being entered into a computer for quantitative analysis, and the audiotapes are
providing rich material for qualitative analysis.
Interim Findings of the Capital Jury Project
As an original member of the Capital Jury Project, with responsibility for the
project in my home state of Indiana, I am glad to have this chance to report some
of its interim findings. The quantitative findings I will report are based on the
completed sets of juror interviews from seven states; I will also refer to qualitative
information from juror interviews in other states, where data collection is still
ongoing.
My report will focus on two areas of interest. First, what specific factors exert
the greatest influence on jurors as they try to decide whether the defendant should
live or die? Second, how do jurors feel about the responsibility they bear for the
fate of the defendant, and how do those feelings affect their behavior?
Factors That Influence the Sentencing Decision
Perhaps the most important question we hope to explore asks which specific factors
most strongly influence the jury's sentencing decision. Because the jury is not given
a rigid legal formula for the decision but is free to exercise discretion, we are
curious about the factors that determine whether a defendant lives or dies. We hope
eventually to develop tentative models of jury decision making in capital cases,
which may also help us understand jury decision making in other kinds of cases.
So far, several observations can be made about this subject. The most extensive
analysis has been conducted by Ted Eisenberg of Cornell University, who super-
vised the juror interviews in South Carolina, and his research colleague Martin
Wells. Table 24-1 identifies the relative importance of various factors in the delib-
erations of over one hundred South Carolina jurors.
As can be seen from Table 24-1, where lower numbers represent greater amounts
of discussion about that factor, one of the most important issues for jurors—more
Table 24-1.
"How much did the discussion among the jurors [at the sentencing phase of the trial]
focus on the following topics?"
Mean in Mean in
life cases death cases
Factors about future dangerousness
Defendant's dangerousness in society 1.84 1.78
How likely to be a parole or pardon 1.66 2.15
How long before a parole or pardon 1.79 2.23
Prevent defendant from killing again 1.59 1.70
Factors about the crime
Defendant's role or responsibility 1.25 1.23
Defendant's motive for the crime 1.50 1.67
Planning or premeditation 1.68 1.54
Alcohol as a factor in crime 2.81 2.88
Drugs as a factor in crime 2.98 2.98
Mental illness as a factor in crime 2.55 2.99
Insanity as a factor in crime 2.95 2.43
Victim's role or responsibility 2.71 2.51
Innocence or helplessness of victim .70 1.78
Pain and suffering of victim .80 1.82
The way the victim was killed .52 1.37
Strength of the evidence of guilt .41 1.54
What punishment the law requires .75 1.76
What punishment the defendant deserved .74 1.49
Other factors
Defendant's background or upbringing 2.25 2.22
Defendant's history of crime/violence 2.11 2.10
Defendant's IQ or intelligence 2.20 2.33
Defendant's remorse or lack of it 2.16 1.94
Defendant's appearance in court 2.55 2.55
Defendant's dangerousness in prison 3.39 3.39
Death penalty as a deterrent to others 2.45 2.81
Reputation or character of victim 2.48 2.49
Loss or grief of victim's family 2.27 2.09
Punishment wanted by victim's family 2.86 3.16
Performance of the lawyers 1.98 1.96
Jurors' attitudes about death penalty 2.12 2.01
Jurors' feelings about victim's family 2.55 2.49
Jurors' feelings about defendant 2.30 2.40
Jurors' feelings about defendant's family 2.84 2.55
What religious beliefs require 2.93 2.85
What moral values require 2.49 2.34
What community feelings require 2.88 3.06
Similarity to other murders 3.35 3.39
*1 = great deal, 2 = fair amount, 3 = not much, 4 = not at all; N of South Carolina jurors ranged
from 104 to 114.
Source: Theodore Eisenberg and Martin T. Wells, "Deadly Confusion: Juror Instructions in Capital
Cases," 79 Cornell Law Review 1 (1993).
337
Table 24-2.
"How much did the discussion [about the defendant's guilt] among the jurors focus on
the following topics?"*
Great Fair Not Not at Nof

deal amount much all jurors
Defendant's dangerousness
if ever back in society 35.7% 26.4% 19.0% 18.9% (641)
Jurors' feelings about the
right punishment 49.7% 15.2% 11.0% 24.1% (630)
*Based on complete results from seven states.
Source: William J. Bowers, "The Capital Jury Project: Rationale, Design, and Preview of Early Find-
ings," 70 Indiana Law Journal 1043 (1995).
Table 24-3.
"After hearing the judge's instructions, did you believe that the law required you to
impose a death sentence if the evidence proved that ...?"*
Yes No Undecided N of jurors

Defendant would be
dangerous in the future 31.9% 66.6% 1.5% (652)
important than the defendant's criminal history, background and upbringing, and
remorse—is whether the defendant, if he is allowed to live, is likely to pose a
danger to society in the future. Most states provide for either life imprisonment or
a very long term of years in prison (for example, fifty years) as the alternative to
a death sentence. In many states, however, the jury is not told about the nature of
these alternative sentences. Therefore, the impact of the factor of "future danger-
ousness" depends on what jurors believe—rightly or wrongly—about the likeli-
hood that a defendant who is not sentenced to death will remain in prison for a
long time.
Table 24-2 shows that over 60 percent of the jurors we interviewed reported
discussing this factor "a great deal" or "a fair amount" even during the guilt
phase deliberations, at a time when they were not supposed to be thinking about
the defendant's sentence at all. Nearly 65 percent also reported discussing their
feelings about the right punishment during the same guilt phase deliberations.
Another measure of the importance of the "future dangerousness" factor ap-
pears in Table 24-3. Under the law of almost all states, a jury is never required to
impose a death sentence on a defendant; the trial judge instructs the jury that the
proper sentence in a capital case is always a matter of jury discretion. Yet 31.9
percent of the jurors we interviewed said that, based on their understanding of the
Table 24-4.
4
* After hearing all of the evidence [at the punishment phase of the trial,] did you believe
it proved that... ?"*
Yes No Undecided N of jurors

Defendant would be
dangerous in the future 75.6% 18.0% 6.4% (672)
judge's instructions, the law "required" a death sentence if the defendant would
be "dangerous in the future."
As Table 24-4 reveals, more than three out of four jurors did find that the
defendant would be "dangerous in the future." This figure may reflect the tendency
of jurors to underestimate how many years a defendant will serve in prison if not
given a death sentence. Jurors who underestimate the severity of alternative sen-
tences and worry about the defendant's "future dangerousness" tend to vote for
death (see Tables 24-5 and 24-6, North Carolina and South Carolina data). Results
similar to those in Table 24-6 have also been found by our researchers in California
and Florida; however, the difference in California was less significant because about
one out of three California jurors knew that a defendant not sentenced to death
would receive an alternative of life without parole. In South Carolina, less than 15
percent of the jurors were aware of this important fact.
To summarize, data from the Capital Jury Project reveal that one of the primary
influences on jury behavior in capital cases is the fear—often based on misunder-
standing—that a defendant who does not receive a death sentence might return to
society in a relatively short time and commit more crimes of violence. This finding,
which both Ted Eisenberg and Bill Bowers have reported in recently published
articles, was cited by the U.S. Supreme Court in the recent case of Simmons v.
South Carolina, 114 S.Ct. 2187 (1994). In Simmons, the Court held that it was a
violation of a capital defendant's constitutional rights for the trial judge to bar the
jury from receiving accurate information about alternatives to a death sentence.
Although the direct effect of the decision in Simmons is limited to South Carolina
capital cases, Simmons holds the promise that future Court decisions might reduce
the influence of the "future dangerousness" factor upon juries.
Juror Responsibility for the Defendant's Fate
Another issue that has emerged as crucial to understanding the decision making of
capital juries is the degree of responsibility that jurors feel for the fate of the
defendant. Based on my interviews with jurors in Indiana, I can report that in most
cases, jurors began their sentencing deliberations by discussing—often quite emo-
Table 24-5.
' 'How long did you think someone not given the death penalty for a capital murder in
this state usually spends in prison before returning to society?''
Less than 20 to 30 More than (Nof

20 years years 30 years jurors)
Voted for death 74 12 14 43

Voted for life 28 67 5 40
4
'When you were considering the punishment, were you concerned that [the defendant]
might get back into society someday, if not given the death penalty?"
Level of concern
Great or Slight or (N of jurors)
somewhat not at all
Voted for death 76 24 49

Voted for life 41 59 17
*Based on complete results from North Carolina only.

Source: James Luginbuhl and Julie Howe, "Discretion in Capital Sentencing Instructions: Guided or
Misguided?" 70 Indiana Law Journal 1161 (1995)
Table 24-6.
"How long did you think someone not given the
death penalty for a capital murder in this state
usually spends in prison before returning to
society?5' *
Mean in Mean in
life cases death cases
23.8 16.8 years

years
*Based on complete results from South Carolina only; N
of jurors = 86; difference between life and death cases is
statistically significant at the level of .001.
Source: Theodore Eisenberg and Martin T. Wells, "Deadly
Confusion: Juror Instructions in Capital Cases," 79 Cornell
Law Review 1 (1993).
Table 24-7.
"Rank the following from 'most' through 'least' responsible for [the defendant's]
punishment."*
Most-Least
1 2 3 4 5 (N)
Defendant—because his
conduct determined the
punishment 46.1 10.7 6.4 7.6 29.1 (605)
Law—states what punish-
ment applies 34.4 39.2 7.8 11.2 7.4 (605)
Jury—votes for sentence 8.8 23.3 38.8 25.5 3.6 (605)
Individual juror—since
jury's decision depends
on the vote of each
juror 6.4 13.7 26.8 29.4 23.6 (605)
Judge—imposes sentence 4.5 12.9 20.2 26.1 36.4 (605)
*Based on complete data from seven states.
tionally—whether they should have this responsibility at all. One juror said: "The
first thing we did was everybody just collapsed literally in each others' arms and
cried, knowing that we had to do that.... Somebody just said, what right do we
have to decide if somebody should live or die? And then we had a large discussion
about that, about whether we as people had that right."1
For obvious reasons, most average citizens who are pressed into service as jurors
in capital cases are extremely uncomfortable with the responsibility of making a
decision about whether to put a defendant to death. Jurors cope with these over-
whelming feelings in a variety of ways: Some try to joke about the situation or
otherwise distract themselves from thinking about it; some pray in an attempt to
find guidance from a higher authority; and some even turn to alcohol or other
similar diversions during the hours they are not required to be in the courtroom.
One of the most common reactions, however, is for jurors to look to "the law"
for guidance in making the sentencing decision. Even though "the law" does not
actually purport to tell the jury which sentence to choose, many jurors misinterpret
the trial judge's legal instructions and manage to convince themselves that "the
law" dictates a certain sentencing result. This apparently allows the jurors to avoid
feeling personally responsible for the sentence. As one Indiana juror described the
sentencing decision: "I think it more or less was a procedure. I had a feeling [the
judge] was giving us a procedure and we needed to go through these certain steps.
And then if all the pieces fit, then you have a responsibility to come back with a
death sentence."
Table 24-7 reveals that many of the jurors we interviewed managed to avoid
Table 24-8.
"Who was 'most responsible' for the defendant's sentence?"*
"Judge override" Jury verdict binding
Defendant 42.6% 47.3%

Law 36.8% 33.6%
Jury 7.1% 9.3%
Individual juror 3.2% 7.6%
Judge 10.3% 2.4%
(N of jurors) (155) (450)
*Based on complete data from seven states.
feeling personally responsible for the sentencing decision—despite the fact that the
trial judge directly instructed them that the sentencing decision rested in their dis-
cretion. The jurors were asked to rank, on a scale of 1 to 5, who was the "most"
(1) or "least" (5) responsible for the defendant's sentence.
Table 24-8 shows that the avoidance of personal responsibility is even greater
in those few states where the trial judge has the legal authority to override the
jury's sentencing verdict; in these "judge override" states, the "individual ju-
ror" ranked last in the jury's perception of responsibility for the defendant's sen-
tence.
At present, we cannot say whether capital jurors reach better sentencing de-
cisions when they feel personally responsible for those decisions. However, we
can speculate that avoidance of personal responsibility might have the effect of
making jurors more likely to choose a death sentence; it may be easier for jurors
to live with the knowledge that a defendant will be executed, based on their sen-
tencing verdict, if they do not feel they had freedom to choose otherwise. If this
speculation is correct, then the findings of the Capital Jury Project may establish
a need for our legal system to try to overcome this tendency among capital ju-
rors.
Conclusion
The Capital Jury Project is the most extensive research project of its kind that has
ever been undertaken in the United States. Although the findings reported here are
tentative, they represent the kinds of information we are gathering from our juror
interviews. Those of us who are part of the project are thankful for the opportunity
to participate in such an effort.
Appendix
Citations to Selected
Capital Jury Project Articles
SYMPOSIUM ISSUE: THE CAPITAL JURY PROJECT, 70 Indiana Law Journal no. 4
(1995) (contains Capital Jury Project articles by William Bowers, Austin Sarat, Joseph
Hoffmann, James Luginbuhl and Julie Howe, and Maria Sandys, along with commen-
taries by other jury researchers who are not part of the Capital Jury Project).
William Bowers, "Research Note," 27 Law & Society Review 157 (1993).
Theodore Eisenberg and Martin Wells, "Deadly Confusion: Juror Instructions in Capital
Cases/' 79 Cornell Law Review 1 (1993).
Austin Sarat, "Speaking of Death: Narratives of Violence in Capital Trials," 27 Law &
Society Review 19 (1993).
Note
1. This comment, and other juror comments on sentencing responsibility quoted in this
paper, appear in Joseph L. Hoffman, "Where's the Buck—Juror Misperception of Sentenc-
ing Responsibility in Death Penalty Cases," 70 Indiana LJ. 1137 (1995) (Capital Jury
Project Symposium Issue). See also Austin Sarat, "Violence, Representation, and Respon-
sibility in Capital Trials: The View From the Jury," 70 Indiana LJ. 1103 (1995) (Capital
Jury Project Symposium Issue); Maria Sandys, "Cross-Overs—Capital Jurors Who Change
Their Minds About the Punishment: A Litmus Test for Sentencing Guidelines," 70 Indiana
LJ. 1183 (1995) (Capital Jury Project Symposium Issue).
343
25
Innocence and the Death Penalty:

Assessing the Danger of
Mistaken Executions
No matter how careful courts are, the possibility of perjured testimony, mis-
taken honest testimony, and human error remain all too real. We have no way
of judging how many innocent persons have been executed, but we can be
certain that there were some.
Furman v. Georgia, 408 U.S. 238, 367-68 (1972) (Marshall, J., concurring)
I. Introduction
In 1972, when the Supreme Court ruled in Furman v. Georgia that the death
penalty as then applied was arbitrary and capricious and therefore unconstitutional,
a majority of the Justices expected that the adoption of narrowly crafted sentencing
procedures would protect against innocent persons being sentenced to death. Yet
the promise of Furman has not been fulfilled: innocent persons are still being
sentenced to death, and the chances are high that innocent persons have been or
will be executed.
No issue posed by capital punishment is more disturbing to the public than the
prospect that the government might execute an innocent person. A recent national
poll found that the number one concern raising doubts among voters regarding the
death penalty is the danger of a mistaken execution.1 Fifty-eight percent of voters
are disturbed that the death penalty might allow an innocent person to be executed.
Earlier this year, the Subcommittee on Civil and Constitutional Rights heard
testimony from four men who were released from prison after serving years on
death row—living proof that innocent people are sentenced to death.2 The hearing
raised two questions: (1) just how frequently are innocent persons convicted and
sentenced to death; and (2) what flaws in the system allow these injustices to occur?
In order to answer these questions, Subcommittee Chairman Don Edwards called
Reprinted from Staff Report, Subcommittee on Civil and Constitutional Rights, House Judiciary Com-
mittee 103d Congress, 1st Session, October 21, 1993. Some footnotes have been deleted, and the rest
renumbered. The staff notes that the report was prepared at the direction of Chairman Don Edwards
(D-Calif.) by the ' 'majority staff' and ' 'has not been reviewed or approved by other members of the
subcommittee."
344
Assessing the Danger of Mistaken Executions 345
upon the Death Penalty Information Center to compile information on cases in the
past twenty years where inmates had been released from death row after their
innocence had been acknowledged. This staff report is based on the research of
the Center.
Section II of the report briefly describes each of the 48 cases in the past twenty
years where a convicted person has been released from death row because of in-
nocence. Sections III and IV examine why the system of trials, appeals, and ex-
ecutive clemency fails to offer sufficient safeguards in protecting the innocent from
execution. The role of current legal protections is addressed by looking closely at
a few of the cases where death row inmates were later found to be innocent or
were executed with their guilt still in doubt. The report concludes that there is a
real danger of innocent people being executed in the United States.
II. Recent Cases Involving Innocent Persons

Sentenced to Death
The most conclusive evidence that innocent people are condemned to death under
modern death sentencing procedures comes from the surprisingly large number of
people whose convictions have been overturned and who have been freed from
death row. Four former death row inmates have been released from prison just this
year after their innocence became apparent: Kirk Bloodsworth, Federico Macias,
Walter McMillian, and Gregory Wilhoit.
At least 48 people have been released from prison after serving time on death
row since 1973 with significant evidence of their innocence.3 In 43 of these cases,
the defendant was subsequently acquitted, pardoned, or charges were dropped. In
three of the cases, a compromise was reached and the defendants were immediately
released upon pleading to a lesser offense. In the remaining two cases, one defen-
dant was released when the parole board became convinced of his innocence, and
the other was acquitted at a retrial of the capital charge but convicted of lesser
related charges. These five cases are indicated with an asterisk (*).
YEAR OF
RELEASE
1973
1. David Keaton Florida Conviction: 1971
Sentenced to death for murdering an off-duty deputy sheriff during a rob-
bery. Charges were dropped and Keaton was released after the actual killer
was convicted.
1975
2. Wilber Lee Florida Conviction: 1963
3. Freddie Pitts Florida Conviction: 1963
Lee and Pitts were convicted of a double murder and sentenced to death.
They were released when they received a full pardon from Governor Askew
because of their innocence. Another man had confessed to the killings.
1976
4. Thomas Gladish New Mexico Conviction: 1974
5. Richard Greer New Mexico Conviction: 1974
6. Ronald Keine New Mexico Conviction: 1974
7. Clarence Smith New Mexico Conviction: 1974
The four were convicted of murder, kidnapping, sodomy, and rape and were
sentenced to death. They were released after a drifter admitted to the killings
and a newspaper investigation uncovered lies by the prosecution's star wit-
ness.
1977
8. Delbert Tibbs Florida Conviction: 1974
Sentenced to death for the rape of a sixteen-year-old and the murder of her
companion. The conviction was overturned by the Florida Supreme Court
because the verdict was not supported by the weight of the evidence. Tibbs'
former prosecutor said that the original investigation had been tainted from
the beginning.
1978
9. Earl Charles Georgia Conviction: 1975
Convicted on two counts of murder and sentenced to death. Charles was
released when evidence was found that substantiated his alibi. After an
investigation, the district attorney announced that he would not retry the
case. Charles won a substantial settlement from city officials for misconduct
in the original investigation.
10. Jonathan Treadway Arizona Conviction: 1975
Convicted of sodomy and first degree murder of a six-year-old and sen-
tenced to death. He was acquitted of all charges at retrial by the jury after
5 pathologists testified that the victim probably died of natural causes and
that there was no evidence of sodomy.
1979
11. Gary Beeman Ohio Conviction: 1976
Convicted of aggravated murder and sentenced to death. Acquitted at the
retrial when evidence showed that the true killer was the main prosecution
witness at the first trial.
1980
12. Jerry Banks Georgia Conviction: 1975
Sentenced to death for two counts of murder. The conviction was overturned
because the prosecution knowingly withheld exculpatory evidence. Banks
committed suicide after his wife divorced him. His estate won a settlement
from the county for the benefit of his children.
13. Larry Hicks Indiana Conviction: 1978

Convicted on two counts of murder and sentenced to death, Hicks was
acquitted at the retrial when witnesses confirmed his alibi and when the
eyewitness testimony at the first trial was proved to have been perjured.
The Playboy Foundation supplied funds for the reinvestigation.
1981
14. Charles Ray Giddens Oklahoma Conviction: 1978
Conviction and death sentence reversed by the Oklahoma Court of Criminal
Appeals on the grounds of insufficient evidence. Thereafter, the charges
were dropped.
15. Michael Linder South Carolina Conviction: 1979
Linder was acquitted at retrial on the grounds of self-defense.
16. Johnny Ross Louisiana Conviction: 1975
Sentenced to death for rape, Ross was released when his blood type was
found to be inconsistent with that of the rapist's.
1982
17. Anibal Jarramillo Florida Conviction: 1981
Sentenced to death for two counts of first degree murder; released when the
Florida Supreme Court ruled the evidence did not sustain the conviction.
18. Lawyer Johnson Massachusetts Conviction: 1971
Sentenced to death for first degree murder. The charges were dropped when
a previously silent eyewitness came forward and implicated the state's chief
witness as the actual killer.
1986
19. Anthony Brown Florida Conviction: 1983
Convicted of first degree murder and sentenced to death. At the retrial, the
state's chief witness admitted that his testimony at the first trial had been
perjured and Brown was acquitted.
20. Neil Ferber Pennsylvania Conviction: 1982
Convicted of first degree murder and sentenced to death. He was released
at the request of the state's attorney when new evidence showed that the
conviction was based on the perjured testimony of a jail-house informant.
1987
21. Joseph Green Brown (Shabaka Waglini) Florida Conviction: 1974
Charges were dropped after the llth Circuit Court of Appeals ruled that
the prosecution had knowingly allowed false testimony to be introduced at
trial. At one point, Brown came within 13 hours of execution.
22. Perry Cobb Illinois Conviction: 1979
23. Darby Williams Illinois Conviction: 1979
Cobb and Williams were convicted and sentenced to death for a double
murder. They were acquitted at retrial when an assistant state attorney came
forward and destroyed the credibility of the state's chief witness.
24. Henry Drake* Georgia Conviction: 1977
Drake was resentenced to a life sentence at his second retrial. Six months
later, the parole board freed him, convinced he was exonerated by his al-
leged accomplice and by testimony from the medical examiner.
25. John Henry Knapp* Arizona Conviction: 1974

Knapp was originally sentenced to death for the arson murder of his two
children. He was released in 1987 after new evidence about the cause of
the fire prompted a judge to order a new trial. In 1991, his third trial resulted
in a hung jury. Knapp was again released in 1992 after an agreement with
the prosecutors in which he pleaded no contest to second degree murder.
He has steadfastly maintained his innocence.
26. Vernon McManus Texas Conviction: 1977
After a new trial was ordered, the prosecution dropped the charges when a
key prosecution witness refused to testify.
27. Anthony Ray Peek Florida Conviction: 1978
Convicted of murder and sentenced to death. His conviction was overturned
when expert testimony was shown to be false. He was acquitted at his
second retrial.
28. Juan Ramos Florida Conviction: 1983

Sentenced to death for rape and murder. The decision was vacated by the
Florida Supreme Court because of improper use of evidence. At his retrial,
he was acquitted.
29. Robert Wallace Georgia Conviction: 1980
Sentenced to death for the slaying of a police officer. The llth Circuit
ordered a retrial because Wallace had not been competent to stand trial. He
was acquitted at the retrial because it was found that the shooting was
accidental.
1988
30. Jerry Bigelow California Conviction: 1980
Convicted of murder and sentenced to death after acting as his own attorney.
His conviction was overturned by the California Supreme Court and he was
acquitted at the retrial.
31. Willie Brown Florida Conviction: 1983
32. Larry Troy Florida Conviction: 1983
Originally sentenced to death after being accused of stabbing a fellow pris-
oner, Brown and Troy were released when the evidence showed that the
main witness at the trial had perjured himself.
33. William lent* Florida Conviction: 1980

34. Earnest Miller* Florida Conviction: 1980
A federal district court ordered a new trial because of suppression of ex-
culpatory evidence. lent and Miller were released immediately after agree-
ing to plead guilty to second degree murder. They repudiated their plea
upon leaving the courtroom and were later awarded compensation by the
Pasco County Sheriff's Dept. because of official errors.
1989
35. Randall Dale Adams Texas Conviction: 1977
Adams was ordered to be released pending a new trial by the Texas Court
of Appeals. The prosecutors did not seek a new trial due to substantial
evidence of Adams' innocence. Subject of the movie The Thin Blue Line.
36. Jesse Keith Brown* South Carolina Conviction: 1983

The conviction was reversed twice by the state Supreme Court. At the third
trial, Brown was acquitted of the capital charge but convicted of related
robbery charges.
37. Robert Cox Florida Conviction: 1988
Released by a unanimous decision of the Florida Supreme Court on the
basis of insufficient evidence.
38. Timothy Hennis North Carolina Conviction: 1986

Convicted of three counts of murder and sentenced to death. The state
Supreme Court granted a retrial because of the use of inflammatory evi-
dence. At the retrial, Hennis was acquitted.
39. James Richardson Florida Conviction: 1968
Released after reexamination of the case by prosecutor Janet Reno, who
concluded Richardson was innocent.
1990
40. Clarence Brandley Texas Conviction: 1980
Awarded a new trial when evidence showed prosecutorial suppression of
exculpatory evidence and perjury by prosecution witnesses. All charges
were dropped. Brandley is the subject of the book White Lies by Nick
Davies.
41. Patrick Croy California Conviction: 1979

Conviction overturned by state Supreme Court because of improper jury
instructions. Acquitted at retrial after arguing self-defense.
42. John C. Skelton Texas Conviction: 1982

Convicted of killing a man by exploding dynamite in his pickup truck. The
conviction was overturned by the Texas Court of Criminal Appeals due to
insufficient evidence.
1991
43. Gary Nelson Georgia Conviction: 1980
Nelson was released after a review of the prosecutor's files revealed that
material information had been improperly withheld from the defense. The
district attorney acknowledged: "There is no material element of the state's
case in the original trial which has not subsequently been determined to be
impeached or contradicted."
44. Bradley P. Scott Florida Conviction: 1988
Convicted of murder ten years after the crime. On appeal, he was released
by the Florida Supreme Court because of insufficiency of the evidence.
1993
45. Kirk Bloods worth Maryland Conviction: 1984
Convicted and sentenced to death for the rape and murder of a young girl.
Bloodsworth was granted a new trial and given a life sentence. He was
released after subsequent DNA testing confirmed his innocence.
46. Federico M. Macias Texas Conviction: 1984
Convicted of murder, Macias was granted a federal writ of habeas corpus
because of ineffective assistance of counsel and possible innocence. A grand
jury refused to reindict because of lack of evidence.
47. Walter McMillian Alabama Conviction: 1988
McMillian's conviction was overturned by the Alabama Court of Criminal
Appeals and he was freed after three witnesses recanted their testimony and
prosecutors agreed case had been mishandled.
48. Gregory R. Wilhoit Oklahoma Conviction: 1987
Wilhoit was convicted of killing his estranged wife while she slept. He was
acquitted at a retrial after 11 forensic experts testified that a bite mark found
on his dead wife did not belong to him.
III. Where Did the System Break Down?
These 48 cases illustrate the flaws inherent in the death sentencing systems used
in the states. Some of these men were convicted on the basis of perjured testimony
or because the prosecutor improperly withheld exculpatory evidence. In other cases,
racial prejudice was a determining factor. In others, defense counsel failed to con-
duct the necessary investigation that would have disclosed exculpatory information.
Racial Prejudice: Clarence Brandley

The court unequivocally concludes that the color of Clarence Brandley's skin
was a substantial factor which pervaded all aspects of the State's capital pros-
ecution of him.
Judge Perry Pickett
Sometimes racial prejudice propels an innocent person into the role of despicable
convict. In 1980, a 16-year-old white girl named Cheryl Dee Ferguson was raped
and murdered at a Texas high school. Suspicion turned to the school's five janitors.
One of the janitors later testified that the police looked at Clarence Brandley, the
only black in the group, and said, "Since you're the nigger, you're elected."4
Brandley was convicted and sentenced to death by an all-white jury after two
trails. The prosecutor used his peremptory strikes to eliminate all blacks in the jury
pool. Eleven months after the conviction, Brandley's attorneys learned that 166 of
the 309 exhibits used at trial, many of which offered grounds for appeal, had
vanished.
After six years of fruitless appeals and civil rights demonstrations in support of
Brandley, the Texas Court of Criminal Appeals ordered an evidentiary hearing to
investigate all the allegations that had come to light. The presiding judge wrote a
stinging condemnation of the procedures used in Brandley's case, and stated that
"The court unequivocally concludes that the color of Clarence Brandley's skin was
a substantial factor which pervaded all aspects of the State's capital prosecution of
him." Brandley was eventually released in 1990 and all charges were dismissed.
It took many years and a tremendous effort by outside counsel, civil rights
organizers, special investigators, and the media to save Brandley's life. For others
on death row, it is nearly impossible to even get a hearing on a claim of innocence.
The Pressure to Prosecute: Walter McMillian

I was wrenched from my family, from my children, from my grandchildren,
from my friends, from my work that I loved, and was placed in an isolation
cell, the size of a shoe box, with no sunlight, no companionship, and no work
for nearly six years. Every minute of every day, I knew I was innocent....
Walter McMillian, Written testimony at
Subcommittee Hearing, July 23, 1993
In 1986, in the small town of Monroeville, Alabama, an 18-year-old white woman

was shot to death in the dry cleaners around 10 AM. Although the town was shocked
by the murder, no one was arrested for eight months. Johnny D. (Walter) McMillian
was a black man who lived in the next town. He had been dating a white woman
and his son had married a white woman, none of which made McMillian popular
in Monroeville.5
On the day of the murder, McMillian was at a fish fry with his friends and
relatives. Many of these people gave testimony at trial that McMillian could not
have committed the murder of Ronda Morrison because he was with them all day.
Nevertheless, he was arrested, tried and convicted of the murder. Indeed, McMillian
was placed on death row upon his arrest, well before his trial. No physical evidence
linked him to the crime but three people testifying at his trail connected him with
the murder. All three witnesses received favors from the state for their incriminating
testimony.6 All three later recanted their testimony, including the only "eyewit-
ness," who stated that he was pressured by the prosecutors to implicate McMillian
in the crime.
The jury in the trial recommended a life sentence for McMillian but the judge
overruled this recommendation and sentenced him to death. His case went through
four rounds of appeal, all of which were denied. New attorneys, not paid by the
State of Alabama, voluntarily took over the case and eventually found that the
prosecutors had illegally withheld evidence which would have pointed to Mc-
Millian's innocence. A story about the case appeared on CBS-TV's program, 60
Minutes, on Nov. 22, 1992. Finally, the State agreed to investigate its earlier han-
dling of the case and then admitted that a grave mistake had been made.7 Mr.
McMillian was freed into the welcoming arms of his family and friends on March
3, 1993.
Inadequate Counsel: Federico Macias

Federico Macias' court-appointed lawyer did virtually nothing to prepare the case
for trial. Macias was sentenced to death in Texas in 1984. Two days before his
scheduled execution, Macias received a stay. New counsel from the large Skadden,
Arps law firm had entered the case and devoted to it the firm's considerable re-
sources and expertise. Mr. Macias' conviction was overturned via a federal writ of
habeas corpus, which was upheld by a unanimous panel of the U.S. Court of
Appeals for the Fifth Circuit in December, 1992. The court found that not only
was Macias' original counsel grossly ineffective, but also that he had missed con-
siderable evidence pointing to Macias' innocence. The court concluded:
We are left with the firm conviction that Macias was denied his constitutional right
to adequate counsel in a capital case in which actual innocence was a close question.
The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got
only what it paid for.8
Thereafter, Macias was freed when the grand jury, which now had access to the
evidence developed by the Skadden, Arps attorneys, refused to re-indict him.
There are many similar stories of defendants who have spent years on death
row, some coming within hours of their execution, only to be released by the courts
with all charges dropped. What is noteworthy about the cases outlined above is
that they are very recent examples which illustrate that mistaken death sentences
are not a relic of the past.
Official Misconduct: Chance and Powell

While Clarence Chance and Benny Powell were not sentenced to death, their con-
victions for murder illustrate the dangers of overzealous police work. They were
released from prison last year after Jim McCloskey of Centurion Ministries took
on their case and demonstrated their innocence. The City of Los Angeles awarded
them $7 million and the judge termed the police department's conduct "reprehen-
sible" while apologizing for the "gross injustices" that occurred.9
IV. Are the Protections in the Legal System Adequate to

Prevent Executing Innocent Persons?
To some degree, the cases discussed in Section HI illustrate the inherent fallibility
of the criminal justice system. (Sensational murder cases often tend, however, to
amplify the flaws of the system.) Mistakes and even occasional misconduct are to
be expected. The cases outlined above might convey a reassuring impression that,
although mistakes are made, the system of appeals and reviews will ferret out such
cases prior to execution. In one sense, that is occasionally true: the system of
appeals sometimes allows for correction of factual errors.
But there is another sense in which these cases illustrate the inadequacies of the
system. These men were found innocent despite the system and only as a result of
extraordinary efforts not generally available to death row defendants.
Indeed, in some cases, these men were found innocent as a result of sheer luck.
In the case of Walter McMillian, his volunteer outside counsel had obtained from
the prosecutors an audio tape of one of the key witnesses' statements incriminating
Mr. McMillian. After listening to the statement, the attorney flipped the tape over
to see if anything was on the other side. It was only then that he heard the same
witness complaining that he was being pressured to frame Mr. McMillian.10 With
that fortuitous break, the whole case against McMillian began to fall apart.
Similarly, proving the innocence of Kirk Bloodsworth was more a matter of
chance than the orderly working of the appeals' process. Only a scientific break-
through, and an appellate lawyer's initiative in trying it, after years of failed ap-
peals, allowed Bloodsworth to prove his innocence. And even then, the prosecutor
was not bound under Maryland law to admit this new evidence.11
Furthermore, not every death row inmate is afforded, after conviction, the quality
of counsel and resources which Walter McMillian and Federico Macias were for-
tunate to have during their post-conviction proceedings. Many of those on death
row go for years without any attorney at all.
Most of the releases from death row over the past twenty years came only after
many years and many failed appeals. The average length of time between convic-
tion and release was almost 7 years for the 48 death row inmates released since
1970.
Innocence Is Not Generally Reviewed

Too often, the reviews afforded death row inmates on appeal and habeas corpus
simply do not offer a meaningful opportunity to present claims of innocence. As
will be discussed more fully below, in many states there simply is no formal pro-
cedure for hearing new evidence of a defendant's innocence prior to his execution
date. After trial, the legal system becomes locked in a battle over procedural issues
rather than a reexamination of guilt or innocence. The all-night struggle to stay the
execution of Leonel Herrera in 1992, even after the U.S. Supreme Court had agreed
to hear his constitutional challenge, is an example of how much pressure is exerted
to proceed with executions.12
Accounts which report that a particular case has been appealed numerous times
before many judges may be misleading. In fact, most often, procedural issues,
rather than the defendant's innocence are being argued and reviewed in these ap-
peals. For example, when Roger Keith Coleman was executed in Virginia last year,
it was reported that his last appeal to the Supreme Court "was Coleman's 16th
round in court."13 However, the Supreme Court had earlier declared that Coleman's
constitutional claims were barred from any review in federal court because his
prior attorneys had filed an appeal too late in 1986.14 His evidence was similarly
excluded from review in state court as well. Instead, Coleman's innocence was
debated only in the news media and considerable doubt concerning his guilt went
with him to his execution.15
This section will examine some of the means, both extra-judicial and within the
system, by which the cases of innocence are uncovered. But first, it is necessary
to clarify what is meant in this report by the term "innocent."
Meaning of "Innocent"
In the criminal justice system, defendants are presumed to be innocent until proven
guilty beyond a reasonable doubt. Thus, a person is fully entitled to a claim of
innocence if charges are not brought against him or if the charges brought are not
proven. A person may be guilty of other crimes or there may be some who still
insist he is guilty, but with respect to the charge in question, he is innocent.
In some cases, the investigative process does conclusively determine innocence.
A piece of evidence may demonstrate that a suspect or defendant could not have
been the perpetrator, or someone else confesses, eliminating other suspects. Under
the law, there is no distinction between the definitively innocent and those found
innocent after a trial but about whom there may remain a lingering doubt.
Extra-Judicial Redress
In the absence of adequate legal mechanisms, the most serious errors in the criminal
justice system are sometimes uncovered as a result of such extra-judicial factors as
the media and the development of new scientific techniques. These following cases
illustrate the randomness of how the legal system works.
Role of the Media: Randall Dale Adams
One unpredictable element that can affect whether an innocent person is released
is the involvement of the media. In Randall Dale Adams' case, film producer Errol
Morris went to Texas to make a documentary on Dr. James Grigson, the notorious
"Dr. Death." Grigson would claim 100% certainty for his courtroom predictions
that a particular defendant would kill again, and he made such a prediction about
Randall Adams.
In the course of his investigation of Grigson, Morris became interested in Ad-
ams' plight and helped unearth layers of prosecutorial misconduct in that case. He
also obtained on tape a virtual confession by another person. Moms' movie, The
Thin Blue Line, told Randall Adams' story in a way no one had seen before. The
movie was released in 1988 and Adams was freed the following year.
Role of the Media: Other Cases
Similarly, all charges and death sentences against Thomas Gladish, Richard Greer,
Ronald Keine, and Clarence Smith were dropped in 1976 thanks, in part, to the
Detroit News investigation of lies told by the prosecution's star witness.16
Walter McMillian's case was featured on 60 Minutes shortly before his release.
So was the case of Clarence Brandley. Brandley was also aided by the civil rights
community, which organized opposition to his execution. Supporters were able to
raise $80,000 for his defense. Obviously, these advantages are not available to
everyone on death row who may have been wrongly convicted.
Unpredictable Emergence of New Scientific Tests:
Kirk Bloodsworth
In 1984, a 9-year-old girl named Dawn Hamilton was raped and murdered in
Baltimore County, Maryland. Two young boys and one adult said they had seen
Dawn with a man prior to her death. They thought that Kirk Bloodsworth looked
like the man who had been with her. Again, no physical evidence linked Bloods-
worth to the crime. He was convicted and sentenced to death because he looked
like someone who might have committed the crime.17
There was some evidence taken from the crime scene, but it gave the police no
clue as to who the killer was. Tests were conducted on the girl's underwear, but
the tests were not sophisticated enough at that time to detect and identify DNA
material from the likely assailant. Fortunately for Mr. Bloodsworth, he was granted
a new trial when a judge ruled that the state had withheld evidence from the defense
attorneys about another suspect. This time he received a life sentence. Bloodsworth,
however, continued to maintain his innocence and the life sentence gave him the
time to prove it.18
When a new volunteer lawyer agreed to look into Bloodsworth's case, he de-
cided to try one more time to have the evidence in the case tested. He sent the
underwear to a laboratory in California that used newly developed DNA tech-
niques. The defense attorney was astonished when he learned that there was test-
able DNA material. The tests showed that the semen stain on the underwear
could not possibly have come from Mr. Bloodsworth. The prosecution then
agreed that if these results could be duplicated by the FBI's crime laboratory, it
would consent to Mr. Bloodsworth's release. On Friday, June 25, the FBI's re-
sults affirmed what Bloodsworth had been saying all along: he was innocent of
all charges. On June 28, he was released by order of the court from the Mary-
land State Correctional facility in Jessup, after nine years in prison—two of
which were on death row.
The next section of the report will look at the traditional avenues which an
innocent defendant can use to prevent or overturn a sentence of death.
Trial Is Critical, but Often Hampered by

Poor Legal Representation
The trial is obviously the critical time for the defendant to make his or her case
for innocence. Unfortunately, the manner in which defense counsel are selected
and compensated for death penalty trials does not always protect the defendant's
rights at this pivotal time. Most defendants facing the death penalty cannot afford
to hire their own attorney and so the state is required to provide them with one.
Some states have public defender offices staffed by attorneys trained to handle such
cases. In other states, attorneys are appointed from the local community and the
quality of representation is spotty.19
Federico Macias is certainly not alone with respect to ineffective counsel. The
stories regarding deficient representation in death penalty cases are rampant.20 The
Subcommittee has held several hearings documenting this problem.21 Although
death penalty law is a highly specialized and complex form of litigation, there is
no guarantee that the attorney appointed to this critical role will have the necessary
expertise. There is no independent appointing authority to select only qualified
counsel for these cases and attorneys are frequently underpaid and understaffed,
with few resources for this critical undertaking.
Proving Innocence After Trial: Defendant's Burden

Before trial, the arrested defendant need do nothing to prove his innocence. The
burden is completely on the prosecution to prove that the individual is guilty of
the crimes charged beyond a reasonable doubt. However, after someone has been
found guilty, the presumption shifts in favor of the state. The burden is now on
the defendant to prove to a court that something went wrong in arriving at the
determination of guilt. It is no longer enough to raise a reasonable doubt. To
overturn a conviction, the evidence must be compelling, and violations of consti-
tutional rights by the state will be forgiven as long as they were "harmless."22
The Appellate Process

If an innocent defendant is convicted, he generally has little time to collect and
present new evidence which might reverse his conviction. In Texas, for example,
a defendant has only 30 days after his conviction to present new evidence, and the
state strictly adheres to that rule. Sixteen other states also require that a new trial
motion based on new evidence be filed within 60 days of judgment. Eighteen
jurisdictions have time limits between 1 and 3 years, and only 9 states have no
time limits.23
Thus, even a compelling claim of innocence, such as a videotape of someone
else committing the crime (as recently hypothesized by Justice Anthony Kennedy
in oral arguments of Herrera,24 discussed below), does not guarantee a review in
state or federal court.
All death row inmates are assured representation to make one direct appeal in
their state courts. If that appeal is denied, representation is no longer assured.25 In

states like Texas and California with large death rows, many defendants sentenced
to death are not currently being represented by any attorney. Obviously, such a
defendant's opportunity to uncover evidence to prove his innocence is greatly re-
duced, even assuming a court would hear the evidence if it was found.
Habeas Corpus: The Great Writ

When someone has been unjustly convicted under circumstances similar to those
described above, he can challenge that conviction in federal court through the writ
of habeas corpus. Although numerous legislative proposals to limit habeas corpus
in the past few years have failed, the opportunity for using this writ has already
been stringently narrowed by recent Supreme Court decisions. The following cases
illustrate some of the barriers erected by the Court to claims of innocence in habeas
cases.
Leonel Herrera
The Supreme Court has denied habeas review of claims from prisoners on death
row with persuasive, newly discovered evidence of their innocence. Leonel Herrera
presented affidavits and positive polygraph results from a variety of witnesses,
including an eyewitness to the murder and a former Texas state judge, both of
whom stated that someone else had committed the crime. However, the Supreme
Court ruled that Herrera was not entitled to a federal hearing on this evidence and
was told that his only recourse was the clemency process of the state of Texas.
Herrera was executed in May of this year.
Gary Graham
Death row inmates who claim their innocence are therefore often forced to rely on
procedural claims. But those, too, are being foreclosed by the Supreme Court.
For example, Gary Graham's case has gained national attention because he has
made a substantial claim of innocence. However, the barriers to getting such new
evidence before the courts has necessitated that the defense pursue other claims
which only affect his sentence. Death penalty attorneys realize that proving their
client innocent after he is executed is of no value to him.
But when Gary Graham claimed that the Texas death penalty procedures did
not allow consideration of his youth at the time of the crime, the U.S. Supreme
Court refused to even consider the question. The Court said that even if he was
right in his claim, ruling in his favor would create a "new rule" of law and no
such rule could apply retroactively to his case.26
Another recent narrowing of the writ requires federal courts to reject all claims
if the proper procedures were not followed by the defendant in state court. Roger
Coleman, for example, filed his Virginia state appeal three days late and this error
by his attorneys barred any consideration of his federal constitutional claims.27
Coleman was executed without a federal court hearing his claim. Similarly, if a
claim is not raised on a defendant's first habeas petition, the claim (with rare
exceptions) is automatically rejected, even if the government withheld the very

evidence the defendant would have needed to raise the claim in his first petition.28
Clemency
For the innocent defendant, the last avenue of relief is clemency from the executive
branch. All death penalty states have some form of pardon power vested either in
the governor or in a board of review. However, clemencies in death penalty cases
are extremely rare. Since the death penalty was re-instated in 1976, 4,800 death
sentences have been imposed but less than three dozen clemencies have been
granted on defendants' petitions.29 In Texas, the state with the greatest number of
executions, no clemencies have been granted.
The procedures for clemency are as varied as the states. In many states the
governor has the final say on granting a commutation of a death sentence. Since
the governor is an elected official and since there is virtually no review of his or
her decision, there is the danger that political motivations can influence the deci-
sions.30 Many of the commutations which have been granted in the past 20 years
were granted by governors only as they were leaving office.
Other arrangements are also subject to political pressures. In Texas, a board
must first recommend a clemency to the governor. However, the board is appointed
by the governor and is not required to meet or hear testimony to review a case.
Recently, a judge in Texas held that this lack of process violated Gary Graham's
constitutional rights and ordered a hearing to review his claims of innocence.31
In Nebraska, Nevada and Florida, the chief state prosecutor sits on the clemency
review board. And generally, there are no procedural guarantees to assure that a
claim of innocence which has been barred review by the courts will be fully aired
for clemency. As Justice Blackmun recently pointed out:
Whatever procedures a State might adopt to hear actual innocence claims, one thing
is certain: The possibility of executive clemency is not sufficient to satisfy the re-
quirements of the Eighth and Fourteenth Amendments.32
Thus, the prospect of clemency provides only the thinnest thread of hope and
is certainly no guarantee against the execution of an innocent individual.
IV. Conclusion
It is an inescapable fact of our criminal justice system that innocent people are too
often convicted of crimes. Sometimes only many years later, in the course of a
defendant's appeals, or as a result of extra-legal developments, new evidence will
emerge which clearly demonstrates that the wrong person was prosecuted and con-
victed of a crime.
Americans are justifiably concerned about the possibility that an innocent person
may be executed. Capital punishment in the United States today provides no reli-
able safeguards against this danger. Errors can and have been made repeatedly in
the trial of death penalty cases because of poor representation, racial prejudice,
prosecutorial misconduct, or simply the presentation of erroneous evidence. Once
convicted, a death row inmate faces serious obstacles in convincing any tribunal
that he is innocent.
The cases discussed in this report are the ones in which innocence was uncov-
ered before execution. Once an execution occurs, the small group of lawyers who
handle post-conviction proceedings in death penalty cases in the United States
move on to the next crisis. Investigation of innocence ends after execution. If an
innocent person was among the 222 people executed in the United States since
Furman, nobody in the legal system is any longer paying attention.
Many death penalty convictions and sentences are overturned on appeal, but too
frequently the discovery of error is the result of finding expert appellate counsel,
a sympathetic judge willing to waive procedural barriers, and a compelling set of
facts which can overcome the presumption of guilt. Not all of the convicted death
row inmates are likely to have these opportunities.
Judging by past experience, a substantial number of death row inmates are in-
deed innocent and there is a high risk that some of them will be executed. The
danger is inherent in the punishment itself and the fallibility of human nature. The
danger is enhanced by the failure to provide adequate counsel and the narrowing
of the opportunities to raise the issue of innocence on appeal. Once an execution
occurs, the error is final.
Notes
1. See Sentencing for Life: Americans Embrace Alternatives to the Death Penalty 6,
Death Penalty Information Center (April, 1993).
2. Hearings on innocence and the death penalty were also held before the Senate Ju-
diciary Committee on April 1, 1993.
3. The principal sources for this information are news articles, M. Radelet, H. Bedau,
& C. Putnam, In Spite of Innocence (1992), H. Bedau & M. Radelet, Miscarriages of Justice
in Potentially Capital Cases, 40 Stanford L. Rev. 21 (1987), and the files of the National
Coalition to Abolish the Death Penalty.
4. M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 121 (1992).
5. See P. Applebome, Black Man Freed After Years on Death Row in Alabama, The
New York Times, Mar. 3, 1993, at Al.
6. See Five Years on Death Row, The Washington Post, Mar. 6, 1993, at A20.
7. See P. Applebome, note 5 above, at fill.
8. Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).
9. M. Lacey & S. Hubler, LA. Awards 2 Freed Inmates $7 Million, The Los Angeles
Times, Jan. 27, 1993, at Bl.
10. C. Carmody, The Brady Rule: Is It Working? The National Law Journal, May 17,
1993, at 1.
11. See, e.g., S. Skowron, New DNA Testing Provides Hope for Some Inmates, The Los
Angeles Times, July 4, 1993, at A26 (Maryland's time limit for admitting new evidence is
one year after the judgment becomes final).
12. See R. Marcus, Execution Stalled on llth-Hour Claim of Innocence, The Washington
Post, Feb. 25, 1992, at A3: "Lawyers for the state of Texas and a death row prisoner engaged
in a last-minute sprint through the federal court system over the execution, which had been
scheduled to take place before sunrise." The execution did not take place that night because
a Texas state court decided to issue a stay. Herrera's case was argued before the Supreme
Court on Oct. 7, 1992. The Court decided Herrera was not entitled to a hearing on his
innocence claims, and he was executed in May, 1993.
13. M. Allen, Coleman Is Electrocuted, Richmond Times-Dispatch, May 21, 1992, at
All.
14. Coleman v. Thompson, 111 S. Ct. 2546 (1991).
15. See, e.g., J. Smolowe, Must This Man Die?, Time Magazine, May 18, 1992, at 41
(cover story).
16. See Radelet, et al., supra note 3 at 56-57.
17. See G. Small, Nine-year Prison "Nightmare" Conies to an End as Accused Killer
Is Exonerated, The Baltimore Sun, June 29, 1993, at 1A.
18. See also P. Valentine, Jailed for Murder, Freed by DNA, The Washington Post, June
29, 1993, at Al.
19. See A Study of Representation in Capital Cases in Texas, The Spangenberg Group
(1993), at vi ("the rate of compensation provided to court-appointed attorneys in capital
cases in absurdly low and does not cover the cost of providing representation").
20. See, e.g., S. Bright, In Defense of Life: Enforcing the Bill of Rights on Behalf of
Poor, Minority and Disadvantaged Persons Facing the Death Penalty, 51 Missouri L. Rev.
849 (1992).
21. See Subcommittee hearings May 22, June 27, and July 17, 1991.
22. See, e.g., Brecht v. Abrahamson, 123 L.Ed.2d 353 (1992) (relaxing the standard in
federal habeas for finding error to be harmless).
23. See Herrera v. Collins, slip op. No. 91-7328 (Jan. 25, 1993), at 19-20, n.9-11.
24. See D. Savage, Court Urged to OK Execution Despite Evidence, The Los Angeles
Times, Oct. 8, 1992, at Al: " 'Let's say you have a videotape which conclusively shows
the suspect is innocent,' said Justice Anthony M. Kennedy, addressing the state's attorney.
'Is it a federal constitutional violation to execute that person?'
" 'No. It would not be violative of the Constitution,' replied Texas Assistant Attorney
Gen. Margaret P. Griffey."
25. See Murray v. Giarratano, 492 U.S. 1 (1989) (states not required to provide counsel
to indigent death row prisoners after direct appeal). Once a case moves into federal habeas
litigation, federal law allows for the appointment of counsel but crucial issues may have
been waived before then.
26. Graham v. Collins, 122 L.Ed.2d 260 (1993).
27. Coleman v. Thompson, 111 S. Ct. 2546 (1991).
28. See McCleskey v. Zant, 111 S. Ct. 1454 (1991).
29. See Clemency: Fail-safe System or Political Football?, The Oakland Tribune, June
27, 1993 (41 additional clemencies have been granted for judicial expediency, to save time
and expense after court rulings requiring a new sentencing).
30. See, e.g., J. Berry, Governors Shy Away from Death Row Pardons, The Dallas Morn-
ing News, Aug. 15, 1993, at U.
31. See New Turns in Case of a Texan Scheduled to Die, The New York Times, Aug.
13, 1993 (stay was ordered pending appeal of judge's order).
32. Herrera v. Collins, slip op. No. 91-7328-Dissent (Jan. 25, 1993) (emphasis in orig-
inal), at 11.
26
An Appeal for Clemency: The Case of

Harold Lament Otey
LARRY MYERS
In 1978 in Omaha, Nebraska, Harold Lament "Will" Otey, a twenty-seven-year-

old black male, was convicted by a jury of the rape and murder of Jane McManus.
Ms. McManus, a single white woman in her early twenties, was alone in her home
the night she was raped and stabbed. Harold Otey was a transient racetrack worker
living in Omaha for only a few months during the horse racing season.
After a separate sentencing hearing to weigh the aggravating and mitigating
evidence, a three-judge panel sentenced Otey to die in the electric chair. Otey spent
the next thirteen years on death row at the Nebraska State Penitentiary in Lincoln
as his case was appealed through the state and federal court systems.
The legal appeals raised questions about the fairness of the trial and particularly
the effectiveness of his counsel. During the trial, Otey was represented by a young
court-appointed public defender only two years out of law school who was busy
trying other jury cases and had only three weeks to prepare for Otey's trial. There
also were questions about the fairness of the sentence. Otey had no prior criminal
convictions. Even though it was required by state statute, the three-judge panel that
sentenced Otey never conducted a proportionality review comparing Otey's case
with prior homicide cases. The issue of race also cast a general cloud of doubt
over the fairness of Otey's sentence. Otey was not only black but also an "out-
sider" and a "drifter." The victim was white. The jury consisted of eleven whites
and one black. As Otey sat on Nebraska's death row, studies from several other
states conclusively demonstrated that black offenders who murder white victims
are more likely to receive more severe sentences than either black or white of-
fenders who murder black victims.
By October 1990, after twelve years of legal battles in the state and federal
courts, Harold Otey had exhausted his judicial remedies. The Nebraska Supreme
Court set December 5, 1990, as his execution date, and the prospects for Harold
Otey were dimming. His legal options were running out.
The author wishes to thank Shawn Renner and Scott Wesley for their assistance in drafting this paper.
361
Precedent and Preparations for Otey's Clemency Hearing
The legal system provided one other option for Otey—he could petition the State
Board of Pardons to commute his sentence to life imprisonment. While a pardon
is the best-known form of clemency, clemency actually consists of a menu of
powers, each of which either postpones or cancels all or part of a criminal convic-
tion or sentence. The most relevant form of clemency for a person sentenced to
death is commutation, in which the clemency authority reduces a death sentence
to some lesser penalty, most commonly life in prison.
In the majority of states the clemency power is exercised by the governor. In a
few states the governor is required to consult with some form of board composed
of executive department employees, but even then the final decision is nearly al-
ways left by law to the governor alone. Nebraska is an exception. Since a revision
of the Nebraska Constitution in 1920, Nebraska's clemency power has been vested
in a three-person Board of Pardons consisting of the governor, secretary of state,
and attorney general. Nebraska clemency law also differs from the norm because
it imposes an automatic stay of execution upon the filing of a clemency application
by a death-sentenced individual that prohibits execution of the sentence until the
application has been considered.
Nebraska is a conservative and relatively peaceful state. Historically, a majority
of Nebraska citizens favored the death penalty in theory, but as a practical matter
executions have rarely been carried out. In 1990, as Otey's clemency request was
being prepared, Nebraska had not executed anyone since the infamous multiple
murderer Charles Starkweather in 1959. Only four men had been executed since
1930; after the Nebraska Board of Pardons was created in 1920, nearly half of all
condemned prisoners who applied to the board had been granted commutations to
life imprisonment. In 1979 the Nebraska legislature voted to repeal the death pen-
alty, but the governor vetoed the bill.
In the fall of 1990 the imminence of Harold Otey's execution date coupled with
the apparent exhaustion of realistic legal remedies caused quite a stir in the press.
Candidates for the offices of governor and attorney general (1990 was an election
year) had proclaimed their support for the death penalty in debates and in adver-
tisements designed to demonstrate that they were "tough on crime." The Omaha
World-Herald, the state's largest newspaper, had always been vociferously pro-
death penalty and had been particularly vehement in its editorials urging Otey's
execution. On the other hand, the state's second-largest newspaper, the Lincoln
Journal Star, opposed capital punishment in its editorials.
There is no authority for appointment of counsel by the Board of Pardons for
inmates seeking executive clemency. Thus, any lawyer representing Otey in the
clemency process would have to do so without pay, and with the prospect of
bearing substantial out-of-pocket expenses. In the fall of 1990 two attorneys—
Shawn Renner and Victor Covalt—volunteered to represent Otey for free. Renner
practiced commercial litigation at a large law firm in Lincoln. He had also done
volunteer work on some death penalty cases and was on the Steering Committee
of Nebraskans Against the Death Penalty (NADP). Vic Covalt, who practiced bank-
An Appeal for Clemency 363
ruptcy law at another large firm in Lincoln, was one of Renner's friends. Covalt
initially declined Renner's request that he serve as Otey's official attorney at the
clemency hearing, pointing out that he knew very little about criminal law or the
clemency process in particular. But by mid-November, with the execution date just
three weeks away, Covalt agreed to represent Otey before the Board of Pardons.
Substantial precedent existed to support Otey's request for mercy. Seventy death
penalty commutations in ten different states had been granted in the prior two
decades, with the reasons for these decisions falling under nine general headings:
(1) The offender's innocence had been established, (2) the offender's guilt was in
serious doubt, (3) equity in punishment among equally guilty codefendants required
clemency, (4) the public had shown conclusively, albeit indirectly, that it did not
want any death sentences to be carried out, (5) a divided vote by the appellate
court upholding the trial court left disturbing doubts about the lawfulness of the
death sentence, (6) the statutes under which the defendant was sentenced to death
were unconstitutional, (7) mitigating circumstances affecting the death row priso-
ner's status warranted commutation to a lesser sentence, (8) while on death row
the defendant had been rehabilitated, or (9) the governor believed the death penalty
was morally unjustified.
Harold Otey was a strong candidate for commutation under several of these
criteria. Although he had originally confessed to the murder under intense police
interrogation, he later recanted the confession and had since steadfastly maintained
his innocence. Since four of the ten Eighth Circuit judges had found that Otey had
received ineffective representation at trial, Renner and Covalt could raise at least
some questions about his guilt, the unfairness of his trial, and the disparity of his
sentence.
In addition, there was substantial evidence showing rehabilitation. By all ac-
counts, including his own, Otey had arrived on death row angry and arrogant. But
over the years he had embarked on a disciplined, self-directed educational program.
He had converted to Islam; he had read widely, studing literature and philosophy
(especially logic) with several university professors. Otey had also written poetry,
publishing three books of poems with assistance from several foundation grants.
With this intellectual growth had come a level of social maturation as well. Through
his studies, poetry, and letter writing, Harold Otey had earned a wide circle of
friends who wanted to testify about the beneficial impact he had had upon their
lives and to ask the Board of Pardons to spare his life.
The clemency decision would be made by three high-ranking elected officials,
elected in November 1990, and the political implications of their decision could
not be ignored. All three were white, middle-aged males, attorneys by profession,
and raised in small Nebraska towns. All three were married and had children.
Allen Beermann (age fifty), a Republican, was secretary of state, a lifelong
Nebraskan, and a Creighton University Law School graduate. Although he had
been secretary of state for twenty years, his position concerning capital punishment
was not known.
Ben Nelson, (age forty-nine), the new governor, had won the election by a
narrow margin. A conservative Democrat, born and raised in McCook, a small
town in western Nebraska, Nelson had graduated from the University of Nebraska
and Nebraska College of Law, becoming state insurance commissioner and later
the president of a large Nebraska insurance company. Although this was Nelson's
first elective office, he was no political novice: For two decades he had been ac-
tively involved in fund-raising and in managing political campaigns for other can-
didates. Nelson had run as a "law and order" candidate and a supporter of the
death penalty, but in public statements prior to Otey's clemency hearing he pledged
to listen to all the evidence and to keep an open mind. He was not interested, he
said, in "dancing around the electric chair."
Don Stenberg (age forty-three) was the newly elected attorney general. A Re-
publican from Tekamah, a small town in northeastern Nebraska, he had graduated
from the University of Nebraska and Harvard Law School. Stenberg also was no
newcomer to politics: He had run four years earlier for attorney general but was
defeated in the primary; earlier, he had run and lost twice in campaigns for lower
political offices. The major emphasis of Stenberg's campaign was on capital pun-
ishment; he vowed repeatedly to make Nebraska's death penalty a reality. Follow-
ing his election he continued to support his campaign pledge. During the spring of
1991 Stenberg gave luncheon speeches to civic groups across Nebraska and ex-
pressly stated that he favored Otey's execution because he was "sickened" by the
details of the crime.
Just two weeks before Otey's scheduled December 5, 1990, execution date, the
Nebraska Supreme Court unexpectedly and without explanation entered an order
that stayed the execution and did not set a new date. But four months later, on
March 19, 1991, that court set a new execution date for June 10. Stenberg opposed
Otey's request for the U.S. Supreme Court to hear his case and filed a brief with
the Nebraska Supreme Court opposing Otey's motion for a stay of execution. In
early May Stenberg wrote to Governor Nelson, noting that he and his office would
"strongly oppose" any further legal actions on behalf of Otey, and that "there is
a reasonable likelihood that the execution can be carried out on June 10, 1991 as
scheduled." Stenberg's letter asked Nelson to schedule a meeting of the Board of
Pardons in early June and to instruct the board staff to assemble background in-
formation so that the board could act on any clemency request prior to the execution
date.
On June 7 Otey's attorney Vic Covalt filed Otey's application for clemency,
automatically staying the execution. When the Board of Pardons met to establish
its procedures for consideration of Otey's clemency application, it set the hearing
date for June 28 and 29, 1991; it also broke precedent in significant ways. All
previous boards had met the condemned man face-to-face at the penitentiary, but
this board voted to allow Otey to submit a personal videotape rather than let him
talk with the board in person. The board also decided to limit witnesses to five
minutes in their presentations, except for the attorneys representing Otey and the
victim's family. Although it did not seem terribly significant at the time, Stenberg
amended the motion to include "counsel for the State" among those who could
speak without time limitation. It later turned out that this was part of Stenberg's
plan to ensure that Otey's commutation request would be rejected.
Covalt's applications attempted to present a comprehensive picture of Harold

Otey as a person. It contained background information about his youth in New
Jersey, when he had been shuttled from relative to relative, ultimately dropping
out of school and living on the streets, as well as testimonials from a dozen or so
individuals who had had regular contact with Otey over the previous ten years.
These witnesses, mostly university professors and religious leaders, told of Otey's
desire to improve himself in prison, his self-imposed educational regime, his strug-
gle to control his anger, and the social maturation reflected in his poetry and friend-
ships. So that it could not fairly be accused of presenting a sugarcoated view of
the applicant, the application also contained every reported court decision involving
Otey's appeals.
In the weeks before the hearing, Otey's attorneys tried to assess his chances of
receiving a commutation. One fact was clear: Attorney General Stenberg had al-
ready made up his mind to vote against clemency. Indeed, he had publicly said
that he supported Otey's execution. It thus became necessary to win the votes of
the governor and secretary of state, who at least had not publicly stated their po-
sitions on the issue of clemency for Harold Otey.
For two reasons, Otey's attorneys decided to forgo any argument that he was
innocent. First, at its June 6 meeting, the board had made it clear that it did not
intend to "retry the case." Second and more importantly, the attorneys concluded
that any attempt to prove their client's innocence would have to be extremely
persuasive in order to succeed. While Otey had recanted his confession, and there
was some evidence suggesting that the crime could have been committed by some-
one else, this evidence had already been rejected by several courts. Vic Covalt
chose instead to focus the major portion of his presentation on three issues: Harold
Otey's rehabilitation; the unfairness of his trial; and the unfairness or disparity of
his sentence.
In the ten days before the hearing, press coverage became increasingly wide-
spread and intense. Local newspapers and television retold the details of the crime.
Several television stations went to the prison, where they were allowed to film the
electric chair and were shown how it operated by prison officials. Otey also began
to receive national press attention. CBS contacted him and explained that 48 Hours
wanted an interview as part of a one-hour television program to be aired later
during prime time concerning the hearing and its outcome. Otey agreed to cooperate
with CBS.
A few days before the hearing, another unexpected event occurred. Vic Covalt
received a copy of a report to the Board of Pardons from the Nebraska Board of
Parole. The parole board is a separate administrative agency created by the Ne-
braska Constitution, and its primary job is to evaluate parole-eligible prisoners for
release. The state constitution provides that the parole board "may advise [the
Board of Pardons] on the merits of any application for commutation." (A statute
also requires the pardons board to "consult" with the parole board before deciding
a commutation request.)
The parole board report was definitely favorable to Otey. It noted that his early
years were "marked by deprivation"; it recognized his educational efforts and
found *'evidence of personal growth and rehabilitation." It stated that Otey would
not "constitute a long-term management problem" within the prison if his sentence
were commuted, and it reported that literary critics had judged Otey's poetry
publications to be "significant literary contributions." Most important was this
conclusion in the report: "Mr. Otey's disciplined and growth oriented daily routine,
which differs significantly from that of most prisoners, constitutes additional evi-
dence of maturing, and may serve as a positive role model for other prisoners."
Given these positive comments and the parole board's constitutionally granted
authority to advise the pardons board on the merits of the application, the fact that
the parole board's report did not contain an express recommendation of clemency
for Otey initially seemed strange to Otey's attorneys. But the reason for the omis-
sion was explained in the report itself: "The charge given us by the Pardon Board
specifically excluded making a recommendation on the larger issue of commutation,
and limited our role to that of gathering and organizing information." Attorney
General Stenberg had expressly instructed Board of Parole officials not to include
its recommendation regarding the issue of commutation, even though he had no
legal authority to issue such an order.
The Clemency Hearing and the Pardons Board Decision
The hearing on Otey's commutation request began at 1:30 P.M. on Friday, June
28, 1991, at the state capitol in Lincoln in a large legislative hearing room packed
with cameras, news media representatives, witnesses, and spectators. CBS's 48
Hours sent a full camera crew and several reporters, and all of the local newspapers
and television and radio stations were present. Since even this large room could
not accommodate the audience, the proceedings were broadcast by closed-circuit
television to other rooms in the capitol. Whatever the outcome of the hearing, it
was sure to generate widespread local and national publicity. The only person
conspicuously absent was the subject of the hearing, Harold Otey, who had been
prohibited from attending by the board that would judge him.
There was unmistakable tension in the hearing room, and tight security measures
had been arranged. Uniformed and plainclothes state patrol officers were spread
throughout the room and at all entrances and exits. Governor Nelson convened the
hearing by announcing ground rules:
Just a few words about what this hearing is about and what it isn't. This is an informal
hearing; it is not a trial. No rules of evidence will be in place. We do not intend to
retry the case against Mr. Otey. This is an Executive Board of clemency, and it is
not our task to determine legal guilt or innocence nor to determine the merits or
demerits o f . . . the death penalty as a sentencing alternative available to the courts.
. . . We are most interested in, today, focusing on those aspects of this particular
applicant's situation which militate for or against commutation of his sentence.
Nelson then set out the procedures to be used. Otey's attorney would give his
opening statement, followed by opening statements from counsel for the victim's
family and "counsel for the State." Witnesses in favor of commutation would
speak next, followed by a "presentation of the case by counsel for the State and/
or counsel for the victim's family." Final arguments would be heard in reverse
order. For an informal hearing in which guilt or innocence was not to be at issue,
this procedure seemed very formal and resembled trial procedures used in a court-
room.
Vic Covalt's opening statement told the board that he would not contest Otey's
guilt but would instead focus on Otey's rehabilitative efforts while incarcerated.
Covalt previewed the testimony the board would hear from over sixty witnesses,
all of whom would tell the board that Otey was a positive role model for other
inmates and for citizens outside the prison walls. Covalt also made it clear that he
was asking for a reduction in Otey's sentence to life in prison without possibility
of parole—no one was even suggesting that Otey should eventually be released
from prison,1 but only that he should be allowed to continue his social and moral
development and to continue to enrich the lives of other people while spending the
rest of his life in prison.
When Covalt's opening statement concluded, Governor Nelson asked, "Is there
someone here on behalf of the State of Nebraska?" Assistant Attorney General
Sharon Lindgren announced that she would represent the state. Lindgren was the
prosecutor on the staff of Attorney General Stenberg who had been responsible for
upholding Otey's death sentence in the courts for ten years.
This was the pardons board's second unprecedented break with its own
traditions. Since the board's creation, no attorney general or assistant attorney gen-
eral had ever stood before it to argue against clemency; such arguments had been
left to the victim's family, the local county prosecutor, or others. On its face there
appeared to be a conflict of interest for the attorney general to sit as a judge while
his assistant argued the case against clemency. Once again, Harold Otey was being
treated differently from previous applicants for clemency.
Covalt objected to the assistant attorney general's arguing the case against Otey,
and the following exchange occurred:
Covalt: I challenge the appearance of counsel of Nebraska Attorney General's As-

sistants Lindgren and Brown. The State should not be allowed to appear on behalf
of the State.
Lindgren: Yes, the situation is unique. But we have not discussed our presentation
with Attorney General Stenberg. We have attempted to insure that Mr. Stenberg is
not tainted.
Stenberg: The Board of Pardons should have a full picture and hear from both sides.
Governor Nelson: I will allow the testimony by the Assistant Attorney General. In a
sense, this hearing is adversarial, but it's not like a Court, and it's more of a fact
gathering hearing.
Before Ms. Lindgren could begin, however, Attorney General Stenberg asked
permission to make a statement. He acknowledged that Lindgren was appearing at
his direction because he felt the board should hear "both sides of the case." Sten-
berg stated:
Right, let me offer a little note there. It was obviously necessary for me to make an
initial decision that we should, that the State should be represented and the general
direction needed to be given to the staff which is what I have done. The presentation
they have put together I have not heard. I have some idea of some of what will be
in it, necessarily, but I have not, the presentation they have made will be making is
what they have prepared and designed to give the whole Board a full picture and a
picture which we will not see if the State is not represented at these proceedings.
Thus, it quickly became apparent that the board would be hearing a retrial of
the case by the prosecution, despite the governor's statement that "we do not intend
to retry the case against Mr. Otey." Such a retrying of the case was also unnec-
essary because Otey's attorney had intentionally presented "both sides" by sup-
plying the board with all of the judicial opinions in the case; the board also had
available the presentence investigation, which included all police reports as well
as much other factual information about the crime. Stenberg presented himself as
unbiased, and he insisted that any "presentation" by his assistants would not nec-
essarily reflect his own views and that he had "not instructed them in what opinions
they should or should not offer." As would later become clear, however, the at-
torney general's involvement in opposing the clemency request, while simultane-
ously sitting as a judge deciding the request, was far greater than his denial of
involvement implied.
Lindgren then spoke on behalf of "the State" and urged the pardons board to
reject Otey's application for clemency. She likened the pardons board to a capital
sentencing panel and said she would be presenting "aggravating circumstances."
She also told the board that she would speak for the victim, Jane McManus. When
Lindgren sat down, an attorney representing the McManus family also gave a brief
statement, asking the board on behalf of the family to carry out the execution.
After these opening statements, more than sixty witnesses came forward during
a twelve-hour period to testify on Otey's behalf. The Board of Pardons first watched
a forty-five-minute videotape of Covalt interviewing Otey, presented because Otey
was not allowed to personally testify at the hearing. On the tape Harold Otey
described his youth. One of thirteen siblings, he was shipped off to an uncle's
house early in life because his mother could not care for all her children. While
living with his uncle, Otey was kept from socializing with other children; he was
regularly beaten and locked naked overnight in a basement room. When he was
fourteen, his uncle sent him back to his mother. Thus Otey went from a severely
restricted, loveless life to a life on the streets with no supervision. By age fifteen
he had left home and joined the racetrack circuit working as a groom. In essence,
Otey had lived the life of a drifter until he wound up on death row.
During the balance of the videotape Otey told of his efforts to improve himself
while in prison: his conversion to Islam, his philosophy studies, the comprehensive
reading program he had set for himself, the three poetry books he had published
in prison. He explained that he used poetry as a means of self-discovery and fin-
ished by asking the board to commute his sentence. He had, he said, found some
meaning for his life in his studies and friendships, and he wanted to continue to
grow.
The balance of the day (until 10:00 that night) and the first five hours of the
following day saw a parade of witnesses attesting to Otey's rehabilitation and
urging the board to spare his life. Many of the witnesses were academicians who
had tutored Otey at the prison. They described their admiration for his ability to
learn and to keep a positive attitude while living in the stressful environment of
death row. They also told the board that they would lose a valued and trusted
friend if Otey were executed. A number of religious leaders, including the local
Muslim Imam and several ministers from Protestant churches, spoke about Otey's
spiritual growth and about the friendships they had forged with him over the years.
Regarding the issue of the unfairness of Otey's trial in 1978, the public defender
who had represented Otey at the trial told the Board of Pardons that he had been
unprepared for the sentencing hearing, in part because of work overload and in
part because of the relative newness of Nebraska's capital sentencing statute at the
time. He told the board that he had not presented some mitigating evidence to
support a life sentence because the statute did not allow it. (After Otey's trial the
U.S. Supreme Court, in Lockett v. Ohio, allowed capital defendants a constitutional
right to offer any mitigating evidence they wished, whether or not it was specified
by statute.) He talked about the requirement of a proportionality review enacted by
the legislature during Otey's trial, requiring a sentencing court in a capital case to
compare the case before it with prior homicide cases to determine whether death
or life is the appropriate sentence. However, because the statute was new, the public
defender offered no cases for comparison, and the sentencing panel of judges never
conducted any real proportionality review.
Evidence was also introduced concerning the unfairness of Otey's death sentence
when compared with others who had committed worse crimes but received life
sentences. Covalt explained in detail the facts of at least six other murders that
were "uglier" or "more heinous" but for which the murderer received a life
sentence. Covalt drew the board's attention to one particularly glaring example of
disparity, the case of Erwin Charles Simants, a white male who had murdered six
people and was currently enjoying weekend furloughs in Lincoln.
Expert testimony further addressed Covalt's claim of disproportional sentencing.
Marj Marlette, a former Nebraska Board of Parole member and then the editor of
Corrections Compendium Magazine, had known Otey since 1978, when she was
a reporter covering the prison for the Lincoln Journal Ms. Marlette stated: "Right
now there are 150 'lifers' in our penal complex, and about 100 of them were
convicted of first degree murder. Many of these 'lifers' committed crimes worse
than Otey's. Life in prison is not leniency. The Pardons Board is the conscience
of the State, and we need equal justice in the State of Nebraska."
Interestingly, the state had actually akeady conceded the issue of disparity of
sentence. In a letter sent earlier to the Board of Pardons, Otey's original prosecutor,
Sam Cooper, admitted there were some cases of "greater crimes and lesser sen-
tences" when compared with Otey's.
Regarding the issues of rehabilitation and nondangerousness, two prison em-
ployees voluntarily came forward and testified in favor of commutation for Otey.
Both Brad Exstrom, an official on death row, and Russ Schuester, a personal case
manager, had known Otey for many years; both said that Otey used his time pro-
ductively and that he got along well with other inmates and was not a disciplinary
problem. These prison employees testified that Otey would function well in the
prison's general population if his sentence were reduced to life imprisonment.
Schuester stated: "Five years ago Wili could be argumentative, but he's changed.
He is more patient and easier to work with. He would not be a disciplinary problem
in the general prison population." One of the few times that any pardons board
member asked a question of any witness occurred when Governor Nelson inter-
rupted Russ Schuester with two questions:
Governor: Is he [Otey] manipulative and trying to beat the system?
Schuester: No.
Governor: Do you think that he has sincerely changed?
Schuester: Yes.
Schuester, it later emerged, had received a visit prior to the hearing from Attorney
General Stenberg's assistant, Ms. Lindgren, who had instructed him not to offer
any of his personal opinions at the hearing. Exstrom ignored this warning and
testified about the Harold Otey he had learned to know over many years of working
inside the prison.
Also addressing the issue of Otey's potential danger was the parole board's own
report, which had earlier been sent to the pardons board and thus was already in
the record. That report clearly stated that Otey would not be dangerous within the
prison if his sentence were commuted to life imprisonment.
On the issue of Otey's intellectual growth, several professors verified his work
ethic and desire to improve. Nelson Potter, a University of Nebraska professor of
philosophy, described Otey's disciplined study of logic and said that Otey's course
exercises had risen to the level of a college sophomore. Nebraska's official poet
laureate, William Kloefkorn, critiqued Otey's poetry for the board:
I think Will's writing today is very uneven; he has poems in his new books that I'm
not sure I understand. He has sections of poems that I think I understand in then-
totality, but certain sections of the poems confuse me. He has other poems that I
think are very lucid, he has some poems that propagandize, he has some poems that
I think are very mellow, and very, very effective, but that is characteristic of almost
any poet. He has his high moments, and he has his low moments, and some low
moments, as a matter of fact, get into print.
Kloefkorn explained to the board that the quality of Otey's poetry was not as
important as Otey's personal growth and progress, that what counts for any poet
or any writer is growth and the ability to learn and change. In that regard Otey's
poetry was successful. Kloefkorn asked the board to spare his life.
Some of the most powerful witnesses on Harold Otey's behalf were people who
had met him through religious organizations or prison outreach groups; others had
simply exchanged letters with him, some for as long as ten years. All these wit-
nesses testified that knowing Otey had enriched their lives, and they told the board
of the pain they would feel if he were electrocuted. Some were articulate and
impassioned, while others were obviously nervous at voicing such personal

thoughts in a public forum.2
When the hearing reconvened on Saturday morning, Otey's mother and several
of his siblings closed the testimony in favor of commutation by begging for Otey's
life. Julia Wheeler, his mother, looked the three politicians in the eyes and said:
"I feel sorry for the McManus girl, I don't know her just like I don't know you
but I've been here all these years. If I had all the tears that I've shed through the
last 13 years, I'd have my own ocean. I'm asking that you let my son live."
When attorney Covalt indicated he had finished with Otey's witnesses, Governor
Nelson called for the presentation by "counsel for the State and/or counsel for the
victim's family," and Assistant Attorney General Sharon Lindgren stood to address
the board. Covalt again objected to an assistant attorney general's arguing against
clemency on behalf of the state while her boss, Don Stenberg, sat as a member of
the board making the final decision. Lindgren again defended her appearance, ex-
plaining that the attorney general was unaware of the content of the presentation,
which she alleged would ''ensure Mr. Otey's rights of due process." Governor
Nelson agreed that Lindgren should proceed, and he assured Otey's attorney that
the board "will not be unduly prejudiced by argument that might be considered at
least in the general judgment adversarial."
Lindgren's first witness on behalf of the state was another assistant attorney
general, J. Kirk Brown, who told the board that he had witnessed more than twenty
executions while employed by the Texas Department of Corrections. He said that
although executions were never pleasurable, he was able to go home from those
executions, look in on his sleeping daughter, and sleep well himself. He talked
about feeling safer as a child when he heard that Charles Starkweather had been
electrocuted. What Brown did not do was talk much about Harold Otey, except to
say that no personal or intellectual growth on Otey's part could "excuse" his
crime. Brown told the story of Jack Henry Abbott, a felon who had been befriended
by Norman Mailer. With Mailer's help Abbott was paroled—and promptly com-
mitted another violent felony and was returned to prison. Brown warned the board:
"To excuse Harold Otey from responsibility for his killing of Jane McManus or
to moderate his punishment in any manner because someone has seen fit to publish
his verse would make Nebraska the state where poets have a license to kill." No
one on the board noted that Otey was not asking to be "excused" of the crime—
he was asking for a lifetime prison term.
Lindgren's next witness was Charlie Parker, the detective who had arrested Otey
in 1977. Notwithstanding Covalt's statement to the board that Otey did not contest
his guilt for purposes of the hearing, Parker wanted to review the evidence that he
believed supported Otey's guilt. Parker recounted Otey's confession and told the
board of other crimes he believed Otey had committed.
For the next forty-five minutes, Assistant Attorney General Lindgren testified
for the state. She accused Otey's witnesses of "depersonalizing" Jane McManus
by asking the board to spare his life. Lindgren noted that she and Jane McManus
were born the same year, and that Otey had deprived McManus of her ability to
grow and add value to society. She gave the board the crime scene photos intro-
duced at the trial in 1978, warning them that the pictures were "gruesome." She
described in detail every wound inflicted on Jane McManus and quoted from the
autopsy report. Lindgren described how the police investigation had pointed to
Otey as a suspect. Then she played an audiotape with excerpts of Otey's confession
which the police had obtained after eight hours of interrogation and which Otey
later recanted.
The McManus family, who had been present throughout the hearing, left in tears
when the confession tape was played. They later returned to testify. Laura Mc-
Manus, Jane's sister, urged the board not to "excuse" Otey simply because he
seemed to have changed: "I can't bring Jane's friends that she's made in the last
fourteen years here today to tell you what a changed woman she is, or how she's
grown. Harold Otey took that away from her." Another sister spoke only briefly,
noting, "I believe Mr. Brown and Ms. Lindgren, both from the Attorney General's
office, have said whatever we could say to you."
Jane McManus's mother also asked the board to deny Otey's application:
"We're only asking that the original sentence of the court in 1978 be carried out.
We as a family are not being vindictive nor are we the executioners. On the con-
trary, we're asking that the original intent of the court not be interrupted."
After a short break the board heard closing arguments from Lindgren and Covalt.
Lindgren's summary emphasized her earlier themes: the details of the crime, the
need not to forget the victim, and the desirability of following the decision and
sentence of the courts.
Covalt's summary took about one hour. He emphasized that Harold Otey was
poor, a minority, and an "outsider" who had made excellent progress in prison;
that more than sixty witnesses had testified concerning Otey's rehabilitation and
the fact that he had made a positive contribution to their lives. He spoke of Otey's
potential contributions to society as a teacher of other inmates through his poetry
and writings. Covalt reminded the board that at least six persons in Nebraska con-
victed of more heinous murders had eventually been given the lesser sentence of
life imprisonment. He also reviewed, once more, the basic facts about the unfairness
of the original trial: the inexperience of Otey's counsel and of his lack of time to
prepare an adequate defense, thanks to the trial court's "rush to judgment."
In summary, Covalt argued that Otey's trial was unfair, that his sentence was
unfair and disproportionate, and that Otey had changed for the better; he was not
dangerous, and in 1991 he was a totally different and better human being from the
person who had been convicted thirteen years earlier. Covalt reminded the Board
of Pardons that Nebraskans historically have been "a peaceful people" and how
relatively few death sentences had actually been carried out (none in more than
thirty years). Covalt asked the Board of Pardons to reward Harold Otey for his
progress by sparing his life.
At the end of final arguments, the board announced there would be approxi-
mately an hour's recess; each of the three members retired to his own private office
to contemplate his decision. At about 4:00 P.M. the board reconvened to announce
its decision. Governor Nelson spoke first and announced that he was voting to deny
the application for clemency. He did not attempt to address the arguments presented
by Otey's attorney but rather spoke generally about "the rule of law" and the fact
that the courts had decided the matter. He concluded by stating that it was "a time
for tears."
Attorney General Stenberg spoke next; to no one's surprise he said that he, too,
was voting against clemency. He gave few details to support his decision, stating
simply that "it is hard to tell whether or not Otey had been rehabilitated."
Third and last, Secretary of State Beermann announced that he dissented and
voted in favor of clemency for Otey. In contrast to the governor and attorney
general, Beermann gave several specific reasons supporting his decision and re-
ferred to the evidence introduced during the hearing:
I have some lingering doubts about this case. I have lingering doubts about whether
Otey got a fair trial. His defense counsel was inexperienced and had only three weeks
to prepare.... I have lingering doubts about the fairness of his sentence, because of
the three charts showing comparative sentences for other murderers.... Due process
of law gives the executive branch the right to grant clemency. Clemency is the con-
science of the people. Execution in this case is not best, and I vote "no."
Thus, as in the federal courts, Harold Otey lost by a split decision, two to one.
At 6:00 P.M. on Saturday evening, June 29, the Board of Pardons, upon motion by
Attorney General Stenberg, voted to set the time for Otey's execution just thirty
hours away, at 12:01 A.M. on Monday morning, July 1, 1991. Attorney Vic Covalt
immediately left the capitol and went to the law office of his colleague, Vince
Powers, who was already preparing a petition for habeas corpus relief in the federal
court.
The Judicial Appeals Based Upon Alleged Flaws in the

Clemency Proceedings
From the conclusion of the clemency hearing in late June 1991, Harold Otey's
interests were represented in various ways by a group of attorneys and citizens
who collectively became known in public and legal circles as the Otey Defense
Team. From 1991 to 1994 Otey's attorneys attacked the clemency proceedings in
the courts on three basic legal grounds, all of which revolved around the conduct
of Attorney General Stenberg and his assistants at the time of the clemency hearing:
1. Otey was denied due process of law because the attorney general acted both
as Otey's prosecutor and as a decision maker on Otey's clemency application.
At issue here were the age-old prohibitions against biased judges and against
any appearance of conflicts of interest by a judge or decision maker.
2. Otey was denied equal protection of the laws because he was treated differ-
ently from all other clemency seekers in capital cases throughout Nebraska's
modern legal history.
3. The Board of Pardons violated Otey's rights when it prevented the Nebraska
Board of Parole from presenting its own independent recommendation in

favor of commutation to the pardons board.
On June 29, 1991, the most immediate challenge to Otey's attorneys was stop-
ping the execution scheduled just thirty hours away. Vince Powers and Vic Covalt
worked throughout the night on a petition for federal habeas corpus (unrelated to
issues arising from the clemency hearing), which they presented the next morning
to District Court Judge Warren Urbom in Lincoln. Judge Urbom decided against
Otey, and his decision was immediately appealed to the Eighth Circuit Court of
Appeals sitting in St. Louis; that court stayed the execution just six hours prior to
the scheduled execution.
A separate legal action attacking the clemency hearing was filed in July 1991
in the state trial court. Nebraska District Court Judge Bernard McGinn decided in
Otey's favor, declaring the clemency hearing void and enjoining the state from
setting a new execution date. Judge McGinn's decision was eventually overruled
by the Nebraska Supreme Court in May 1992, and a new execution date was set
for August 6, 1992. The same claims related to the pardons board hearing were
then brought in federal court on a habeas corpus action, and federal District Court
Judge Urbom issued an order staying the execution. His decision was upheld in
July 1992 by the Eighth Circuit Court of Appeals, and the stay was further extended
when the U.S. Supreme Court sustained the ruling of the Eighth Circuit. Upon
learning of these further delays, Attorney General Stenberg called a press confer-
ence; he became emotional and publicly criticized the ruling by the court. When
the television press began to ask questions, Stenberg stuck his hand in front of the
camera's lens and called an end to his own press conference.
Attorneys Shawn Renner and Vic Covalt then pursued further actions in the
federal courts to void the 1991 pardons board hearing. In late 1993 Otey lost a
two-to-one decision in the Eighth Circuit Court of Appeals when it ruled that the
court had no jurisdiction to review the matter. Federal Court of Appeals Judge John
Gibson dissented with these conclusions:
Substantive due process protects individuals from government conduct that "shocks
the conscience." . . . The idea of a prisoner pleading for his life before a board that
includes the very official responsible for his prosecution and conviction is shocking
to the judicial conscience.... The participation of the Nebraska Attorney General as
a voting member of the Board of Pardons renders the Nebraska clemency procedure
fundamentally unfair. Attorney General Stenberg's statements of personal objectivity
at the hearing do not cure this defect.
The Supreme Court later denied certiorari to Otey's appeal, and in early July
1994 the Nebraska Supreme Court set a new execution date for September 2, 1994.
Otey's attorneys attempted to cure the jurisdictional defect found by the Eighth
Circuit Court by raising their legal issues under federal civil rights statutes. On
August 24, 1994, District Court Judge Warren Urbom ruled that Otey did not have
a valid claim, but the judge took the unusual step of adding a "personal note" to
his written opinion: "Writing an opinion such as this is painful for me, more painful
than words can tell. I do not like the prosecutor being judge of his own cause. I
do not like the death penalty. I would abolish it if I could."
An appeal was immediately filed with the Eighth Circuit Court of Appeals; on
August 30, two days before the scheduled execution, Shawn Renner argued the
case to a three-judge panel of federal appeal court judges sitting in Kansas City,
Missouri. During oral argument, Renner argued that Otey's substantive due process
rights had been violated by Stenberg's conduct before and during the clemency
hearing. The assistant attorney general, Kirk Brown, argued that Attorney General
Stenberg had uncontrolled discretion at clemency hearings. Judge John Gibson
interrupted and asked Brown this question:
Judge: Are you saying that during a hearing to determine a man's life or death that
the Attorney General of Nebraska can play with a stacked deck?
Brown: Yes, that's right.
The next day, the federal court issued its opinion; Otey had again lost on a two-
to-one split decision. An appeal was immediately filed with the Supreme Court,
but certiorari was denied six-to-two just four hours prior to the time set for exe-
cution.
Thus, over three years of litigation and appeals through the state and federal
courts had produced one basic legal conclusion: The chances were very slim that
any court would claim jurisdiction over the clemency function of the executive
branch of government. Harold Otey had exhausted his judicial appeals. His only
hope was that Governor Nelson, the swing vote on the Board of Pardons, would
change his mind and vote in favor of clemency.
The First Meeting with the Governor
Following the 1991 clemency hearing, the Otey Defense Team made two strategic
decisions: There was no point in communicating with Attorney General Stenberg
because he had clearly made an irrevocable decision against clemency; there might
be a chance of persuading Governor Nelson to change his mind if new evidence
could be found in areas of concern to him.
On a Sunday evening in early August 1991, Nelson agreed to a three-hour
private meeting, which was held around the dining room table at the governor's
mansion. Meeting with the governor were attorneys John Miller and me; Professor
Hugo Adam Bedau of Tufts University, author of several books and many articles
on all aspects of capital punishment; and Professor Michael L. Radelet, a sociologist
at the University of Florida and also an author of books and articles on capital
punishment. Prior to meeting with Nelson, Bedau and Radelet spent many hours
studying the case and talking with Otey at the prison.
Governor Nelson explained to the non-Nebraskans that in his opinion there were
some differences between agrarian eastern Nebraska, which he compared to Iowa
and Illinois, and the high plains at the other end of the state "where the West
begins." Nelson explained that where he grew up in western Nebraska, the general
philosophy of the citizens was strong for law and order, and that a "hang 'em
high" attitude toward criminal offenders was widespread.
A candid discussion then occurred over the next three hours, with the attorneys
and professors reviewing more than a dozen reasons for commutation and the
weight of the evidence, which they contended justified a vote for mercy. As the
evening grew late, Governor Nelson seemed interested in what was presented, and
he invited his guests to return for a second meeting over breakfast the next morning.
Another discussion ensued over breakfast; Governor Nelson was asked to re-
consider his position, to change his vote, and to grant clemency to Harold Otey.
Nelson said he "would keep an open mind" and that he "welcomed" receiving
new evidence in five areas of concern to him: (1) Would Otey agree to stop talking
to the press? (2) Was Otey genuinely remorseful about the crime? (3) Were there
precedents? Had other governors used similar criteria to support their decisions for
clemency? (4) Was Otey dangerous? (5) Was Otey truly rehabilitated?
Governor Nelson was told that the inquiry and research would begin immedi-
ately on these issues. Over the next eight months substantial evidence was delivered
to the governor in each of the five areas.
Evaluations of Otey's Personal Conduct During the Years

Following the Clemency Hearing
Governor Nelson's first concern was quickly satisfied. Otey agreed to cease talking
to the press; he made no further statements to the media during the next three
years.
Nelson's second concern was more difficult to satisfy. At the clemency hearing,
there was evidence from the testimony that Otey's poetry and his statements to
friends had indirectly shown that he was sorry the crime had been committed. But
Otey had not made a direct expression of sorrow to the victim's family. When
Professors Bedau and Radelet interviewed Otey, they discovered that he was con-
fused over the difference between sorrow and remorse. Otey continued to maintain
his innocence, and he thought that any expression by him of sorrow over the murder
of Jane McManus would be an admission of his guilt in the crime. When he realized
this was not so, Otey felt free to express his sorrow. In October 1991 Otey wrote
a letter to the victim's mother, Joan McManus, in which he expressed his sorrow
about the crime and about the unhappiness it had brought to the McManus family.
The McManus family acknowledged receiving the letter but rejected its message
as insincere. Later psychological evaluations verified that Otey's sorrow was gen-
uine and deep.
The governor's third concern asked for precedent for clemency, and in response
Bedau and Radelet sent him several law review articles, other reports, and excerpts
from books exploring the criteria used by other governors in the ten states where
seventy commutations had been granted to condemned inmates between the years
1973 and 1992. Attention was drawn to one case in particular, that of William
Neal Moore in Georgia. Moore had pled guilty to breaking into a home, killing its
seventy-seven-year-old female owner, and stealing more than five thousand dollars.
The day before his scheduled execution in 1990, the Georgia Board of Pardons
had commuted his sentence to life imprisonment; the reasons for clemency were
very similar to those presented in Otey's case: an exemplary prison record; an
expression of remorse; a religious conversion; and various pleas for clemency from
a wide range of citizens who personally knew the defendant.
The final two concerns—whether Otey was dangerous and whether he was gen-
uinely rehabilitated—were addressed over the next seven months through the de-
tailed psychological evaluations and reports from three nationally recognized
experts in various aspects of mental health and criminology—Kent Miller, Wesley
Profit, and Michael L. Radelet. Kent Miller, a clinical psychologist and professor
emeritus in the Department of Psychology of Florida State University, spent more
than thirty hours in October 1991 evaluating Otey and studying his life history and
prison record. His report to Governor Nelson summarized his conclusions as fol-
lows: "In my experience, I am not aware of a death row inmate who has made
more dramatic progress in rehabilitation with respect to self-education, control of
emotions and aggressive behavior, continuing meaningful contacts with groups and
individuals outside the prison, and a disciplined use of his day within the prison."
Miller further stated that Otey would not be dangerous inside the prison if his
sentence were commuted to life imprisonment.
In early November 1991, Wesley Profit, a psychologist and a professor in the
Department of Psychiatry at Harvard Medical School, spent four days testing and
evaluating Harold Otey. Dr. Profit had immense practical experience because he
was also the head of mental health services for the entire Massachusetts correctional
system and in that capacity had studied and evaluated more than a thousand persons
convicted of murder. During the next several months Dr. Profit spent the equivalent
of ten days interviewing, testing, and studying Otey's behavior and psychological
profile, and writing his analysis. His twenty-three-page report was delivered to the
governor's office in March 1992, with an evaluation that concluded as follows:
"To the extent that consideration of a petition for mercy is to be based upon
concepts of rehabilitation, reduced likelihood of future dangerousness, and the pres-
ence of prosocial adaptation, it is my opinion that Harold Otey presents one of the
strongest cases for commutation which I have seen."
Both Miller and Profit had worked in previous cases with prosecutors as well
as defense attorneys, and thus they were well qualified to detect manipulation by
prison inmates. The state never produced any evidence from any mental health
professional to contradict their findings.
The third and final expert was Michael L. Radelet. Professor Radelet, who had
postdoctoral training in psychiatry, had studied in detail the case histories of over
two hundred death row inmates around the nation. After spending more than thirty
hours interviewing and evaluating Harold Otey over a period of three years, his
report to Governor Nelson concluded:
Of the 200 death row inmates I have met, Mr. Otey's adjustment to the prison life,
rehabilitation, and potential to contribute are second to none, and are matched by only
a small handful. I have also studied the issue of clemency in capital cases and the
reasons for it. I know of no death row inmate in America who is more deserving of
commutation than Mr. Harold Lamont Otey.... I also know that some in Nebraska
are claiming otherwise. However, few of those who paint Mr. Otey as manipulative
or dangerous have ever met him, and fewer still can claim any special expertise in
conducting psychological evaluations or in the study of prisoner manipulation. For
my own part, I spent two years in the Department of Psychiatry, University of Wis-
consin Medical School, studying prisoner manipulation and impression management.
For most of the 1980's I also taught the required course in Medical Ethics at the
University of Florida Medical School. Every ounce of that training leads me to believe
that Mr. Otey's rehabilitation is genuine and sincere.
That Governor Nelson was even concerned that Otey might be dangerous if
commuted to life imprisonment was somewhat baffling to Otey's attorneys. During
sixteen years in prison, the record showed that Otey had been involved in no violent
incidents and had threatened violence toward no one.
It should be noted that the testimony of all three mental health experts supported
the evidence from the state's own prison professionals, which expressly attested
that Otey was not dangerous, and the state parole board's 1991 report, which was
very favorable regarding Otey's prison conduct explicitly stated that he was not
dangerous.
By March 1992 the evaluations and reports from all of the experts had been
personally delivered to the governor's office. Otey's attorneys believed that each
of the governor's five concerns had been satisfied by the overwhelming weight of
the evidence, and that there was no valid reason not to commute Otey's sentence
to life in prison.
Governor Nelson never responded to any of the reports, evaluations, or letters.
The Final Meeting with the Governor
On July 8, 1994, the Nebraska Supreme Court set a September 2 execution date
for Harold Otey.
On Monday, August 22,1 called the scheduling secretary in Governor Nelson's
office and said that Professor Radelet was coming to Lincoln later in the week and
would like to schedule a meeting with the governor to discuss the Otey case. The
next day, the governor's secretary returned the call and said that the governor
"would be happy to meet with you and Dr. Radelet to discuss any subject except
the Otey case." Thus, no meeting was scheduled.
Radelet did return to Lincoln, and he and I held a press conference on the steps
of the capitol on Saturday, August 27, to release to the public the details about the
1991 private meetings with Governor Nelson, the governor's stated concerns, and
how we believed those concerns had been satisfied, thus providing the governor
with a moral imperative to reverse his vote and commute Otey's sentence. It was
also revealed to the press that prior to the clemency hearing in 1991, the governor's
staff had called various officials and citizens around the state to poll them about
capital punishment and the Otey case, thus raising questions about the political
character of Nelson's decision against clemency.
During this period Governor Nelson was in New York attending fund-raising
events for his reelection campaign. On August 29 Governor Nelson's secretary
called me and announced: "The governor would like to meet with you to talk
about the Otey case." The meeting was scheduled at the governor's office for 2:
00 P.M. on Wednesday, August 31, thirty-four hours before the scheduled execu-
tion.
Attorney Alan Peterson and I met with the governor and one of his assistants
at his office in the capitol for about half an hour on August 31. We thanked the
governor for meeting with us and gave him a six-page outline organizing the ev-
idence that justified clemency under seven categories:
1. Lingering doubts about the fairness of the trial

2. Uncontested proof of the disparity of the death sentence, which the state
conceded was disproportionate relative to prior cases
3. Otey's genuine expression of sorrow in his letter to the victim's mother
4. Uncontested evidence that Otey was not dangerous
5. Abundant evidence that Otey was genuinely rehabilitated
6. Written opinions from distinguished jurists stating that the 1991 Otey clem-
ency hearing offended them
7. Precedent from other states where other governors had commuted similar
crimes and sentences to life in prison
After Governor Nelson perused the outline, a courteous conversation followed.

Nelson reaffirmed his earlier statement at the clemency hearing that his decision
in the Otey case would be "the most important decision" he would make as
governor. The dialogue continued:
Myers: Governor, over the past three years have you received the letters, articles,
reports and evaluations from Drs. Bedau, Radelet, Miller, and Profit?
Governor: Yes, I did, and I'm sorry that I did not respond to them.
Peterson: Well, it's not too late. We have their telephone numbers, and if you have
any remaining questions, they would be happy to talk with you. Do you also
remember when you met with Dr. Bedau and Dr. Radelet over three years ago, and
at the end of the meeting you said you would keep an open mind and that you had
five areas of concern where you would welcome new evidence?
Governor: Yes, I do.
The attorneys and the governor then briefly reviewed the evidence that was organ-
ized under each concern in the written outline. The attorneys stated their position
that the evidence was sufficient to satisfy each concern and they asked the governor
if he had any remaining concerns
Governor: It bothers me that Otey recanted his confession and still does not admit
that he committed the crime.
Myers: Even if we assume that Harold Otey committed the crime, in his own mind-
he could sincerely believe that he is innocent. Your concern was addressed back
in 1991 when you received a letter from Dr. Frank Menolascino, the head of the
Department of Psychiatry at Nebraska Medical School. Dr. Menolascino explained
the syndrome known as "post traumatic stress disorder"—even if a person did
commit a violent crime, he psychologically blocks it out and cannot admit even to
himself that he could commit such an act. As you will recall, Dr. Radelet also
explained such psychological blocking mechanisms three years ago.
Governor: Well, I'm still worried that Otey could be dangerous.
Peterson: All of the evidence shows that he is not dangerous. Otey has been a model
inmate with no violent incidents. The evaluations by the national experts, Drs.
Radelet, Profit and Miller, confirm that he would not be dangerous if you commute
his sentence. Even the two officials at the prison testified that Otey would not be
dangerous within the general prison population, and the report of the State Parole
Board agrees. You know, you have never met Harold Otey face to face. Perhaps
it would be helpful if you would visit with him at the prison and personally chat
about your concerns.
Governor: Oh, I can't go to the prison. It's too dangerous. Prison officials have
advised me that it's too dangerous for me to go out there.
Myers: Well, we're going to leave this outline with you, and we hope you will review
it and think about it. It's not too late to reconvene the Pardons Board and change
your vote. We submit that all of the evidence shows that Harold Otey is one of
the greatest examples of rehabilitation in American penal history. Killing him
would send the wrong message to other prisoners. Rather than killing him, the
Nebraska penal system should be proud of what its educational system has
achieved.
Governor: I assure you that I will review and think about this material.
Peterson: Thank you for meeting with us. (end of meeting)
There was no further communication between the governor and Otey's attorneys.
In the end, Governor Nelson never changed his original vote denying clemency.
He knew that he was the swing vote and therefore held Otey's life in his hands,
but he never explained his reasoning in choosing to deny clemency. It was clear
that he was under tremendous political pressure from the Omaha World-Herald,
from friends of the victim's family, and from supporters of Attorney General Sten-
berg.
In late August 1991 Professor Nelson Potter met with Governor Nelson at the
capitol to discuss the case. Potter later reported that the governor seemed to have
little understanding of the life of prison inmates in general, or of how, over a long
period of acquaintance, one could correctly assess the character of a prisoner. Potter
had spent hundreds of hours inside Nebraska's prison teaching logic to inmates,
including Otey. Potter understood what an effort it took and what an achievement
Otey had made in rehabilitating himself, but the governor was not interested in
hearing about this aspect of the case. Though Governor Nelson had never met Otey
or even talked with him over the telephone, he nonetheless told Potter that he
thought Otey was "a survivor" and "a manipulator."
One final incident in 1991 indicates that the governor had been less than candid
when he earlier said that he "welcomed" new evidence and would "keep an open
mind" about clemency for Otey. On a Saturday evening in October 1991, Governor
Nelson attended a dinner party at the home of some friends in west Omaha. During
conversation before dinner a friend and supporter of Nelson asked him: "What is
happening in the Otey case?" Governor Nelson answered: "I feel sorry for the
lawyers in the Otey case. Some of them are my friends, and they are working so
hard to try to get Otey clemency, but it's just not going to happen" (emphasis
added).
The Political Atmosphere Surrounding the Execution
The attitude of most members of the press toward the Otey case was also crystal
clear. Television stations' capsule reports on the progress of the Otey case always
featured quotes from Attorney General Stenberg or from the victim's family. As
the execution date approached, more and more media attention was devoted to the
death penalty. Stories about the legal battle were overshadowed by stories about
the nature of the death penalty itself. Front-page articles and photographs of the
victim and Otey greeted the readers of Nebraska's two largest newspapers. The
Omaha World-Herald carried a large diagram of the electric chair with each com-
ponent labeled. Articles appeared with the minute-by-minute schedule for Otey
during the last week before his execution. Opinions were solicited from witnesses
to other states' executions and to the most recent execution in Nebraska. The Lin-
coln Journal Star carried features about issues surrounding the death penalty, in-
cluding deterrence, costs, race, and poverty, and the paper conducted a nonscientific
phone-in poll of public opinion, which favored the death penalty two to one.
During the three-year hiatus between the pardons board hearing and Otey's latest
execution date, Attorney General Stenberg had held frequent press conferences to
criticize the delays and to restate his support for Otey's execution. To add to the
drama, Stenberg occasionally used the victim's family members standing behind
him as a backdrop for his television press conferences.
Public advocacy for Otey's clemency also came from two former Nebraska
governors, Frank Morrison and Robert Crosby. They coauthored an editorial, which
was published in many newspapers across Nebraska, opposing the death penalty.
They also spoke in Otey's favor at a campus church in Lincoln.
On Monday, August 29, clerical leaders and church members carried the thou-
sand-plus petition signatures and more than three dozen letters to the capitol and
presented them to Lieutenant Governor Kim Robak, who represented the governor.
Rev. Lauren Ekdahl called upon the governor as a fellow Methodist to follow the
moral directive of their church and to stop the execution.
Thursday, September 1, was Harold Otey's last day. During the prior week Otey
had been housed in the infirmary above the execution chamber. From the infirmary
window, he could see the crowd control fences segmenting the parking lot.
In front of the governor's mansion, those holding vigil stood from noon to
midnight. There, a final press conference was held to release a letter signed by
major national celebrities and human rights advocates on Otey's behalf. That af-
ternoon, Governor Nelson held his own press conference, saying that he saw "no
reason" to change his vote and that he would have no further comment.
By 8:00 P.M. the U.S. Supreme Court had issued its ruling denying Otey cer-
tiorari. The judicial appeals were exhausted, and only a change in the governor's
vote could stay the executioner's hand.
As darkness fell, several thousand people gathered outside the prison. The pro-
death penalty and anti-death penalty crowds were separated by a double fence, and
state patrol officers were positioned in the neutral area to maintain order. The
Plainsmen, a pro-death penalty group, were greeted with cheers as they marched
into the crowded pro-death penalty side of the penitentiary lot, bearing signs and
frying pans and waving swastikas and explicit racist signs. Their signs read "Ne-
braska State 1st BBQ", "Otey Today—O.J. Tomorrow," "Execution Is A-Otey."
The spotlight of dozens of television cameras lit their signs, and the yells of "Go
Big Red!" and "USA!" could be heard for blocks as the midnight hour ap-
proached.
In contrast, the antiexecution side sang hymns and quietly held candles and a
few banners and signs. They could see Harold Otey through the window of the
infirmary, and he could see them. Just before he was taken from that room, he
spent a few minutes waving to the crowd. His supporters waved back, grateful for
this last good-bye.
At 12:20 A.B. on September 2, 1994, Harold Otey was executed. His body was
returned to his family in New Jersey for burial. He had made no final statement to
the press or to prison officials. The official witnesses reported that Otey had died
with composure and dignity, mouthing to his three chosen witnesses the words "I
love you'' just before the hood was placed over his head.
Conclusion
The day following the execution brought various televised comments by public
officials and legal commentators. Judge John Grant, who originally sentenced Otey
in 1978, stated: "I was shocked by the carnival atmosphere at the prison." Gov-
ernor Nelson commented that he was "surprised" and "disgusted" by the "circus
atmosphere."3 Tom Riley, an Omaha public defender, commented: "This is dis-
turbing to society. The crowd's screaming and yelling is not civilized. The whole
thing has been so politicized that it's outrageous. Stenberg ran on a platform to
execute Otey. The whole process is so wrong in that people cannot do what is
right, but only what is expedient." A well-known political analyst and commentator
on Nebraska politics, Creighton University law professor Richard Shugrue, aptly
summarized the situation: "Some say that executions desensitize society. The role
of Stenberg as both prosecutor and judge at the Pardons Board hearing was fun-
damentally unfair. Then the entire Otey issue became politicized."
No one had understood the political situation better than Harold Otey, an avid
reader who read both the Lincoln and Omaha newspapers every day. Otey never
gave up hope, but he was also realistic and he knew that the odds were against
him. One week before the execution date, Otey commented to a close friend: "If
I die, it will be a political killing."4
Notes
1. It should be noted that Otey was content to remain in prison for the rest of his life.
He was willing to sign an official agreement with the State of Nebraska guaranteeing he
would never be released. It would have terminated a commutation of his sentence to life in
prison if he ever requested a further commutation of the life sentence to a term of years.
2. There was also testimony at Otey's clemency hearing regarding the racial issue. Fred
Conley, a black attorney and city council member from Omaha, testified as follows:
"Historical data in America unquestionably shows that a grossly disproportionate percentage
of poor and black defendants have been executed, and especially when the victim was white
or rich or both. This is not equal treatment under the law." Alan Peterson, a trial attorney
in Lincoln, stated to the board: "This case fits into the ugly, problematical trend when there
is a white victim and a black offender. The national pattern is clear. Our nation is not a fair
society in dealing equally with all citizens."
3. Robert Kerrey, one of Nebraska's U.S. senators, saw fit to call a public press confer-
ence the day after the execution. Kerrey was a former Nebraska governor (1983-87) and
had previously not made any public statements about the Otey case. He was also involved
in his own campaign for reelection, which was scheduled for nine weeks after the execution,
in early November 1994. Senator Kerrey stood outside the Nebraska prison and stated: "I
don't support capital punishment. It's not a deterrent, and I'm against it. But it may be the
right punishment in some cases. In this case, it gave relief to the McManus family."
4. The following Nebraska citizens (known as "The Otey Defense Team") assisted
either in the research and preparation for the clemency hearing or in the subsequent judicial
trials and appeals: professors Nelson Potter, William Roundey, Garnet Larsen; attorneys
James Mowbray, Dorothy Walker, Vincent Powers, Victor Covalt, Shawn Renner, Alan
Peterson, Paula Hutchinson, John P. Miller, J. Patrick Green, Larry Myers, Mike Gooch,
and Scott Helvey. Also assisting on appeal briefs was Seattle attorney Tim Ford.
27
To See or Not to See:

Televising Executions
Why KQED Should Win
HENRY SCHWARZSCHILD
I don't want to see it on TV. I don't particularly want other people to see it. It is
bound to be depressing and disgusting. It will inure the public to violence and
barbarism and will further coarsen the sensibilities of the society.
I am talking about the [Gulf] war. Now, would anyone other than the Defense
Department think those reasons sufficient for banning television coverage of the
war? I suspect not. And the same commitment to a free press ought to prompt us
to favor KQED in its lawsuit against the warden of San Quentin.
The prospect of television transmitting executions to me "in live color" while
I am at the dinner table is revolting. The spectacle may entertain some, gratify
some, appall others. It may redound to the advantage of supporters of the death
penalty or to that of abolitionists; none of us can be sure. But KQED should have
the right to videotape and air the execution.
In this lawsuit (whose negative ruling by the trial court may well be appealed),
the claim to the right to televise is properly made contingent on the consent of the
prisoner. That safeguards his/her privacy concerns. What else is left to consider?
The First Amendment's guarantee of a free press, nothing more. In a decent society,
the press must be free to cover public events in whatever way it chooses, and
abolitionists (who believe that a decent society also does not kill human beings)
should not be heard to want to muzzle the press for some speculative gain on our
agenda or for the prevention of speculative harm.
Both the print and electronic media every day report scores of matters that I
think have a deleterious effect on public morality and politics. I would not be a
censor of the media, nor do I want the warden of San Quentin to be the censor. I
won't here dwell on the irony of some of my friends and colleagues siding with
the Corrections Department of California on this matter—the same agency that will
Reprinted by permission of the National Coalition to Abolish Capital Punishment from Lifelines, no.
53, July/August/September 1991, pp. 2, 7.
384
Televising Executions 385
do the execution. But I say in all seriousness that the important problem is whether
executions are done, not whether they are seen to be done. The notion that exe-
cutions are too revolting to be seen by the general public is to misapply squea-
mishness to the wrong part of the problem. The fear that the public will become
so used to the spectacle that executions will lose their taboo quality or the horror
of the imagined is no more likely than that the public will be horrified and begin
to turn away from the death penalty. Whichever predictions turn out to be true, the
resolution of this uncertainty cannot be a test of our commitment to a free press.
I do not doubt that other death-row inmates will be profoundly angered, that the
family of the prisoner to be executed will be anguished, and I take no pleasure
from these thoughts. But a free press is uncomfortable sometimes and yet essential
to our society and an essential medium of public education for abolitionists.
KQED should win its lawsuit against San Quentin.
Why KQED Should Lose
ROBERT R. BRYAN
My worst nightmare is an execution scene. I am led into a death chamber and

placed in a strange chair. I sit there, frightened. They are about to kill me and there
is nothing I can do. I gaze at the good men of the law going about the task of
strapping my legs, arms and chest. Ironically, they are careful not to cause pain by
tightening the leather too much. That dreaded of all moments is rapidly approach-
ing. My heart is pounding. There are spectators, peering at me as if I were a caged
animal in a zoo. It seems silly, but I am embarrassed. Why do they all stare so?
This is a very private moment, but I have no privacy. I am the focus of their
entertainment. I awake, in a cold sweat. It was just a terrible dream.
For many, my illusion is their reality. Now, rather than just a select few watching
the ritual of death, there is a move to broadcast that final agonizing moment into
virtually every home in the country through the medium of television. If the pro-
ponents of televising executions are successful, we will be able to watch in the
comfort of our living rooms while government officials ceremoniously engage in
the barbaric practice of killing fellow human beings.
In defending those facing the death penalty, I have frequent contact with death
row prisoners across the country. As the debate on televising executions became a
hot topic, clients began to express their feelings about becoming a source of public
entertainment. Many were strongly against such a notion, while others felt it might
help the struggle to end capital punishment. One appeared to be preoccupied with
the thought of gaining a few minutes of notoriety. Their comments caused me to
reevaluate the issue in a much more personal context. I still appreciate the more
global arguments for televising executions, but now feel they are wrong: I do not
want those whom I represent to be the subject of America's seemingly unquench-
able appetite for violent and tasteless amusement.
Executions bring out the worst in people. The history of public killings is a
pathetic commentary on a species that prides itself on being civilized. Regardless
of the country, the effect has been the same. The death scene lures crowds as if it
were a featured sporting event.
One of the last public executions in this country involved a hanging in Owens-
boro, Kentucky, on August 14, 1936. Rainey Bethea, African-American, had been
convicted of rape. A photograph was taken of the scene just seconds after the trap
doors sprung the man into eternity. He was dangling in the presence of more than
20,000 spectators. People can be seen gawking from utility poles, leaning out of
windows, and even crammed on the execution platform. Many of the good, God-
fearing citizens were in their Sunday finest. If it were not for the man at the end
of the rope, one would think it was a festive occasion like the fourth of July.
Many of my colleagues in the abolitionist community feel that by televising
executions, a significant segment of the public will be appalled by the reality of
seeing a person killed. But television tends to depersonalize. It is not three dimen-
sional. If anything, I fear that televising executions will make them even more
palatable to the public.
Governments have been publicly inflicting the ultimate penalty upon their sub-
jects since the dawn of mankind. The cruelty involved has often defied even the
most active imagination. People have been stoned, crucified, impaled, garroted,
burned at the stake, drawn and quartered, hung, and shot. The killing goes on.
Society has yet to respond by demanding abolition of capital punishment. And
there has always been the macabre fascination with death, which continues to attract
so many.
Regardless of where one stands on the debate over televising executions, the
most compelling arguments reflect the inescapable conclusion that capital punish-
ment is wrong. The real issue is whether governments should be in the business
of killing. The answer is clear. No.
28
Witness to Another Execution
SUSAN BLAUSTEIN
The road from Austin to Huntsville, Texas, runs past oil rigs and tin-roofed homes
whose ramshackle porches sag under the weight of old refrigerators and trailer
parts, past red barns and white fences and hand-painted signs advertising Brahman
Bulls and Suzie's Bar-B-Q, and on a quiet evening last August, following the road
by a succession of tiny Baptist graveyards and watching the swifts dive and glide
in the deepening blue, I noticed an antilittering sign (DON'T MESS WITH TEXAS!)
and remembered why I was driving northeast. After that night, at least one man
wouldn't be messing with Texas any time soon, and I was going to witness his
execution.
Outwardly a sleepy little Southern town, Huntsville is surrounded by se-
ven prisons that house 11,800 inmates, 376 of them locked in five-by-nine-foot
cells awaiting their carefully premeditated, supposedly painless, government-
administered deaths. The Texas Department of Criminal Justice, known as the
TDC, is Huntsville's principal industry, and during the busier seasons the state
executes as many as two men a week, making the town the nation's capital of
capital punishment. As a member of the press pool, I planned to attend the exe-
cution later that night of Carl Eugene "Bo" Kelly of Waco, Texas, who had spent
twelve years under sentence of death for his part in the brutal murder of two young
men. The series of efforts by Kelly's lawyers to get his execution stayed—on the
grounds that he had suffered brain damage as a result of severe childhood abuse;
that he had been high on barbiturates, Valium, marijuana, and alcohol at the time
of his crime; that he was improperly compelled by police to confess and sentenced
more harshly than his accomplice; that he had been heartwarmingly rehabilitated—
had all failed. That morning, in Austin, the governor's office had informed Kelly's
lead attorney, Rob Owen, that his client's chances of executive clemency were
slim.
The town square was deserted, but beyond its one-block stretch of quaintly
renovated shops I found a glowing white Dairy Queen in which two female prison
guards, both of them in gray uniforms, were sharing gossip and ice-cream sundaes.
Copyright © 1994 by Harper's Magazine. All rights reserved. Reproduced from the May issue by
special permission.
387
The DQ is just a block from the Walls Unit, which houses the death chamber
where, by state law, all executions in Texas must be carried out, but neither guard
knew that another convict was scheduled to die later that night, "at any time," in
the language of the statute, "before the hour of sunrise." Nor did the crowd at
Zach's, a college hangout ten blocks away, where students from Sam Houston State
University (known locally as Sam) were eating nachos and shooting pool. The
university (the second largest business in town) is known nationally for its fine
criminal justice center, which graduates hundreds of "CJ" majors and where ac-
tive-duty TDC officials are trained. Like the prison guards, the students at Zach's
didn't much care that a man was going to be executed in Huntsville that night, but
a freshman dance major volunteered that an escaped convict had taken a female
student hostage a few weeks back. One bright-eyed CJ major named Kevin Pooler
said that because two of his buddies had been murdered recently in Houston he
had no qualms about capital punishment.
"Burn 'em, fry 'em!" shrugged Pooler, who said he hoped to become a pros-
ecutor and then a Supreme Court justice. "So what if a few innocent people slip
through. That's better than having a lot of guilty people on the street! If criminals
start seeing people getting popped off after six months, I'm sorry, but that's going
to change some minds."
The state of Texas apparently has taken its cue from citizens like Pooler. A poll
conducted in 1992 by a group of Texas newspapers found that 79 percent of the
state's citizens favor the death penalty. Since 1976, when the Supreme Court ruled
the death penalty constitutional (thereby resurrecting execution in the United States
after a four-year hiatus), seventy-two men have been executed in Huntsville—more
than twice as many as in Florida, the next most productive state in the execution
market, and more than three times as many as in Virginia and Louisiana, which
rank third and fourth. In the last two years, the rate of Texas executions has more
than tripled, and the seventeen men executed in 1993 alone constitute nearly a
fourth of those put to death since executions resumed in Texas in 1982.
At 8:00 P.M. I called Kelly's lawyers, who told me that his petition had been
denied by the U.S. Court of Appeals for the Fifth Circuit and that a new appeal
had just been faxed to the Supreme Court. This, I knew, meant that Kelly's chances
for a stay of execution had all but vanished, but, as it so happened, I didn't see
him die. The wire services and the Texas press had filled the five available places
in the media pool—that pale reminder of the once madding crowd that for centuries
has reveled in witnessing the grim administration of justice. Prison officials assured
me, however, that I wouldn't have to wait long for my turn, what with twenty-four
more executions scheduled in the next eight weeks. When the death penalty was
reactivated here, the first executions were mobbed. Now they have become so
commonplace that few turn out for them. Nonetheless, I decided to post myself
outside the Walls Unit, which was cordoned off to keep out possible rabble-rousers,
to see who might show up to mark Carl Kelly's death.
Built in 1849 and by the turn of the century decked out with tropical atrium
gardens, turrets, porticoes, and a clock tower that the whole town told time by,
Witness to Another Execution 389
Texas's aptly named oldest prison is now a faceless brick bunker flanked by forty-
foot walls topped by razor wire. A lone guard manned the corner tower, beneath
which a dozen anti-death-penalty demonstrators, known locally as Amnesty people
because of the affiliation some of them have with Amnesty International, had gath-
ered for their sober candlelight vigil. By 11:20 prison officials learned that the
Supreme Court had unanimously denied Kelly a stay. Shortly before midnight the
official witnesses filed inside the Walls to the polite din of the protesters' pots,
pans, and wooden flutes. Suddenly, two pickups roared into the parking lot, spew-
ing out drunken college students who launched into raucous, inebriated choruses
of "You're on the highway to hell" and "So long, farewell, auf wiedersehen, fuck
you."
"Get a life!" a young woman hollered at the Amnesty people as she drove by.
"We're trying to save one!" one demonstrator responded meekly. When one of
the students asked who was being killed and why, and how the protesters would
feel had the inmate's victim been their mother, he was quickly regaled with anti-
death-penalty statistics; Carl Kelly's case never came up.
At 12:27 A.M. the witnesses emerged from the Walls, reporting that Kelly had
been pronounced dead at 12:22; that he had requested wild game for his last meal
but instead was given hamburgers, water, and fries (which he didn't eat); and that
his last words were, "I'm an African warrior, born to bleed, born to die." (The
mother of one of Kelly's victims was not impressed when I read his final words
to her over the phone. "Oh yeah, right," she said. "What about the rest of us?
When I heard he said that, any feelings I might have had for him just kinda snapped
and I said, 'Okay, justice has been served.' ")
Ask anyone in Huntsville and he or she will tell you that the rapid clip of executions
has absolutely nothing to do with life there. "It's just not our issue," explained
City Manager Gene Pipes. ' 'This is the state carrying out a legal mandate that has
nothing to do with the local community. It happens to be DATELINE, HUNTSVILLE,
but it's just not what's being talked about on the square."
Indeed, the morning after Kelly's execution there was no sign anywhere near
the square that anything unusual had happened. The yellow tape outside the Walls
was gone; across the street, in their telltale white prison suits, trusties were mowing
the lawn and hosing down the family car at the TDC director's vast, neo-Georgian
mansion. At the Cafe Texan, the regular 9:30 coffee crowd of retired white ranchers
and constables joshed with a sassy veteran waitress and rehashed old cowboy yarns,
while black workers shouldered trays of steaming, clean dishware and ate in the
kitchen. At the Masonic Lodge coffee klatch, a group of mostly older men (a TDC
guard, a cook, a retired chaplain, an engineer, the county judge, the founder of the
local John Birch Society, and a retired crime-scene photographer) took it upon
themselves to explain that Huntsville had been called the Rome of Texas, built as
it was on seven hills and seven creeks, as well as the Athens of Texas, because
the state's first law school and teachers college were founded here. Huntsville's
founders donated the land for the state penitentiary, confident that legislators would
then also locate the state capital there, but the Texas legislature, by one vote, chose
Austin, and the disappointed Huntsville citizenry had to content itself with the
eleven horse thieves who were the Walls' first reluctant guests.
Over the course of the next few weeks, while waiting my turn to witness an
execution, I discovered that most of the people in town preferred to know as little
as possible about Huntsville's main industry. "This is a marvelous place to raise
a family," said Jane Monday, a former mayor and historian. "It's a university
town, a town that cares a great deal about its young; it's warm, it's cozy, it's a
very caring community. I wouldn't take a million dollars to live anywhere else."
When I asked about the effect all of Huntsville's prisons and executions had on
its young, Monday shook her head firmly. "It might sound funny to you, but I
don't think it affects the children or the community at all."
City Councilman Jimmy Carter at first agreed. "That's the prison system," he
said automatically when I asked why no one in Huntsville seemed to bother about
executions. "The town is very distinct from that. Or maybe that's just part of our
defense mechanism. We don't want to identify with executions or acknowledge
that we are involved with that in any way."
Tommy Cole, a physician whose great-grandfather headed the TDC and whose
family home has abutted the Walls for more than a century, admitted that he too
is unaware of the executions. Dr. Cole likened himself to those living in small
towns outside Nazi death camps. "We just visited Weimar, a few miles outside of
Buchenwald, and no one there had any idea what went on, just like we have no
idea what goes on behind those walls over there," he volunteered over a scotch in
his fuchsia-damasked living room, in which much of the elegantly carved antique
furniture was made by prison labor.
The obliviousness of townspeople to the executions was notable, but more strik-
ing was the way in which career TDC employees involved in the work managed
to keep it from impinging on their consciousness. "It's real simple: I either do my
job or I don't eat," the assistant director for public information, Charles L. Brown,
told me when I asked how he felt about witnessing every execution. "My position
is purely defensible: if I'm going to have to answer questions about it, I ought to
be there. It's got nothing to do with my feelings about the death penalty; I'm just
doing my job professionally and to the best of my ability. It works perfect, in that
regard. And nobody would know whether I'm for or against capital punishment.
You'd be surprised," Brown added, "how many people here are opposed to capital
punishment."
I asked the same question of Brother Cecil McKee, a retired Walls Unit chaplain
whose job it was to walk condemned men to the electric chair until the U.S.
Supreme Court effectively placed a moratorium on executions in 1972. "It was
hard to be there, but I didn't have to see it," he told me. "I closed my eyes....
You know, the flesh burns—it leaves a terrible odor. I'd go home and take my
clothes off, leave 'em out, we'd go to sleep. Next day, I had to send my clothes
to the cleaners. It was just part of the job."
I asked Brother McKee how he felt about assisting the state in taking lives. He
looked at me with watery blue eyes. "I've never said this before: I do not believe
in capital punishment of any kind. My philosophy is this: we have no right to

demean, diminish, or destroy a life. If they can't be rehabilitated, they should be
incarcerated. But I was working in a system that says we're going to do it. It's not
right for me to say how a man should die."
Chaplain McKee's successor, the Reverend Carroll L. Pickett, said that because
the death penalty was in abeyance when he started to work at the Walls, he had
no idea that walking men to their death would be among his responsibilities; his
first walk into the death chamber was "extremely traumatic," he said, not least
because the technique of killing by lethal injection had never been tried before.
Over the years, Reverend Pickett has tried to make the process as humane as
possible by devoting himself to comforting the condemned men and their families,
honoring their final requests, and shortening the time each must lie strapped to the
gurney before receiving his deadly dose.
I asked Reverend Pickett how he would feel if any of the men he escorted
turned out to be innocent. He shook his head impatiently. "I can't deal in 'ifs,' "
he said. "I don't look back at what the man did twelve years ago. I can't get
involved in the legal stuff; I'm not a lawyer. My concern has to be that human
being and what he needs that day."
The reverend may well be at peace about his role in the prison system, but
physicians and rehabilitation specialists told me that TDC employees work under
tremendously stressful and abusive conditions. Not only do many workers suffer
from severe headaches, depression, and alcoholism; they also commonly inflict
their pent-up aggression on their subordinates and spouses—many of whom suffer
serious physical and emotional damage from this battering—and on their children,
who in turn wreak havoc at school and are often rough with their peers. "It's pretty
stressful," admitted Huntsville police detective Dave Collins, who quit his TDC
job after four years spent guarding one of the toughest units at Ferguson, the prison
for youthful offenders. "You see all kinds of garbage in there. A lot of [guards]
let themselves get run over by the inmates; a lot can't take it and quit. Some of
my family members noticed a change in me, said I'd become more cynical."
Sharon, a prison guard in her late forties who declined to give her last name,
works the morning shift on death row. "It's not just tough, it's very depressing,"
she said. "There are not too many people who can do this—who can walk in and
see someone who you know has killed somebody or raped a child, who's not been
out in the free world for ten or fifteen years. You have to get very callous, feeding
a guy that spits in your face and says, 'Yeah, and I'd kill your mother too.' "
Because Texas has no public-defender system, most death-row inmates are forced
to rely on woefully incompetent, court-appointed counsel, and the churning of
court-imposed execution dates and inmates' frantic appeals has meant that a number
of inmates without any legal representation have come within minutes of being
executed. Four death-row inmates in the last four years were found to be innocent
and were released; at least four more have presented to the courts compelling claims
of innocence. But their pleadings have been dismissed repeatedly because Texas
law requires an inmate to produce new evidence of his innocence within thirty days
of his conviction—an impossibly short time for a newly condemned person to

procure trial transcripts (just preparing these often takes the court as long as thirty
days), hire a new lawyer to reinvestigate the case, and file a motion for a new trial.
The thirty-day rule was upheld last year by the U.S. Supreme Court, much to
the horror of Justice Harry A. Blackmun, who in his dissent warned his colleagues
that ' 'the execution of a person who can show that he is innocent comes perilously
close to simple murder."1 The Court majority countered that those with technically
inadmissible evidence can always fall back on executive clemency, "the 'fail-safe'
in our criminal justice system." However, since 1976 not one appeal for clemency
on the grounds of innocence has succeeded in Texas, where decisions are meted
out by the governor and a parole board consisting of political appointees who
follow no fixed set of procedures, are reluctant to second-guess the courts, and are
accountable to no one.
As in many other death-penalty states, the dispensation of capital punishment
in Texas is also tinged with racism. The disproportionate number of blacks on
death row suggests that discriminatory practices continue to infect the state's police
work, jury trials, and capital sentencing. Civil-rights groups have grown increas-
ingly vocal on this issue. Meanwhile, violent crime continues, and frustrated white
citizens, politicians, and law-enforcement officials have organized a slew of vic-
tims' rights groups that furiously condemn defense attorneys' "frivolous delaying
tactics" and call for "justice now."
The debate and the high-stakes legal gambits for inmates' lives take place mostly
in Austin, where a politically ambitious attorney general and a conservative leg-
islature seem intent on maintaining and even expanding the death penalty; in Hous-
ton, which has the fourth-highest homicide rate of the nation's largest cities and
thus has had seven times as many men executed as any other Texas jurisdiction;
and as far away as Washington, where national anti-crime sentiment has inspired
President Clinton to dream up fifty ways to expand the death penalty and the
Supreme Court to progressively narrow death-row inmates' access to the federal
courts.
But the eye of this storm is Huntsville, where the convicted killers wait. Life
on "the row" has little to recommend it. Prisoners can choose to lift weights, work
in the death-row garment factory, or pursue their appeals. Visitation rights are
limited; the inmates are separated from all "free world" beings by bars and a
narrow panel of thick glass laced with wire mesh. Those deemed security risks are
chained inside metal cages when entertaining guests.
"Death row is the loneliest place in the world," said Lester Leroy Bower, a
white, forty-six-year-old inmate who edits one of the row's two newspapers, attends
Bible classes, and studies Hebrew and Greek. "You have people around you all
the time, but you have very few friends. There is too much dying on the row, so
you don't build really true bonds. And the hardest," added this husband and father
of two teenage girls, his voice suddenly subdued, "is separation from family—
never being able to touch 'em, hold 'em."
Death-penalty proponents have little pity for such talk from convicted murderers.
Bower, however, insists he is innocent of the four murders for which he was
sentenced to death in 1984 and says he has strong evidence pointing to four other
suspects. Because of the thirty-day rule, however, no Texas court has agreed to
hear his story.
Bower believes he was framed by corrupt law-enforcement officials allegedly
involved in drug transactions with at least one of the murder victims. All of the
evidence gathered against Bower was circumstantial; potentially exculpatory evi-
dence mysteriously disappeared before the trial. Although within days of his con-
viction witnesses began coming forward with new evidence supporting Bower's
innocence, his lawyer, off on a Mexican vacation, failed to meet the thirty-day
deadline. Bower's harrowing trial experience, followed by a decade spent studying
the cases of his neighbors on the row, has persuaded him that inside Texas's
sometimes Kafkaesque criminal-justice system, one's innocence can have astonish-
ingly little bearing on one's fate.
"You can convict almost anybody in Texas," he told me. "I'm white, fairly
well educated, moderately articulate, have taken paralegal courses, and now I even
have a good lawyer. That puts me a step up on a lot of people—and that has
nothing to do with my innocence! Say I'm black, poor, uneducated, inarticulate,
have no lawyer, have been put through the mill: I haven't got a chance."
Yet most Huntsville residents are sure that those executed in their town are
guilty. "If they were innocent, it would've been found out way back then," insisted
Diamond Kornegay, a retiree who, like many of Huntsville's relative newcomers,
fled crime-ridden Houston for a peaceful life in the country. "Just look at all these
lawyers, all these witnesses and everything!" Diamond, a chatty lady whose
"daddy" was a cotton farmer and who grew up close to Huntsville, said the ex-
ecutions never bothered her.
"It's not a big deal to me. When I was a little bitty girl, they used to open up
the Walls and take the schoolchildren through there. I saw the electric chair, but I
never did think about it; I just put that out of my mind. If anyone ended up getting
killed, well, they just did a bad thing, and that's the law."
It wasn't hard to see how such attitudes have been forged. Each morning, shrill
whistles at 6:00 A.M., 7:00 A.M., and noon (denoting times for head-counting, work
detail, and more head-counting) make it impossible for those within earshot to
forget that their neighbor is a bureaucracy run on involuntary labor. The reminders
continue all day long: trusties in their prison whites performing menial tasks, the
changing of the guards in gray, prison vans trucking manacled inmates from unit
to unit, and the startling profusion of wisecracking sheriffs and wardens who gather
from all over Texas for seminars at Sam's prestigious Criminal Justice Institute
and who stroll through town resplendent in starched jeans, smart cowboy hats,
boots, and huge silver belt buckles.
Each weekday between 11:00 A.M. and 3:00 P.M., convicts from all over Texas
are released at the Walls. For years their first stop was usually Bustin' Loose, a
clothing store one block from the prison, where they could cash their release checks
and pick up new clothes. But the state recently cut the stipend from $200 to $100,
and since most new ex-cons are less willing to blow their few bucks, last fall the
owners of Bustin' Loose were forced to close shop. But before they did, I met a
burglar and a dope dealer there; both were in their twenties and both had trained
to be bricklayers while inside (though neither seemed particularly interested in
laying bricks now that he was free). By early afternoon both men, sporting new
T-shirts and shorts, were stumbling down Twelfth Street, stone drunk.
Most ex-cons hightail it out of Huntsville within hours of being released, using
the Greyhound vouchers the prison provides in their release packets. During my
weeks in Huntsville I would occasionally stop by the Greyhound station to chat
with the men as they waited for their buses to Houston or Dallas, Lubbock, Beau-
mont, or Port Arthur. Most releases I met were repeat offenders; almost all were
Hispanic and black. An immensely unlikable murderer with a gold necklace and
twisted grimace who had served only four years practically spat at me as he assured
me that he had paid his debt to society. One, a large, drunken, white-haired black
man, became quite chummy. He told me his name was Mr. Bum, or Mr. Wannabe,
that he was "a bona fide Christian," that "prison is hell, emotionally, physically,
intellectually, and don't let anybody tell you anything different," and that I was
his kind of woman, baby. When he shook my hand good-bye, he tried to steal my
ring.
On November 9, I learned that my turn had come and that I had been assigned to
the media pool for the execution that night of Anthony Cook, a white thirty-two-
year-old construction worker from nearby Crockett who had abducted and mur-
dered a University of Texas law student in 1988. Cook was what is known in the
trade as "a volunteer," meaning that he had waived his right to appeal and was
ready to submit to his sentence, and it was a pretty sure bet that his execution
would proceed on schedule. Until the last minute, attorney Elizabeth Cohen from
the federally funded Texas Resource Center tried to persuade Cook to change his
mind, but he was not to be swayed. Cook believed that he'd been saved by the
Lord Jesus back in 1991 and that he was headed straight for the right hand of God.
Cook spent his last day with his family, who Cohen said were "not happy"
about his decision and were "having a really hard time." At 4:00 P.M. he was
moved to the Walls' holding cell, and after his double-meat-and-bacon cheese-
burger, strawberry shake, and shower, he and Cohen sat within yards of the death
chamber and talked about God.
"He's doing great, he can't wait," Cohen reported to me afterward. "He has
no interest in changing his mind; he has more interest in bringing me to Christi-
anity. He keeps praying for me, and he looks at me with tears in his eyes because
I'm not saved." After Cohen left, Cook visited with his closest spiritual advisers,
Baptist volunteer chaplains Jack and Irene Wilcox, who later told me Cook begged
them to "follow up on" Cohen's conversion after his death.
Jack Wilcox had nothing but enthusiasm for the force of Cook's conversion.
"We walk into the death house, and he says to me, 'Hey, Jack, I'm excited!' Two
hours before he's going to die and he's excited? I say, 'Fantastic! That's great!'
... This man saw prison five times, he committed a horrible kidnapping and murder
. . . a sure loser!" exclaimed Jack, who himself had found the Lord after a life on
the streets. "And then three years later, you be lookin' at a person prayin' to God."
"We would have liked to have seen him continue with his appeals, because he
was a great witness/' Irene interrupted, "but he believed in the death penalty."
Jack jumped back in, impatient. "It's not for us to say. A lot of the men [on
the row] are upset because he gave up his appeals. I say, 'Look, the man's been
prayin' to God for two years—you don't get between a man and his prayers.' We
wanna let God drive the car," he explained, and then asked whether I had yet let
the Lord Jesus into my heart.
The evening of Cook's execution I attended a City Council meeting where neither
the mayor, city manager, city councilmen, student body president, nor student-
newspaper editor had any idea that Tony Cook had accepted with pleasure the
state's invitation to be put to death later that night. Everyone came in talking about
the day's big news: the Huntsville Hornets' star football coach was retiring after
nineteen years. The main item on the City Council's agenda that evening was a
hotly contested bid by Sam students and five bar owners to get drinking hours
extended from midnight until 1:00 A.M. on weekdays and from 1:00 to 2:00 A.M.
on Saturdays. The initiative lost by a wide margin—and not surprisingly: Huntsville
is heavily Baptist and was dry until 1971. The students were up in arms at the
outcome, and they stormed out of the meeting after threatening to unseat the coun-
cilmen in the upcoming January election (though only a few hundred Sam students
ever bother to vote in local elections).
But I was thinking about that evening's execution. I'd never even seen anyone
die, and here I was, about to witness a man's death, to observe it without objection.
Already I felt sullied, voyeuristic. Yet this is the law, I told myself. What's more,
this one should be easy: this man wants to die. And he did pump four bullets into
that poor law student's head. I kept up this interior debate until it was time to
report in at the TDC "Admin" building, just across from the Walls. I parked near
the Dairy Queen and hurried through the foggy chill to the triple set of doors.
Several reporters had already gathered in the tiny Public Information Office.
Two were chatting with assistant information director Brown about other execu-
tions they had attended; another, like me a first-time witness, was earnestly jotting
down facts from his "Execution Information" briefing packet. Cook had requested
no personal witnesses at his death, Brown told us; the family would not claim the
body, which meant that Cook would be buried at state expense in the Colonel Joe
Byrd Cemetery, named for the late assistant warden who not only supervised every
execution from 1949 until his death in 1964 but also took it upon himself to tend
the dead men's graves.
The phone rang at 11:56. Brown answered. "That's quick; they're ready to go,"
he said, getting up from his desk. We walked across the street to the Walls, some
of us chatting, barely aware of a couple of protesters almost invisible in the fog.
The Walls' handsome old clock face read 10:02. I wondered how many men had
died inside the Walls since its clock last told the correct time.
Once we were inside the gates, an assistant warden led us across the interior
courtyard with locked chain-link fences, down white corridors with white-tile
floors, through one thick gray door after another, each opened with an enormous
brass key. Brown was amazed by the different style of the new warden, Morris
Jones, who was presiding tonight over his first execution. "I tell ya, this Jones,
he's a new kind: quick, quick," he said. "No point in waiting, I guess."
We then were marched single file to the death house. The other woman reporter
must have seen the fearful look in my eyes. She told me that she couldn't sleep
for three nights after her first execution. "Just attend to the business at hand," she
advised. As we sat waiting to be admitted into the witness room, Reverend Pickett
walked Cook the dozen-odd steps from his tiny holding cell with its bright orange
bars, past a shower and toilet, and into the antiseptic death chamber, where he
would be strapped down onto the chrome gurney while the warden and reverend
stood by. I asked public-information officer David Nunnelee whether it made any
difference to him when the men whose death he witnessed were volunteers.
"I appreciate that they accept what they did and want to pay the penalty," he
said, without hesitation. "You gotta respect that."
Defense attorney Owen subsequently disparaged this view. "Actually, Cook was
the perfectly rehabilitated prisoner," Owen said, then mused about the fine theo-
logical line between the insanity plea of an inmate who claims to hear voices, and
is therefore not competent to be executed, and a volunteer such as Cook, whose
execution was expedited because he had heard the voice of Jesus promising him a
heavenly escape from death row.
We got our signal and were abruptly herded into the carpeted witness room,
along with two large wardens in khaki jackets and a small dark man in an even
darker suit, who, I was told, was the one assistant attorney general who never
talked to the press. We stood behind bars and a pane of thick glass, which separated
us from the actual death chamber.
The view was stunning. Cook lay spread-eagled on the gurney, ready, bound
by six thick leather straps. Although the press briefing listed his height as only five
foot six, he looked enormous. His eyes were only partly open; his strong chin
pointed upward. He was balding, and his longish auburn hair looked blond beneath
the chilling fluorescent light. Ace bandages covered both hands and IVs were in-
serted into both forearms, his thin, short-sleeved prison shirt revealing a blurry
tattoo. He wore blue, standard-issue prison garb and his own Etonic sneakers,
purchased, I later learned, in the prison commissary for $21.75.
Near Cook's head stood Warden Jones; near Cook's feet stood Reverend Pickett,
his hands folded. Suddenly I saw movement in front of me and realized that on
Cook's far side was a one-way mirror in which we all were reflected. It was our
own movement, not that of the symmetrical threesome in the death chamber itself,
that had been captured in the glass. The effect was eerie; not only would I witness
an execution but I would witness myself witnessing it. Behind the mirror, in an
adjacent room, stood the executioner (whether man or woman, or more than one,
no one would tell me), who would, upon a signal from the warden, activate the
death device and introduce into Cook's veins the $71.50 fix consisting of what
prison officials term "those substances necessary to cause death": sodium thio-
pental, which is the lethal component, pancuronium bromide, to relax and anes-
thetize, and potassium chloride, to stop the heartbeat.
"Do you have anything to say?" the warden muttered at 12:08. Cook opened
his eyes.
"Yessir," he said, speaking into a big black microphone hung just over his
head. "I just want to tell my family that I love them and I thank the Lord Jesus
for giving me another chance and for saving me."
With that, Cook shut his eyes. The warden gave a small, sharp nod toward the
person or persons behind the mirror. We all stood rigid, frozen. The silence was
absolute, a perfect vacuum. Within seconds Cook took a sudden deep breath,
gagged once, and stiffened his chin upward, all in one gesture. His chest expanded
tremendously when he breathed, as if he had eagerly inhaled his own death. His
arms were still outstretched and bound; his mouth and eyes were slightly open;
nothing else moved.
My eyes slowly traced the contours of his body—the ninety degrees from his
shiny bald crown to the end of his outstretched left arm, down the length of his
pants leg, across the white sneakers, and up the near side—searching for signs of
life, a cough, a twitch, a moan, a second thought. None came. I waited for him to
exhale. But the air he had so urgently seized a moment before remained trapped
in Cook's chest. The show was over; the passage from life to death was horrifyingly
invisible, a silent and efficient erasure.
We waited. Finally, the warden called in Dr. Darrell Wells, a bearded emer-
gency-room physician who attends most of the prison's executions. Wells checked
Cook's eyes with a flashlight and his heart with a stethoscope. The play had ended.
At 12:15, within five minutes of Anthony Cook's last gasp, the doctor pronounced
him dead.
We filed out the way we came, more quickly this time, with little conversation.
When I reached the Public Information Office, one of the reporters was already
calling his bureau.
"Hi, Harry. He's history," he greeted his editor. Another reporter filed his story
by modem while press officer Brown invited us all to the opening of a new 2,250-
bed prison later that morning.
"Cold, ain't it?" a thin young guard greeted me as I walked back to my car.
The clock at the Walls still read 10:02. A yellow traffic light flashed in front of
the closed, eternally lit Dairy Queen. Cook's death made the 1:00 A.M. news on
CNN, flickering in the nation's consciousness but an instant.
By 7:30 that morning at the Huntsville Funeral Home (which handles the bodies
of all executed men), Tony Cook's mother, stepfather, brother, sister, assorted in-
laws, cousins, and the Wilcoxes were paying their last respects to his open casket.
Cook looked smaller than he had on the gurney; he had pretty, long eyelashes and
delicate hands, a slightly cleft chin, and the shadow of a beard. He was dressed
now in a blue oxford shirt with white stripes, and his mother stood over him, gently
caressing his thin hair, his cheek, his ear. "He feels like you could just squeeze
him back to life," she said. He had called her two hours before his death to tell
her how excited he was about dying. "He certainly was at peace with hisself,"
she said.
"No more cages," sighed his sister as she touched her brother's chest, arms,
face. "He's free, free, free!" She clutched his hand again and again, then finally
kissed his forehead good-bye. I tried to fathom what it must feel like, after five
years of no physical contact, to be allowed to touch a son or brother only after he
is dead.
We followed the hearse through town to the muddy cemetery, where the six
inmates who had prepared the grave were warming themselves over an ashcan fire.
The seventeen family members clustered together, held one another, and cried,
while Reverend Pickett read some prayers. Chaplain Jack Wilcox, in a hot-pink tie
with a bright paisley print, said he'd never heard Tony say a bad word about
anybody and read us a statement that Cook had written for the occasion: "Someday
you will read in the papers that I have died—don't you believe a word of it..."
After the service Chaplain Wilcox pointed to one of the hundreds of crosses in
the cemetery. "That's one of Tony's best friends, right there," he said. Since the
markers have only prison numbers and no names, I asked how he knew. "I buried
him," he said. "Last June." I later asked Reverend Pickett why the crosses have
no names.
"It makes it more accurate," he told me. "We have many at the prison with
the same name. There'll be another Tony Cook, but there'll never be another num-
ber like that number."
The air was dank and cold as I drove out of town, and I hoped the day's sharp
rawness would clear my numbed senses. I headed north out to farm route 980, past
sallow fields, unkempt trailer clusters, and the occasional satellite dish. Suddenly
I saw, strung from a ragged barbed-wire fence, what looked like a wild dog or
wolf, hanging upside down by its right rear foot. Its tail was splayed in a lazy S;
its other legs were beautifully poised as if the animal had been caught in mid-leap
by a photographer's lens.
I sped by, stopped, then backed up to make sure I wasn't hallucinating. The
animal had been shot in the right shoulder, and bloody organs were dribbling out.
So far only a single fly had discovered the catch; long-tailed, white-bellied birds
took no notice as they hopped along the fence and pecked at the unmowed field.
Like somebody's trophy, the animal hung there, far more dignified than its
surroundings. It was a coyote, I was later told, a predator. Nothing to feel sorry
for, in other words: all crossbreeds were coyotes out here, and they ate the calves
and young deer. It was hung there "as a warning to other coyotes," said one
veteran hunter; another suggested it was hung "to let other farmers know they're
doin' their part" in keeping the coyote population down. "That's just kinda the
old way here in Texas," a former state game warden told me. Another old-timer,
a man who'd mounted the rear end of a deer on the wall of his tiny living room,
gave one more reason: "Somebody wants to show off that he killed somethin',"
he said, then broke into a toothless grin.
All these explanations somehow made sense. But I wondered why I was so
transfixed by this roadside display of a predator's comeuppance. Something about
the crude, fresh death jarred me in a way that Cook's execution had not. That
meticulous choreography had anesthetized me to the reality that a man was being
killed before my eyes. But the flesh and blood of this handsome, dripping creature
made both its death and its outlaw status immediately palpable.
From what I'd read about the stench of electrocution and the vividness of public
hangings, I imagined that witnessing deaths by these means would have an im-
mediacy that would preclude numbness. The lethal-injection method, first used in
Texas in 1982 and now adopted by most death-penalty states as more humane, has
turned dying into a still life, thereby enabling the state to kill without anyone
involved feeling anything at all.
I wondered how viewing such a non-event could satisfy the desire for retribution
so often expressed by death-penalty advocates and the families of victims. I won-
dered whether Huntsville's sterile, bloodless executions of the last twelve years
might partly account for residents' wholesale disinterest and denial that what went
on deep inside the Walls might have anything to do with them.
But it's not just here in Huntsville; we are all inured to such smooth extermi-
nations. Any remaining glimmers of doubt—about whether the man received due
process, about his guilt, about our right to take a life—cause us to rationalize these
deaths with such catchwords as "heinous," "deserved," "deterrent," "justice,"
and "painless." We have perfected the art of institutional killing to the degree that
it has deadened our natural, quintessentially human response to death.
When I returned to town, a student activist was waiting at my hotel to let me know
how upset he and his colleagues were by the City Council's refusal to extend legal
drinking hours. Outside my window, Sam cheerleaders feverishly waved their pink
banners in practice for Saturday's game. A TDC official phoned to tell me not to
bother to show up the following night for Dorsie Johnson's execution: he'd just
gotten stayed until January.
Feeling hungry, I decided to check out Mr. Hamburger, Huntsville's original
fast-food shack, which since it went up in the Fifties has stood a block west of the
Walls. A now-faded sandwich board out front reads, TRY OUR KILLER BURGERS.
So I tried one: "Double meat, double cheese, lettuce, tomato, mustard, may-
onnaise, pickle, and jalapenos," explained Willie Mae Jenkins, a pretty short-order
cook with a monogrammed gold tooth who has been serving up Killer and Jr.
Killer Burgers for eighteen years.
"So why's it called a Killer Burger?" I asked.
Willie Mae smiled, apparently surprised by the question and a little embarrassed
at not having a ready answer. "I really don't know," she said. "I think it has
something to do with the jalapenos."
Note
1. After a career of affirming the death penalty, Justice Blackmun recently concluded
that capital punishment is not constitutional as it is currently applied in Texas and other
states, in large measure because he now firmly believes that innocent men have in fact been
executed. In February he dissented from an unsigned Supreme Court order denying review
of yet another Texas death-penalty case. Blackmun concluded that * 'the death penalty ex-
periment has failed." "Perhaps," he wrote, "one day this Court will develop procedural
rules or verbal formulas that actually will provide consistency, fairness, and reliability in a
capital-sentencing scheme. I am not optimistic that such a day will come. I am more opti-
mistic, though, that this Court eventually will conclude that the effort to eliminate arbitrar-
iness while preserving fairness 'in the affliction of (death) is so plainly doomed to failure
that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980 . . . )
I may not live to see that day, but I have faith that eventually it will arrive. The path the
Court has chosen lessens us all. I dissent."
29
Millions Misspent: What Politicians

Don't Say About the High Costs of the
Death Penalty
RICHARD C. DIETER
Introduction
Over two-thirds of the states and the federal government have installed an exor-
bitantly expensive system of capital punishment which has been a failure by
any measure of effectiveness. Literally hundreds of millions of dollars have al-
ready been spent on a response to crime which is calculated to be carried out on
a few people each year and which has done nothing to stem the rise in violent
crime....
Local governments often bear the brunt of capital punishment costs and are
particularly burdened. A single death penalty trial can exhaust a county's resources.
Politicians singing the praises of the death penalty rarely address the question of
whether a government's resources might be more effectively put to use in other
methods of fighting crime. A million dollars spent pursuing the execution of one
defendant could provide far more effective long-term crime reduction: many ad-
ditional police officers; speedier trials; or drug rehabilitation programs. Instead, in
today's political atmosphere, politicians worry about appearing soft on crime, even
if soft means espousing proven methods of crime reduction. Thus, there is little
debate about whether the death penalty accomplishes any good at all....
In the 1990 elections, politicians were particularly blatant in their promotion of
the death penalty. It was advanced at all levels of the political process as an answer
to crime and was used by liberals and conservatives alike. This year, the death
penalty rhetoric, while not as blatant, continues the charade: vital crime fighting
programs are being cut while the high-priced death penalty goes unchecked....
This report will focus first on the role the death penalty plays in the economic
crisis facing states and local governments. As budgets everywhere are being tight-
Reprinted by permission of the author from a report of the Death Penalty Information Center, Wash-
ington, D.C., revised edition, fall 1994. Some footnotes and text have been deleted and the remaining
footnotes renumbered. Amanda Smith assisted in the preparation of the epilogue.
401
ened, the death penalty looms as an exorbitant and superfluous * 'luxury item."
Some counties have been pushed to the brink of bankruptcy and have had to enact
repeated tax increases to fund these extremely expensive cases. As money is spent
on the death penalty, it is thereby less available for the very programs which are
the backbone of the effort to reduce crime in this country. Secondly, the report
will illustrate how politicians have manipulated the death penalty issue and avoided
debate on the real causes of crime. Their approach has been typically marked by
a simplistic rhetoric of revenge which ignores the ineffectiveness and costs of
capital punishment. This superficial treatment comes precisely at a time when the
economic crisis in criminal justice and crime prevention demands that the death
penalty be given a harder look.
The Financial Costs of the Death Penalty
Death penalty cases are much more expensive than other criminal cases and cost
more than imprisonment for life with no possibility of parole. In California, capital
trials are six times more costly than other murder trials.1 A study in Kansas indi-
cated that a capital trial costs $116,700 more than an ordinary murder trial.2 Com-
plex pre-trial motions, lengthy jury selections, and expenses for expert witnesses
are all likely to add to the costs in death penalty cases. The irreversibility of the
death sentence requires courts to follow heightened due process in the preparation
and course of the trial. The separate sentencing phase of the trial can take even
longer than the guilt or innocence phase of the trial. And defendants are much
more likely to insist on a trial when they are facing a possible death sentence.
After conviction, there are constitutionally mandated appeals which involve both
prosecution and defense costs.
Most of these costs occur in every case for which capital punishment is sought,
regardless of the outcome. Thus, the true cost of the death penalty includes all the
added expenses of the ' 'unsuccessful" trials in which the death penalty is sought
but not achieved. Moreover, if a defendant is convicted but not given the death
sentence, the state will still incur the costs of life imprisonment, in addition to the
increased trial expenses. For the states which employ the death penalty, this luxury
comes at a high price. In Texas, a death penalty case costs taxpayers an average
of $2.3 million, about three times the cost of imprisoning someone in a single cell
at the highest security level for 40 years.3 In Florida, each execution is costing the
state $3.2 million.4 In financially strapped California, one report estimated that the
state could save $90 million each year by abolishing capital punishment.5 The New
York Department of Correctional Services estimated that implementing the death
penalty would cost the state about $118 million annually.6
The Recession and the Death Penalty

The effects of the present financial crisis on the criminal justice system vary widely,
but the common thread has been cutbacks in critical areas.... New Jersey, for
What Politicians Don't Say About the High Costs of the Death Penalty 403
example, laid off more than 500 police officers in 1991. At the same time, it was
implementing a death penalty which would cost an estimated $16 million per year,7
more than enough to hire the same number of officers at a salary of $30,000 per
year. In Florida, a mid-year budget cut of $45 million for the Department of Cor-
rections forced the early release of 3,000 inmates. Yet, by 1988 Florida had spent
$57.2 million to accomplish the execution of 18 people.8 It costs six times more
to execute a person in Florida than to incarcerate a prisoner for life with no parole.9
In contrast, Professors Richard Moran and Joseph Ellis estimated that the money
it would take to implement the death penalty in New York for just five years would
be enough to fund 250 additional police officers and build prisons for 6,000 in-
mates.10 . . .
Illinois built new prisons but does not have the funds to open them. It does,
however, have the fourth largest death row in the country. Georgia's Department
of Corrections lost over 900 positions in the past year while local counties have
had to raise taxes to pay for death penalty trials.
Police officers on the beat, imprisonment of offenders, and a functioning crim-
inal justice and correctional system form the heart of the nation's response to crime.
Yet, in state after state, these programs are suffering drastic cuts while the death
penalty absorbs time, money and political attention.
The Cost to Local Governments
An increasingly significant consequence of the death penalty in the United States

is the crushing financial burden it places on local governments. The current eco-
nomic recession has made it clear that there is no unlimited source of government
largesse. Counties, which bear the brunt of the costs of death penalty trials, are
also the primary deliverers of local health and human services in the public sector.11
Hard choices have to be made among the demands of providing essential services,
creative crime reduction programs such as community policing, and the vigorous
pursuit of a few death penalty cases.
As Scott Harshbarger, Attorney General of Massachusetts, put it: "Virtually
every major program designed to address the underlying causes of violence and to
support the poor, vulnerable, powerless victims of crime is being cut even further
to the bone.... In this context, the proposition that the death penalty is a needed
addition to our arsenal of weapons lacks credibility and is, as a sheer matter of
equity, morally irresponsible. If this is really the best we can do, then our public
value system is bankrupt and we have truly lost our way."12
While state and national politicians promote the death penalty, the county gov-
ernment is typically responsible for the costs of prosecution and the costs of the
criminal trial. In some cases, the county is also responsible for the costs of de-
fending the indigent. Georgia, Alabama and Arkansas, for example, provide little
or no funding for indigent defense from the state treasury.13 In Lincoln County,
Georgia, citizens have had to face repeated tax increases just to fund one capital
case. Even where the state provides some of the money for the counties to pursue
the death penalty, the burden on the county can be crushing. California, for ex-
ample, was spending $10 million a year reimbursing counties for expert witnesses,
investigators and other death penalty defense costs, plus $2 million more to help
pay for the overall cost of murder trials in smaller counties. (Now, even that re-
imbursement is being cut.) But many financially strapped smaller counties still
could not afford to prosecute the complicated death penalty cases. Some small
counties have only one prosecutor with little or no experience in death penalty
cases, no investigators, and only a single Superior Court judge.14 . . .
In Meriwether County, Georgia, a county of 21,000 residents and a $4 million
annual budget, the prosecutor sought the death penalty three times for Eddie Lee
Spraggins, a mentally retarded man. The case cost the county $84,000, not includ-
ing the defense attorney's bill for appealing, and the third conviction was again
overturned by the Georgia Supreme Court.15 Spraggins was finally granted a plea
and received a life sentence. In Mississippi, Kemper and Lauderdale Counties re-
cently conducted a border survey battle to avoid responsibility for a capital murder
trial. Faced with a case that could cost the county $100,000, Kemper County
wanted to show that the scene of the murder was outside thek border and conducted
two surveys of the site. County Supervisor Mike Luke explained, ' 'As much as we
were talking about the taxpayers of Kemper County having to pay out, we believed
we needed to be sure." Luke said that the decision to seek the death penalty was
not his—he only had to come up with the money. Lauderdale County, where the
trial was originally scheduled, has now sent a bill to Kemper County for expenses
incurred while holding the defendant in jail for 19 months. Kemper County is
considering how much it will have to raise taxes just to pay the initial costs of the
prosecution.... 16
With more death row inmates and more executions than any other state, Texas
is also experiencing the high costs of executions. Norman Kinne, Dallas County
District Attorney, expressed his frustration at the expense: "[E]ven though I'm a
firm believer in the death penalty, I also understand what the cost is. If you can
be satisfied with putting a person in the penitentiary for the rest of his life... I
think maybe we have to be satisfied with that as opposed to spending $1 million
to try and get them executed.... I think we could use (the money) better for
additional penitentiary space, rehabilitation efforts, drug rehabilitation, education,
(and) especially devote a lo: of attention to juveniles."17
Vincent Perini, of the Texas Bar Association, calls the death penalty a "luxury":
"There's some things that a modern American city and state have got to have.
You have to have police and fire and public safety protection. You have to have
a criminal justice system. You do not have to have a death penalty. The death
penalty in criminal justice is kind of a luxury item. It's an add-on; it's an optional
item when you buy your criminal justice vehicle."18 Chief Criminal Judge, James
Ellis, came to a similar conclusion in Oregon: "Whether you're for it or against
it, I think the fact is that Oregon simply can't afford it."19 James Exum, Chief
Justice of the North Carolina Supreme Court, agrees: "I think those of us involved
in prosecuting these (death penalty) cases have this uneasy notion that... these
cases are very time-consuming and very troublesome and take a lot of resources
that might be better spent on other kinds of crimes...."
Efforts are under way in both Congress and the Supreme Court to reduce the
avenues of appeal available to death row inmates. But most of the costs associated
with the death penalty occur at the trial level.20 Whatever effect cutting back on
the writ of habeas corpus may have on the time from trial to execution, it is not
clear that the changes will make the death penalty any less expensive, and they
may result in the execution of innocent people. With the number of people on
death row growing each year, the overall costs of the death penalty are likely to
increase.
Some state appeals courts are overwhelmed with death penalty cases. The Cal-
ifornia Supreme Court, for example, spends more than half its time reviewing death
cases.21 The Florida Supreme Court also spends about half its time on death penalty
cases.22 Many governors spend a significant percentage of their time reviewing
clemency petitions and more will face this task as executions spread. As John
Dixon, Chief Justice (Retired) of the Louisiana Supreme Court, said: "The people
have a constitutional right to the death penalty and we'll do our best to make it
work rationally. But you can see what it's doing. Capital punishment is destroying
the system." 23 ...
Epilogue—Fall 1994
Since the publication of Millions Misspent in the fall of 1992, more judges, pros-
ecutors and other state officials have joined those questioning the death penalty in
light of its exorbitant costs. At a time when crime is the nation's primary concern,
new data confirms the Report's earlier conclusion that the death penalty is draining
state treasuries of funds which could be spent on effective crime prevention mea-
sures.
The financial burden is particularly acute in counties where administrators are
being forced to choose between raising taxes and bankruptcy in order to prosecute
death penalty cases. While many politicians continue to ignore these costs in using
the death penalty to sound tough, some prosecutors are now deciding not to seek
executions because the cases are simply too expensive.
The Duke University Study

In May 1993, a federally funded study brought a new perspective to the cost
debate.24 This model study was prompted by an American Bar Association proposal
and was conducted at Duke University's Terry Sanford Institute of Public Policy.
It is one of the most comprehensive and thorough analyses on this topic.
Authors Philip Cook and Donna Slawson spent two years comparing the costs
of adjudicating capital and noncapital cases in North Carolina and concluded that
capital cases cost at least an extra $2.16 million per execution, compared to what
taxpayers would have spent if defendants were tried without the death penalty and
sentenced to life in prison.25 Moreover, the bulk of those costs occur at the trial
level. Applying their figures on a national level implies that $82 million was spent
just for U.S. executions in 1993, and that the national bill for the death penalty
has been over $500 million since the death penalty was reinstated.26 Yet, the na-
tional concern about crime indicates that few feel safer for all this expense.
Time Is Money
Death penalty cases are so expensive because they take longer at every stage and
require vast resources for both the prosecution and the defense. The authors of the
North Carolina study identified 24 principal areas in which a death penalty case
would likely be more expensive than if the case were tried non-capitally.27 These
areas included:
• More investigative work by both law enforcement officials and the defense
team
• More pre-trial motions
• More questioning concerning individual jurors' views on capital punishment
and more peremptory challenges to jurors at jury selection
• The appointment of two defense attorneys
• A longer and more complex trial
• A separate penalty phase conducted in front of a jury
• A more thorough review of the case on direct appeal
• More post-trial motions
• Greater likelihood that counsel will be appointed for a federal habeas corpus
petition
• Greater likelihood that there will be full briefing and argument on federal
review
• More preparation for, and a longer clemency proceeding.
The North Carolina study estimated that a death penalty trial takes about four
times longer than a non-capital murder trial. And, of course, not every death penalty
trial results in a death sentence. Based on the experience in North Carolina, the
authors found that less than a third of capital trials resulted in a death sentence.28
Nevertheless, each of the these trials had the extra expense associated with death
penalty proceedings. The trial costs alone were about $200,000 more for each death
penalty imposed than if no death penalty was involved.29
The authors computed the costs of appealing a death penalty case and subtracted
the savings which accrue to the state when an execution finally occurs. The "sav-
ings," which are due to the inmate no longer being kept at state expense, only
occur when an execution is actually carried out. As with the trial level, there is a
"failure" rate resulting from the fact that many inmates who are sentenced to death
will never be executed. Many cases will be overturned on appeal, some inmates
will commit suicide, others will die of natural causes. Again, based on the expe-
rience in North Carolina, the authors estimated that only one inmate would likely
be executed for every ten who are sentenced to death.30 This is actually higher than
the national rate where only about one in every eleven cases which have been
resolved has resulted in an execution.31
Bulk of Costs at Trial Level

The importance of accounting for this failure rate is critical for two reasons. First,
it represents a truer picture of what it is actually costing the state to achieve an
execution. It is not just the cost of a single person's trial and appeals. That would
be comparable to saying that the cost of landing a man on the moon was the cost
of fuel for the one rocket which brought him there. The state has to pay more for
all the trials and appeals which start out as death penalty cases but for which there
will never be the "saving" associated with an execution.
Second, the per execution costs reveal that the bulk of death penalty costs occur
at the trial level. Often those who acknowledge the high costs of the death penalty
believe that the expense is due to "endless appeals." By taking into account the
capital cases which will never result in an execution, the North Carolina study
makes clear that the trials produce the largest share of death penalty costs and
these costs will not be substantially lessened by tinkering with the opportunities
that death row inmates have to appeal. A significant financial corollary of this
finding is that taxpayers must pay death penalty expenses up front, whereas the
costs of a life sentence are meted out gradually over many years, making that
alternative even less expensive.
Evidence from Other States

There have been numerous indications from other areas of the country that the
death penalty is straining the budgets of state and local governments and that the
financial drain is getting worse. Some countries have been brought to the brink of
bankruptcy because of death penalty cases. More county commissioners have risked
going to jail for balking at paying for capital prosecutions,32 while others reluctantly
raise taxes to pay the costs of even one capital case.
• In San Diego, California, the prosecution costs alone (not counting defense
costs or appeals) for three capital cases averaged over half a million dollars
each.33 One estimate puts the total California death penalty expense bill at $1
billion since 1977.34 California has executed two people during that time, one
of whom refused to appeal his case.
• In Jasper County, Mississippi, the Circuit Judge and the District Attorney had
to address the county supervisors to get more money for death penalty pros-
ecutions. The only solution was to raise county taxes. "It's going to be a
fairly substantial increase," said the board president, John Sims. "I hope the
taxpayers understand... ."35
• In South Carolina, The Sun News reported that the bills for death penalty cases
are "skyrocketing" because of a state supreme court ruling that attorneys in
death penalty cases deserve reasonable fees. Before the decision, attorneys
received no more than $2,500 for each death penalty case.36
• In Harris County, Texas, there are 135 pending death penalty cases. State
Judge Miron Love estimated that if the death penalty is assessed in just 20
percent of these cases, it will cost the taxpayers a minimum of $60 million.
Judge Love, who oversees the county's courts, remarked: "We're running the
county out of money."37
Reactions to the High Costs

There have been many similar reactions from state and local officials who wonder
about the wisdom of spending such exorbitant sums on such unpredictable and
isolated cases. In Tennessee, the number of people sentenced to death has dropped
because prosecutors say death penalty cases cost too much.38
In Texas, Judge Doug Shaver from Houston was also concerned about the high
costs of so many capital cases: "I can't figure out why our county is prosecuting
so many more [death] cases than comparably large counties around Texas. When
the law changed so defendants can be sentenced to 40 years flat time [as an alter-
native to death], and when you start taking into account what the taxpayers are
getting for their money, it seems like some defendants should be tried ... without
the death penalty."39 Former Texas Attorney General Jim Mattox agrees: "Life
without parole could save millions of dollars." "In other words," he wrote, "it's
cheaper to lock 'em up and throw away the key.... As violent crime continues to
escalate, it's something to consider."40
California has been hit particularly hard by natural disasters and the economic
recession. Many social programs have had to be cut. Yet the state continues to
spend hundreds of millions of dollars on the death penalty which has resulted
in two executions in seventeen years. Even supporters of the death penalty rec-
ognize that it is a financial loser. In financially strapped Orange County, Vanda
Bresnan, who manages the criminal courts, remarked: "Even though I do be-
lieve in the death penalty, I wonder how long the state or county can afford
it,"41 Defense attorney Gary Proctor, who practices in the same county, believes
that the solution will be found by cutting other services: "What I see happening
is that other services provided to the taxpayer—such as libraries and parks—will
be cut back. Certain people are not aware of the tradeoffs." He added: "Strong
beliefs are easy enough to hold if you don't think they're coming out of your
pocket."42
In rural Kentucky, tax bases are small and budgets are already stretched. When
an expensive capital case is about to be heard in court, the state and county often
argue for weeks about who will pay. As Michael Mager, executive director of the
Kentucky County Judge-Executives Association, points out, "A little rural county
in Kentucky just can't deal with bills like that." 43 ...
Conclusion
Recent studies of death penalty costs reinforce the existing evidence that the death
penalty is becoming unmanageably expensive. Like a black hole, it absorbs vast
quantities of resources but emits no light. Nevertheless, politicians and much of
the public are drawn to it in the hope of finding a quick fix to the crime problem.
But as the actual costs of capital punishment become clearer, the public should be
in a better position to judge the death penalty as they would other programs. If a
program is highly cost intensive, given to years of litigious expense, focused on
only a few individuals, and produces no measurable results, then it should be
replaced by better alternatives.
Notes
1. S. Magagnini, Closing Death Row Would Save State $90 Million a Year, The Sac-
ramento Bee, March 28, 1988, at 1.
2. Kansas Legislative Research Department study, cited in D. Von Drehle, Bottom Line:
Life in Prison One-sixth as Expensive, The Miami Herald, July 10, 1988, at 12A.
3. C. Hoppe, Executions Cost Texas Millions, The Dallas Morning News, March 8,
1992, at 1A.
4. D. Von Drehle, Bottom Line: Life in Prison One-sixth as Expensive, The Miami
Herald, July 10, 1988, at 12A.
5. Magagnini, see note 1.
6. The New York Department of Correctional Services study cited in Moran & Ellis,
Death Penalty: Luxury Item, New York Newsday, June 14, 1989, at 60; see also the Mas-
sachusetts Bar Association Section News, The Dollar and Human Costs of the Death Pen-
alty, April 1992, at 5.
7. M. Garey, The Cost of Taking A Life: Dollars and Sense of the Death Penalty, 18
University of California Davis Law Review 1221, 1261 (1985).
8. Von Drehle, see note 4.
9. Id.
10. Moran & Ellis, see note 6, at 62
11. Testimony of Carole Carpenter on behalf of the National Association of Counties
before the U.S. Senate Subcommittee on Juvenile Justice, April 29, 1992, at 7.
12. Harshbarger, Statement on Reinstating the Death Penalty in the Commonwealth,
Massachusetts Bar Association, see note 6, at 3.
13. Tabak & Lane, Judicial Activism and Legislative "Reform" of Federal Habeas Cor-
pus: A Critical Analysis of Recent Developments and Current Proposals, 55 Albany Law
Review 1, 31 (1991).
15. K. Wood, Can State Afford Fourth Prosecution ofSpraggins?, Fulton County Daily
Report, March 3, 1988, at 1.
16. Maxwell Murder Trial May Up Kemper Taxes, The Meridian Star (Mississippi), July
21, 1992; phone conversation with Michael Luke, September 11, 1992.
17. Hoppe, The Dallas Morning News, see note 3.
18. Id.
19. J. Painter, Death Penalty Seen as Too Costly for Oregon's Pocketbook, The Ore-
gonian (Portland), July 27, 1987.
20. Kansas, for example, estimated that the annual cost for implementing the death
penalty would be $11.4 million, of which $9.2 million would be for trial costs. Kansas
Legislative Research Dept. Memorandum, Feb. 11, 1987. New York estimated a cost of
$1.8 million per case, through the first level of appeals, of which $1.5 million would be
trial costs. Capital Losses: The Price of the Death Penalty for New York State, NY State
Defenders Association, Albany, 1982.
22. M. Hansen, Politics and the Death Penalty, The Palm Beach Review's Florida Su-
preme Court Report, Feb. 25, 1991, at 10B, 26B.
23. D. Kaplan, Death Mill, USA, The National Law Journal, May 9, 1989, at 40.
24. P. Cook and D. Slawson, The Costs of Processing Murder Cases in North Carolina
(May, 1993).
25. Id. at 98.
26. There were 38 executions in the U.S. in 1993 and there have been 252 executions
since 1976 as of Sept. 20, 1994. See NAACP Legal Defense & Educational Fund, Inc.,
Death Row, U.S.A. 5 (Summer 1994) (7 additional executions occurred since that publica-
tion).
27. P. Cook, note 24, at 22-23.
28. Id. at 68.
29. Id. at 70.
30. Id. at 98.
31. Bureau of Justice Statistics, Capital Punishment 1992, at 10, Appendix table 1 (1993)
(of 4,704 people sentenced to death, 2,129 were removed from death row, including 188
executions).
32. See J. Germ, Counties Balk at Paying Experts to Testify for Indigents, Louisville
Courier-Journal, April 4, 1994, at 1.
33. See B. Callahan, Lawyers No Longer Get Millions in Capital Cases, San Diego
Tribune, June 26, 1994, at A-l, A-18 (prosecutions of David Lucas, Ronaldo Ayala, and
Billy Ray Waldon).
34. C. Linder, Capital Cases Are Crippling State Courts, The Sacramento Bee, Sept. 5,
1993, at Forum 1.
35. M. Hatcher, Judge and D.A. Warn Supervisors About High Cost of Capital Murder
Trials, Jasper County News, Mar. 9, 1994.
36. B. Kudelka, The High Cost of Pursuing the Death Penalty, The Sun News (Myrtle
Beach, SC), May 1, 1994, at 1A.
37. J. Makeig, Capital Justice Takes a Lot of County Capital, The Houston Chronicle,
Aug. 15, 1994.
38. Death Sentences Fall in Tenn.; Costs Cited, The Commercial Appeal (Memphis),
Sept. 6, 1994 (Associated Press).
39. J. Makeig, note 37.
40. J. Mattox, Texas' Death Penalty Dilemma, The Dallas Morning News, Aug. 25,
1993.
41. A. Tugend, Death Penalty's High Cost, The Orange County Register, Aug. 9, 1993,
at 1.
42. Id. at 2.
43. J. Gerth, Counties Balk at Paying Experts to Testify for Indigents, Louisville Courier-
Journal, April 4, 1994, at 1.
PART VII
The Death Penalty:

For and Against
Who supports the death penalty in America? Who opposes it? How do its sup-
porters and opponents weave together the facts, their interpretation, and various
alternative hypotheses into coherent arguments? Because this part is devoted ex-
clusively to reprinting selected arguments for and against, it may be helpful to look
first at the nature and organization of the disputants.
There is not now and there never has been any national organization devoted
to the single issue of defending and expanding the use of the death penalty in this
country—unless one counts the Association of Government Attorneys in Capital
Litigation, mordantly known as the Fryers Club—the prosecutors who seek capital
convictions and then fight in the appellate courts not to lose them.1 Such organized
support as there is for the death penalty is confined at present to a handful of multi-
issue organizations in law enforcement, politics, and religion. Since the 1970s, the
National District Attorneys Association,2 the National Association of Attorneys
General,3 and the Washington Legal Foundation4 have endorsed the death penalty.
So have the National Sheriffs' Association,5 the International Association of Chiefs
of Police,6 and the International Conference of Police Associations.7 Testimony
from these organizations has often been presented in state legislatures and Congress
when hearings have been held on the death penalty in recent years. Fundamentalist
and Pentecostal churches as well as the Church of Jesus Christ of Latter-day Saints
(Mormons) typically support the death penalty on Old Testament biblical grounds.8
In the 1970s the National Association of Evangelicals (NAE)—representing more
than ten million conservative Christians and 47 different denominations9—and the
Moral Majority were among the Christian groups supporting the death penalty.10
So does its successor, the Christian Coalition; according to executive director Rob-
ert E. Reed Jr., "The Christian Coalition does support the death penalty in capital
murder cases as well as other cases involving gross brutality."11 For two decades
or more, leading Republican Party spokesmen have endorsed the death penalty.12
Opposition to the death penalty, on the other hand, has been nationally organ-
ized, beginning with the American Society for the Abolition of Capital Punishment,
founded in Philadelphia in 1845, and succeeded by the American League to Abolish
Capital Punishment, founded in New York in 1926.13 Neither organization exists
today. However, in July 1976, immediately after the Supreme Court's decision in
411
412 The Death Penalty: For and Against
Gregg, the NCADP was organized in New York under the initiative of Henry
Schwarzschild, then director of the Capital Punishment Project of the ACLU. With
its headquarters in Washington, D.C., the NCADP consists of several dozen state
and national affiliates. Chief among these are the ACLU, AI-USA, and the LDF.
Most of the mainstream Protestant churches are affiliated (Baptists, Episcopalians,
Lutherans, Methodists, Presbyterians, United Church of Christ). So are several
Catholic organizations (U.S. Catholic Conference, Catholic Peace Fellowship) and
Jewish groups (Jewish Peace Fellowship, Union of American Hebrew Congrega-
tions). Many nonreligious organizations are members as well, including (to name
but a few) the American Orthopsychiatric Association, the Martin Luther King
Center for Nonviolent Social Change, the National Bar Association, the National
Conference of Black Lawyers, the National Council on Crime and Delinquency,
the National Lawyers Guild, and the National Legal Aid and Defender Associa-
tion.14
Opposition to the death penalty by many of America's organized religious
groups precedes the founding of the NCADP by several years.15 But the broad
public approval of the death penalty today suggests that the leaders of these
churches are preaching to the unconverted among their own parishioners when they
criticize the death penalty. Worth special attention during the years ahead is the
question whether the opposition to the death penalty in the recent papal encyclical,
Evangelium Vitae (1995), will galvanize the Catholic hierarchy in America into
taking a more vigorous teaching and preaching role on this subject.16
The two pairs of essays in this part give a selective but not, I hope, an unrep-
resentative view of the range of arguments for and against the death penalty as
they appear in current public debate. The first two essays (chapters 30 and 31), by
H. Wayne House and John Howard Yoder, are excerpted from their book, The
Death Penalty Debate (1991). This volume is without rival in presenting in some
detail both sides of the argument on capital punishment as seen from diverging
Christian points of view. The House-Yoder debate in effect amounts to trying to
decide which is the key insight: Genesis 9:6 ("Whosoever sheddeth man's blood
by man shall his blood be shed") or John 8:7 ("He that is without sin among you,
let him first cast a stone at her"). House is a theologian on the faculty of Western
Baptist College in Salem, Oregon; he explains and defends the death penalty in a
manner that most thoughtful American fundamentalists should find congenial.17
Yoder, a Mennonite, is a theologian on the faculty of Notre Dame; he argues for
an interpretation of the biblical message that opposes the death penalty but without
diluting that message into a thinly disguised secular argument.
The second pair of essays is by Ernest van den Haag and me. He is a retired
professor of jurisprudence at Fordham Law School in New York, and is well known
for his conservative views on many issues. Over the past twenty years he has been
second to none in the public advocacy for the death penalty.18 In 1983 he coaut-
hored The Death Penalty: A Debate, with John P. Conrad, a whole volume devoted
to arguing all aspects of the capital punishment controversy.19 In the essay reprinted
here as chapter 32, van den Haag assembles a range of arguments—constitutional,
empirical, and moral—in support of retaining and expanding the death penalty.
The Death Penalty: For and Against 413
Over the past two decades van den Haag has publicly debated the death penalty
dozens of times, on radio, television, and before live audiences large and small.
Many years ago I took to print to disagree with him over the death penalty,20 and
it seemed a fitting way to close this volume by doing so once again.21
Notes
1. See Kaplan 1990.
2. See the capital punishment issue of NDAA, the Journal of the National District
Attorneys Association, for July-August 1965, and the testimony in the Senate hearings on
S. 1382 of E. J. Salcines, state attorney, on behalf of the NDAA, 18 May 1977.
3. New York Times, 7 Dec. 1972, p. 30.
4. See the testimony in the House hearings on H.R. 2837 and H.R. 343 of George C.
Smith, director, WLF, on 16 April 1986, and the testimony in the Senate hearings on S. 22
and related bills by Paul D. Kamenar, executive legal director, WLF, on 27 September 1989.
5. See the testimony in the Senate hearings on S. 114 by Lucas Ferris, executive di-
rector, National Sheriffs' Association, 10 April 1981.
6. See the testimony in the Senate hearings on S. 114 of Norman Darwick, executive
director, International Association of Chiefs of Police (IACP), 27 April 1981, and the tes-
timony of C. Roland Vaughn El on behalf of the IACP in the Senate hearings on S. 32 and
related bills, 19 September 1989.
7. See the testimony in the Senate hearings on S. 1 and related bills by Edward J.
Kiernan, president, International Conference of Police Associations, 13 June 1973.
8. See Gardner 1979a, 1979b.
9. An undated memorandum from the NAE office of Public Affairs reports that as of
1972, the organization "believes that the ultimate penalty of capital punishment should be
retained for premeditated murder."
10. I once wrote Rev. Jerry Falwell, founder of the Moral Majority (Lynchburg, Vir-
ginia), inquiring about the reasons he and his organization relied on for their support of the
death penalty. By way of answer I received my own letter back; scribbled in pencil at the
bottom was this reply: "See Genesis 9:6."
11. Letter to the author, 26 September 1995. In its Contract with the American Family
(1995), the Christian Coalition strongly supports punishment for crimes (pp. 121-30) but
makes no mention of the death penalty.
12. In 1972, prior to the Supreme Court's decision in Furman, Assistant Attorney Gen-
eral Henry Peterson testified before the House Judiciary Committee supporting the death
penalty (10 March 1972, p. 16); Richard Kleindienst endorsed the death penalty during his
Senate confirmation hearing (New York Times, 29 February 1972, p. 8); and California's
Governor Ronald Reagan demanded reinstatement of the death penalty following a decla-
ration by the state supreme court that it was unconstitutional (New York Times, 1 March
1972, p. 46).
13. See Mackey ed. 1976.
14. A complete list of the national, regional, and state organizations belonging to the
NCADP is available from the Coalition's Washington, D.C., office.
15. See the pamphlet Capital Punishment: What the Religious Community Says (1978),
reprinted in House Hearings 1978:32-69. For more recent position statements by American
churches, see the pamphlet The Death Penalty: The Religious Community Calls for Abolition
(1988), published by the NCADP.
16. The argument of the encyclical is inspired by the biblical story of Cain and Abel;
God spares Cain, murderer of his brother Abel, but stigmatizes and banishes him (Genesis
4:15). Using this story to guide formulation of a proper penology, the encyclical asserts that
there is no moral foundation for the death penalty "except in cases of absolute necessity."
Quoting from the new Catechism of the Catholic Church, the encyclical concludes: "If
bloodless means are sufficient to defend human lives against an aggressor and to protect
public order and the safety of persons, public authority must limit itself to such means,
because they better correspond to the concrete conditions of the common good and are more
in conformity to the dignity of the human person." See Pope John Paul II 1995:100.
For a recent pre-encyclical discussion of the Catholic position, see Drinan 1994. For the
fullest historical account of Christian thinking on the death penalty, see Megivern 1996. For
a collection of statements against the death penalty by U. S. Catholic bishops, see Catholics
Against Capital Punishment 1994.
17. For other conservative Christian defenses of the death penalty, see Vellenga 1959
(reprinted in Bedau ed. 1964) and Gow 1985. An interesting study guide for Christians
opposing the death penalty will be found in Gross 1991.
18. See also van den Haag 1969, 1978a, 1978b, 1983, 1985a, 1985b, 1985c, 1986, and
1990.
19. Recent books devoted to defending the death penalty include Berger 1982; Berns
1979; Otterbein 1986; and Sorell 1988. Among the recent books opposing the death penalty,
the following deserve mention: Dicks 1991; Endres 1985; Gorecki 1983; Gray and Stanley
eds. 1989; Haas and Inciardi 1988; Nathanson 1987; Paternoster 1991; Prejean 1993; von
Drehle 1995; White 1991; and Zimring and Hawkins 1986.
20. See Bedau 1970; this essay, like van den Haag's to which it was a reply, had the
oddity of being published in two scholarly journals a few months apart
21. Elsewhere I have given arguments against the death penalty that have a broader
scope; see especially Bedau 1992a, 1993. Other philosophers who have recently written on
the death penalty controversy include Hurka 1982; Leiser 1986; Murphy 1979; Narveson
1993; Perlmutter 1996; Pojman 1992; Primorac 1982; Reiman 1985, 1988, 1990; Satre
1991-92; Sorell 1987; Wasserstrom 1982; Waters 1982; Wellman 1988; and especially
Nathanson 1987.
30
The New Testament and Moral

Arguments for Capital Punishment
H. WAYNE HOUSE
The New Testament and Capital Punishment
The teachings of Jesus Christ and the apostle Paul provide the theological foun-
dation for New Testament Christianity. Those of us who call ourselves Christians
must evaluate our lives from this perspective. There is no question that God com-
manded capital punishment as part of the Noachian Covenant, nor should there be
any debate that the death penalty was part of the Mosaic Covenant. Things, how-
ever, were changed after the death, burial, and resurrection of Jesus Christ. If his
redemptive work on the Cross changed the application of other aspects of the Old
Testament, such as sacrifices, then perhaps he also set aside capital punishment as
a legitimate form of punishment. Many think that Jesus and Paul have done exactly
this. If true, then the debate is settled. We, however, are convinced that neither
Jesus nor Paul abrogated capital punishment. This chapter will examine the Gospels
and the Epistles to ascertain the position each held on the death penalty.
The Teachings of Jesus Christ

Clearly the cross-work of Jesus Christ brought about major changes in the rela-
tionship of man and God, and none so dramatic as the place of the Mosaic Law
in the life of the New Testament believer. Christ ended the sacrificial system (Heb.
10:1-18), unified believing Jew and Gentile into one body (Eph. 2:11-22), and
freed believers from the judicial authority of the Law (Rom. 7:1-6, Col. 2:16-23).
Not only this, but during his early ministry he challenged the very foundation of
Jewish traditionalism, ridiculing the Jewish authorities for their neglect of justice,
mercy, and faithfulness:
Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth of
your spices—mint, dill and cummin. But you have neglected the more important
Reprinted by permission of the author, from The Death Penalty Debate: H. Wayne House and John
Howard Yoder (Dallas: Word Publications, 1991), pp. 59-80.
415
matters of the law—justice, mercy and faithfulness. You should have practiced the
latter, without neglecting the former. You blind guides! You strain out a gnat but
swallow a camel. (Matt. 23:23-24 NIV)
In light of this, what changes did Jesus make in the rules of capital punishment?
Did he set aside the Mosaic Law or the Noachian Covenant with their emphasis
upon retributive punishment, including the death penalty for murder, and replace
them with another concept, one based on love and forgiveness? Or did he acknowl-
edge the legitimacy of capital punishment and permit its practice? Although Jesus
gave no direct statement on the subject, it is possible to gain an understanding of
his position by analyzing three key passages: the Sermon on the Mount, the story
of the woman taken in adultery, and his own response to his trials and execution.
Some, however, object to using specific passages to determine Jesus' mind on
a given topic. They would rather seek the general tenor of his thinking by looking
at the overall content of the Gospels. "It is not what the Bible says in a specific
verse, but what it says to us through its total message, interpreted in terms of our
own conditions, that is relevant."1
The concept sounds valid, but we wonder how to obtain the total message of
Christ without studying specific passages which describe what he said and did?
Moreover, how is one to guard against the natural tendency to identify the reader's
own mind with that of Jesus? Sometimes those who seek the mind of Jesus ignore
passages which seem to contradict their preconceived view of the subject. Certain
texts are likely to be ruled out of court, since they do not fit the image of a patient,
loving, forgiving Lord:
Physically beating those with whom he disagreed (John 2:13-15); berating those
religious leaders who disagreed with him by calling them children "of hell" (Matt.
23:15) who deserve to be sentenced to that place (Matt. 23:29-33); designated the
Jews (of which he was a part) carte blanche as children of "the devil" (John 8:44);
announced that any place which will not receive his disciples will fare worse than
Sodom and Gomorrah (Matt. 10:14—15); responding to a mother's plea for her sick
child by telling her that "it is not right to take the children's bread and throw it to
the dogs" (i.e., to foreigners, Mark 7:24-27); constantly berating his disciples (e.g.,
Mark 8:17-18), and even those in need of his help (Mark 9:19); etc.2
Our study of capital punishment in the mind of Christ will of necessity center
on specific passages in which we find him interacting with the death penalty in his
culture. These sections will be the basis for our conclusions.
When we open the New Testament we find a world radically changed from that
of the Old. Though the Jewish nation had religious freedom, Palestine was ruled
by the Roman Empire. Rome, a Gentile power, was the dominant political and
military authority. Judaism had become encrusted with a traditionalism so thick
that little of its original light shined forth. Into this context came the Messiah,
proclaiming his radical message of repentance and renewal to the Jewish people.
He did not come to prophetically hold Rome accountable to God through the
Mosaic Covenant. In fact, he commanded his disciples to avoid both the Samaritans
and the Gentiles in their preaching (Matt. 10:5). Consequently Jesus said little about
The New Testament and Moral Arguments for Capital Punishment 417
the political authority of Rome and its exercise of capital punishment. He acknowl-
edged Caesar's general authority, but did not elaborate on its specific exercise (cf.
Matthew 22:21). Consequently we must analyze his personal teachings to his peo-
ple for insights into his view of capital punishment. Here we also find that he said
nothing specific about the death penalty, but it is possible to draw some conclusions
about it from his other teachings.
The Sermon on the Mount

In the Sermon on the Mount (Matt. 5-7), Jesus attacked the traditionalism which
prevented an accurate understanding of the Mosaic Law and hindered its correct
application to the lives of his audience. In this context, he gave the teaching which
is most frequently quoted in the capital punishment debate:
You have heard that it was said, "Love your neighbor and hate your enemy." But I
tell you: Love your enemies and pray for those who persecute you, that you may be
sons of your Father in heaven.... Be perfect, therefore, as your heavenly Father is
perfect. (Matt. 5:43^4, 48 NIV).
The first phrase he cites, "love your neighbor," comes from Leviticus 19:18,
4
'Do not seek revenge or bear a grudge against one of your people, but love your
neighbor as yourself. I am the Lord." The second phrase does not come from the
Old Testament but reflects the traditionalism of his day and the general tendency
of sinful humanity. Jesus is not rejecting the Mosaic teaching, but showing his
listeners that the life lived in obedience to the Law goes beyond normal expecta-
tions. This is in perfect agreement with Leviticus 19:17, "Do not hate your brother
in your heart" (also cited in Matthew 5:22). Jesus' call, therefore, is for "mature
action in the day-to-day events of ordinary life: to be without prejudice and devoid
of self-interested motives."3
The entire passage as well as its context centers on personal responses to difficult
situations. Jesus' concern is the attitude more than the act: hate more than murder
(5:21-24), sexual desire more than adultery (5:27-30), love of enemies rather than
hate for them (5:43-48). None of this contradicts any part of the Mosaic Law.
Jesus refocuses the Law on the personal lives of his listeners rather than rejects or
replaces it with new teaching (5:17-20).
None of his teaching is directed to the governmental authorities of his day. In
fact, Jesus acknowledged the existence of courts and councils without rejecting
their validity (5:25-26). His commands only "limit the believer's response in these
situations to what love and Scriptures impose."4 There is nothing in the Sermon
on the Mount that challenges capital punishment as a part of existing governmental
practices, Jewish or Roman. If, as some claim, we had to be perfect to exercise
punishment (cf. 5:48), then all punishment for any sin would be eliminated and
anarchy would reign supreme. Matthew 5:43^8 does not eliminate the validity of
capital punishment.
Matthew 5:21-22, on the other hand, shows that Jesus recognized that murder
merits judgment. Certainly he knew that Exodus 20:13 prohibited murder, and that
Exodus 21:12 commanded the death penalty for the crime. Yet, Jesus said nothing
against such a judgment. In fact, he built upon its severity to warn against the
attitude of hatred in the strongest of terms. If the Sermon on the Mount shows us
anything about Jesus' attitude toward capital punishment, it shows us that he ac-
cepted it as a valid exercise of governmental authority and a proper part of the
Mosaic Code.
The Woman Taken in Adultery

Adultery was a capital offense according to the Mosaic Law, so when the Pharisees
brought a woman to Jesus who had been caught in that very act, he looked capital
punishment right in the face (John 8:1-11).5 Those who oppose the death penalty
argue that his refusal to condemn the woman shows that Jesus rejected capital
punishment in favor of a higher ideal.
With sovereign authority Jesus transcended the law and demonstrated the grace of
God in the forgiveness of sins. His practice like his teaching was based on his con-
ception of God. He had not come to carry out punishment according to legal requi-
rements or exact proper revenge, but to seek the lost, to redeem the ungodly and to
reconcile sinners to God.6
The argument sounds impressive, especially in light of the radical nature of

Jesus' ministry, but it is open to serious, indeed, fatal objections.
The real issue placed before Jesus was not a guilty woman but a baited trap (8:
6). Both Pharisees and Messiah knew that Leviticus 20:10 and Deuteronomy 22:
22-24 required that the woman guilty of adultery be executed, whether she was
married or not. Both Pharisees and Messiah knew that the Law required the testi-
mony of two or three witnesses before conviction. And both Pharisee and Messiah
knew that Roman law reserved the right of capital punishment for itself. If Jesus
had agreed to her execution, then he would have been guilty of rebellion against
Rome.7 If, however, he waffled on the death penalty, then he would be rebelling
against the Mosaic Code. His unexpected response disarmed the accusers and his
mercy freed the woman: "If any one of you is without sin, let him be the first to
throw a stone at her," and, "Neither do I condemn you . . . go now and leave your
life of sin" (8:11). Does Jesus also disarm the death penalty and free humanity
from its curse?
If Jesus is both rebuking the Pharisees and rejecting capital punishment, then it
is clear that he is dealing only with a specific situation: adultery. The passage
cannot be extended to include murder, since that crime is covered by the Mosaic
and the Noachian Covenants. It is also clear that Jesus is not demanding complete
sinlessness of every witness, jury member, and judge, for then the criminal justice
system would not be possible at all. This is inconsistent with the New Testament's
general affirmation of judicial sanctions as a demonstration of divine justice (cf.
Rom. 13:1-7). What, then, did Jesus do that so effectively silenced his opponents?
The Pharisees were half-right: Leviticus 20:10 and Deuteronomy 22:22-24 de-
manded the execution of a woman taken in adultery. But the Law also required
the execution of the man as well, and the woman's partner was notably absent.
Presumably the witnesses saw his sin as well as that of the woman since she was,
after all, taken in the very act (8:4). The witnesses, then, were equally guilty of
breaking the Law and, according to Deuteronomy 19:16-21, were also guilty of a
capital crime.
The sense ... is that the scribes and Pharisees were not without fault as witnesses in
such a judicial proceeding, because they themselves were guilty of violating the pro-
visions of Deuteronomy 22:22-24. Stricken in conscience, the hypocritical witnesses
left the scene, and Jesus dismissed the case when no one remained to press charges.
Far from abrogating the provisions of the Mosaic law, Jesus demonstrated that he
took their procedural guidelines for the protection of accused persons very seriously.
This understanding of Jesus' action in this periscope is consistent with his statement
in Matthew 5:17 that he did not come to abolish the law of Moses, but to fulfill it.8
Capital punishment never became an issue for Jesus. As for the woman, who
else could forgive sins except the Lawgiver himself (cf. Luke 5:20-25)? Conse-
quently, this passage does not prove that Jesus intended to abolish the death penalty
either in general or for the specific crime of adultery. Arguments against capital
punishment must appeal to texts other than this one.
Other Passages
When Pilate warned him that he had "the power either to free you or to crucify
you'' (John 19:10), Jesus acknowledged the reality of Pilate's authority, but pointed
him toward its true source: "You would have no power over me if it were not
given to you from above" (John 19:11). Jesus recognized that Pilate's authority as
the governing official came from God and that it was being manipulated by others
for an unjust end ("The one who handed me over to you is guilty of a greater
sin"). However, the validity of Pilate's authority to execute Jesus was never ques-
tioned by either.
Jesus also appealed to pre-Mosaic decrees to settle arguments, decrees that were
given to the whole of humanity, not just Israel. The basis for marriage is not the
Mosaic Law, but the decree of Genesis (cf. Matt. 19:3-9). Jesus did not specifically
speak of the Noachian Covenant, but neither did he reject it. The fact that he
recognized that pre-Mosaic decrees were still valid even under the Mosaic Law,
however, supports our previous contention that the Noachian Covenant was still
operative during the theocracy, and is still in effect today.
Summary
Throughout his life Jesus obeyed the Mosaic Code and, as Messiah to Israel, de-
manded obedience to its precepts. He refocused its demands upon the attitudes of
its adherents, not just their acts. When confronted by hypocritical, false witnesses
he exposed them for what they were and extended mercy to the guilty. We con-
elude, therefore, that Jesus accepted the Mosaic Code, complete with capital pun-
ishment, and did nothing, by word or deed, to abrogate the death penalty.
The Teachings of the Apostles

Most of the apostolic writings in the New Testament deal with ecclesiastical con-
cerns and touch on the world only when the church is directly involved. Conse-
quently, we do not find the apostles giving any direct statements concerning capital
punishment. As with Jesus, we must find their answer to our question by drawing
it out of what they said and did.
The New Testament records the detailed response of only one apostle when
confronted with execution—Paul. When Festus offered him a chance to go to
Jerusalem for trial, a trip on which he would probably have been ambushed, Paul
appealed to Caesar, claiming,
I have not done any wrong to the Jews, as you yourself know very well. If, however,
I am guilty of doing anything deserving death, I do not refuse to die. (Acts 25:10-
II NIV)
Two things stand out in this affirmation. First, Paul presumably considered some
crimes worthy of death. These are not specified, of course, but his recognition of
capital crime runs counter to those who try to employ his teachings to argue against
capital punishment. The second point is that Paul did not question Rome's authority
to execute him. He claimed the protection afforded him by Roman law, and he
also accepted its authority to execute him if a capital crime were involved. This
evidence, though circumstantial, argues that Paul accepted the validity of capital
punishment.
Only two passages from the Epistles speak to the issue of governmental au-
thority: 1 Peter 2:13-14 and Romans 13:1-7. The Petrine passage, the more general
of the two, simply admonishes believers to
submit yourselves for the Lord's sake to every authority instituted among men:
whether to the king, as the supreme authority, or to governors, who are sent by him
to punish those who do wrong and to commend those who do right. (NIV)
Peter says nothing about capital punishment, but if other passages show that
God has placed the death penalty within governmental authority, then the believer
has no option but to accept it. We must look to Paul to see whether capital pun-
ishment is still part of governmental authority.
The second passage, Romans 13:1-7, is the determinative one insofar as capital
punishment is concerned, and therefore will be examined in detail. Paul discussed
many theological points in Romans other than the role of human government.
Throughout this epistle and many of his others, Paul affirmed that the Mosaic Code
had ended as the judicial measuring stick for the believer's life. The Law had been
fulfilled on the Cross, and a new way was open for the believers to approach God.
Romans 7, Galatians 3-4, Ephesians 2, and Colossians 2 are major sections in
which Paul discusses the believers' new relationship to God and to each other as
the result of the sacrifice of Jesus Christ.
It would seem reasonable, then, to infer that the capital punishment provisions
of the Mosaic Code had also been set aside. No longer would someone be executed
for breaking the Sabbath, adultery, cursing parents, etc. The Law was over, and
with it went the commands that outlined capital crimes and the death penalty. Paul
knew this, but nowhere does he affirm that the death penalty is invalid. Nowhere
does he state that capital punishment has been abrogated in the New Testament
economy. It is also true that he nowhere directly affirms the validity of capital
punishment, either, although his response to Festus points in that direction.
With the end of the Mosaic Code before him, Paul commanded submission to
human government because that institution was established by God and carries out
essential functions on behalf of God in this world.
Ryrie identifies four principles affirmed by Paul in Romans 13:1-7:
(1) Human government is ordained by God (v. 1), yet it is a sphere of authority that
is distinct from others like that of the home or the church; (2) human government is
to be obeyed by the Christian because it is of God, because it opposes evil (v. 4),
and because our consciences tell us to obey (v. 5); (3) the government has the right
of taxation (vv. 6-7); and (4) the government has the right to use force (v. 4).9
The context of this passage is instructive in appreciating the importance of the

principles Ryrie has identified. In Romans 12:17-21, Paul commands believers not
to repay evil with evil, to give up personal revenge, to make room for God's wrath,
and to overcome evil with good. God, according to Paul, will take care of justice.
The personal responsibility of the Christian is to exercise patience, act in love, and
get out of God's way so that he can exercise his wrath in vengeance (cf. Lev. 19:
18). But how will God accomplish this if the individual believer does nothing to
obtain vengeance on his own? The answer, of course, is human government.
This is why Paul identifies governmental authorities as agents of "God's
wrath," for they are authorized by God to do what individual believers are pro-
hibited from doing: exercising God's wrath on sin through judicial actions. Romans
13:1-7 answers the "how" of Romans 12:17-21. God's judicial wrath is exercised
through human government. We are not implying that all governments are perfect,
that all governments properly punish evil and reward good, nor that all governments
should be obeyed. We are affirming that God has established human governments
as his agents to punish sin on this earth, regardless of whether they properly carry
out this mandate.
The establishment of human government obviously antedated the Mosaic Code
and when the Law ended at the Cross, human government continued with God's
blessing. As we have seen, the first reference to human government, that is, judicial
authority, is Genesis 9:6. Here God gives mankind judicial authority to exercise
his wrath for the sin of murder, and he establishes the death penalty as punishment
for that crime. The obvious question, then, is whether contemporary governments
still have God's authorization to exercise capital punishment.
Paul speaks of a governmental "sword" (machaira), and his statement has been
given widely differing interpretations. Some affirm that it is a clear reference to

the instrument of decapitation and thus affirmation of capital punishment.10 Others
look at it as a symbolic reference to the use of force, much like the policeman's
club and pistol today.11 The sword, however, appears to be a significant item in
the magistrate's arsenal. Therefore, the reference seems to go beyond the merely
symbolic to the actual use of the instrument. This does not prove, however, that
Paul is affirming the death penalty, but his terminology is far closer to an affir-
mation than a denial.
To exclude the right of the death penalty when the nature of the crime calls for
such is totally contrary to that which the sword signifies and executes. The usage
of the sword in the New Testament connotes death (Matt. 26:52; Luke 21:21; Acts
12:2, 16:27; Heb. 11:34, 37; Rev. 13:10).12 Therefore, we conclude that Romans
13:1-7 endorses capital punishment as a valid option for contemporary govern-
ments in their exercise of divine wrath against sin.
Conclusion
The biblical evidence for capital punishment may be summarized with these ob-
servations. In Genesis 9 God establishes a covenant with all humanity in which,
among other things, he gives mankind permission to exercise judicial authority
among themselves to exercise his wrath against the crime of murder. The estab-
lished penalty for this act is death. The Mosaic Covenant established, among other
things, the rules and regulations by which the descendants of Abraham would live
as those under the Abrahamic Covenant. Those rules mandated capital punishment
for a number of crimes, including murder. While the laws of the Mosaic Covenant,
including those of capital punishment, are no longer binding in the New Testament
economy, the provisions of the Noachian Covenant are still in force. This covenant
provides capital punishment for the crime of murder today. Nothing in the teachings
of Jesus or the apostles contradicts this sanctioning. Capital punishment is a proper
course of action for governments today in the exercise of their divine mandate to
punish evil.
The Moral Arguments for Capital Punishment
Despite the fact that the Bible clearly teaches the validity of capital punishment,
many today oppose it on moral grounds. They argue that the death penalty in any
form is immoral, in that it violates basic standards of both private and public
morality. No person or organization has any right to take the life of a human being,
regardless of his or her actions. Our modern sense of justice, some argue, has
advanced beyond the crude, revenge-oriented mentality of past centuries, and we
no longer need to continue the cycle of violence through executions. For example,
former United States Deputy Attorney General Ramsey Clark stated that
this nation is so great in its resources and too good in its purposes to engage in the
light of recent understanding in the deliberate taking of human life as either a pun-
ishment or a deterrent to domestic crime.13
United States Supreme Court Justice William Brennan claims that the death
penalty is inconsistent with human dignity because it treats "members of the human
race as nonhumans, as objects to be toyed with and discarded."14 These arguments
seem to eliminate the death penalty, especially in light of God's standards of mo-
rality. However, there are sound answers to them which will be explored in this
chapter. We will show that capital punishment as a retributive punishment is not
only moral, but is a moral imperative according to God's established order.
The Moral Case for Capital Punishment

A person's ethics depends upon one's philosophical presuppositions and, for the
Christian, one's view of biblical authority. There can be no true light on any subject
from the Christian viewpoint without considering the teachings of Scripture on the
subject. This is especially true when questions of morality are involved. Conse-
quently, we will construct this part of our defense of capital punishment from a
biblical perspective.
Capital Punishment Respects the Imago Dei
The Bible, as we have seen, teaches that mankind sustains a unique relationship to
God because he bears the imago Dei. The importance of this concept cannot be
overemphasized. Carl F. H. Henry has perceptibly described the significance of the
phrase, "the image of God":
The importance of a proper understanding of the imago Dei can hardly be overstated.
The answer given to the imago inquiry soon becomes determinative for the entire
gamut of doctrinal affirmation. The ramifications are not only theological, but affect
every phase of the problem of revelation and reason, including natural and interna-
tional law, and the cultural enterprise as a whole. Any improper view has conse-
quences the more drastic as its implications are applied to regenerate and to
unregenerate man, from primal origin to final destiny.15
The capital punishment debate is no exception to this observation. Criminal or
not, each individual bears God's image and must be treated accordingly, that is,
with dignity and worth. Any penalty that degrades humans by treating them as if
they had no worth is immoral. So we ask: Does capital punishment per se do this?
First of all, does capital punishment treat individuals as objects to be used for
society's benefit without regard to the interests or rights of the criminal? On the
contrary, those who would seek to "cure" and "heal" people without receiving
their consent treat them as less than human.16 On the other hand, to punish criminals
because they "deserve" it is to respect them as morally responsible persons created
in God's image who knew better and therefore have earned this punishment.
Second, while we acknowledge that some types of executions did (and do) treat
people as less than human, the concept of capital punishment is not in conflict with
mankind bearing the imago Dei. God himself ordained capital punishment in the
Old Testament.
Capital punishment was established by the image-Giver to protect the dignity
of the image-bearers. Willful elimination of the expression of God's image from
one individual by another (premeditated murder) merited the penalty of execution,
i.e., the elimination of the expression of God's image from the murderer. There
was no conflict between capital punishment and the imago Dei. Indeed, the former
depends upon the latter.
Bailey discusses the divine rationale behind this principle:
Life originated by a special act of the Deity (by the power of the divine breath, as
the ancient story in Gen. 2:7 put it). Consequently, humans were not free to terminate
it, save under conditions specified by God. Even food animals must be brought to the
sanctuary and slaughtered in a prescribed ritual whereby the blood is removed. Failure
to do so results in ' 'bloodguilt'' (Lev. 17:4), a term which is elsewhere used for the
murder of a human being (Exod. 22:2). How much more the offense, therefore, if
human life ("created in the image of God," Gen. 1:26) is taken without proper
sanction! One has acted arrogantly against a life-force that is an extension of God's
own life-giving power. It is, to put it boldly, "an attack upon God." Even an animal
that kills a human is to be destroyed (Exod. 21:28). A human who does so all the
more forfeits any right to life (Gen. 9:l-7).17
The death penalty, at least for premeditated murder, does not operate in oppo-
sition to human dignity. Rather, it was established in respect of human dignity
derived from the imago Dei within each human being. Capital punishment, then,
is the ultimate compliment to the human dignity of both victim and murderer; it
implies the most pro-human stance possible. There are, of course, forms of capital
punishment which violate human dignity and worth, but the concept is entirely
compatible with God's standards of human worth. On the other hand, a penalty of
ten years in prison for premeditated murder devalues human life by saying that the
victim's life was worth only ten years of penalty. Equity and justice demand a
punishment that matches the crime. Capital punishment for premeditated murder
provides equity and justice as well as values human life.
Capital Punishment and the Sixth Commandment

When Moses descended from Mount Sinai, he gave Israel ten summary command-
ments which were to guide their personal lives as God's covenant people. The
Sixth Commandment seems to rule out any form of capital punishment: "Thou
shalt not kill" (Exod. 20:13).18 Since capital punishment involves killing, it seems
to be a "prima facie violation of this fundamental moral principle." Yet, one
chapter later God ordered the death penalty for intentional murder.
Has God become a transgressor of his law, or is there another concept at work?
Obviously, the latter is the case, and we find that God has established two arenas
of moral activity: private and public morality. What seems inconsistent at first
glance becomes comprehensible when these two aspects of God's established order
are taken into account. What is immoral in one arena—for example, killing a
person—may be completely moral in another, e.g., the death penalty. This answers
the problem raised by God's orders to Israel to engage in total warfare against the
Canaanite tribes. Israel's armies were God's tools of judgment against the sinful
rebellion of these people. It also answers the problem raised by the eschatological
judgments in which the returning Christ will destroy his enemies in a fierce, de-
structive battle. Individuals acting as proper agents of governments can do things
that are prohibited to them as private citizens. Scripture affirms both public and
private moralities as distinct realms of activity.
We find that both Old and New Testaments recognize the existence of human
governments. Romans 13:1-7 is the most general statement regarding government
in the New Testament.
My neighbor would think it strange if I demanded that he pay me money so
that I would personally police our neighborhood. But few people think it strange
to pay taxes to governmental bodies to provide police service. Were my neighbor
to refuse my demands and I were to lock him in my cellar for a year or two, I
would be adjudged a public menace. Government, however, may imprison tax
dodgers and in some cases risk public clamor if it refuses to do so. Clearly, gov-
ernments can do things that individuals cannot, and this has been ordained by God.
When a person argues against capital punishment based on the Sixth Com-
mandment he or she is ignoring the division between individual and governmental
morality, between murder and prescribed killing. No person is permitted to murder
or kill another. But God has established governmental authority and given it the
responsibility for punishing crime—applying, if necessary, the death penalty. Per-
sonal vengeance, however, is not permitted:
Do not take revenge, my friends, but leave room for God's wrath, for it is written:
"It is mine to avenge; I will repay," says the Lord. (Rom. 12:19, citing Deuteronomy
32:35 NIV)
Vengeance is God's, and government is one method whereby he exercises this

vengeance. Punishment is the responsibility of government, not individuals. Capital
punishment is not a violation of God's moral code. Perhaps no biblical reference
illustrates the difference between personal and public morality in the realm of
capital punishment better than Deuteronomy 21:18-21:
If a man has a stubborn and rebellious son who does not obey his father and mother
and will not listen to them when they discipline him, his father and mother shall take
hold of him and bring him to the elders at the gate of his town. They shall say to
the elders, "This son of ours is stubborn and rebellious. He will not obey us. He is
a profligate and a drunkard." Then all the men of his town shall stone him to death.
You must purge the evil from among you. All Israel will hear of it and be afraid.
If the parents had executed their son before they brought him to the government
officials (the elders at the gate), they would have been guilty of murder and been
punished by those same elders. However, when they present their rebellious son
to the elders for official condemnation, the situation changes. Their word becomes
the basis of the capital charge and the father becomes one of the executioners (the
men of his town). He now acts as an agent of the government and may carry out
an act which was forbidden to him as a private citizen. Acts of personal vengeance
are condemned as murder, but acts of capital punishment, being sanctioned by the
government, are proper. We do not argue that juvenile delinquents should be ex-
ecuted, but we use this reference to establish once and for all that a distinction
exists between private and public morality.
Capital Punishment and Inequitable Application

We acknowledge that major inequities exist in the application of capital punishment
today. Many have pointed to these as justification for the abolition of the death
penalty lest it be applied unfairly. All these arguments, however, raise the same
issue: problems in the application of capital punishment, not the concept of capital
punishment. Our discussion concerns the defense of the death penalty as a valid
punishment that may be dispensed by government, not necessarily the defense of
our current system in its application at every point. However, we will consider
these arguments in some detail, for at first glance they do seem persuasive.
Many have recognized the disproportionate number of disadvantaged criminals
on death rows. One of these critics, Byron Eshelman, writing in Death Row Chap-
lain, claims that
as it is now applied, the death penalty is nothing but an arbitrary discrimination

against an occasional victim. It cannot even be said that it is reserved as a weapon
of retributive justice for the most atrocious criminals. For it is not necessarily the
most guilty who suffer it. Almost any criminal with wealth or influence can escape
it, but the poor and friendless convict, without means to fight his case from court to
court or to exert pressure upon the pardoning executive, is the one singled out as a
sacrifice to what is little more than a tradition.19
Race is also said to be a factor in discriminatory application of the death penalty.

For example, a study by an Iowa law professor found that in Georgia, blacks were
4.3 times as likely to receive the death penalty for killing whites than whites were
for killing blacks.20 Assuming the accuracy of these statistics, capital punishment
may be applied unfairly. But this does not justify eliminating the death penalty as
a morally proper punishment.
The same line of reasoning, we argue, could be employed to eliminate all other
legal penalties. Politicians "fix" parking tickets, influential doctors avoid convic-
tion on malpractice suits, and the rich employ skillful lawyers who get convictions
overturned on technicalities. Shall we then do away with all forms of punishment
because of inequities, or shall we seek to reform our judicial systems to eliminate
such practices? The answer is obvious. We must distinguish between the moral
question and the problem of discrimination. Ernest van den Haag speaks to the
issue when he writes:
Discrimination is irrelevant to this moral question. If the death penalty were distrib-
uted equally and uncapriciously and with super-human perfection to all the guilty,
but were morally unjust, it would be unjust in each case. Contrariwise, if the death
penalty is morally just, however discriminatorily applied to only some of the guilty,
it remains just in each case in which it is applied.21
Capital Punishment and the Execution of the Innocent

A practical problem more serious than discrimination is the execution of innocent
people. This is not a new problem. Indeed, it was anticipated in the Old Testament
theocracy in which God established a detailed procedure for carrying out the death
penalty:
1. The standard of proof required for conviction amounted to certainty,

2. conviction required the testimony of at least two witnesses,
3. the penalty for perjury in a capital case was execution; thus the witnesses
were motivated to speak the truth,
4. in difficult cases the verdict was deferred to experts, reducing the problem
of local prejudice, and
5. once the verdict was returned, it was unchangeable, thus motivating the
courts to be accurate.
Our present criminal justice system would do well to model itself after these
standards, for its deficiencies are obvious to all who take the time to look. However,
failure to properly apply capital punishment does not make it immoral. Again, we
note that the same argument could be made against most other forms of punish-
ment. The courts can release an individual who has been imprisoned for a crime
he or she did not commit, but it cannot return the lost time. Money can be returned,
but lost time, reputations, careers, etc., cannot be restored. This should motivate
us to ensure that only the guilty are punished, not to eliminate penalties for all
crimes.
Summary
It is our conclusion that capital punishment is not contradictory to God's moral
standards as revealed in either the Old or New Testaments. Humans bear the image
of the eternal God and are to be accorded all the dignity and respect that the imago
Dei requires. Applying the death penalty as retributive punishment, especially for
premeditated murder, respects the dignity of both victim and murderer. The crim-
inal has deliberately eliminated a personal expression of God's image and therefore
is required to pay a suitable penalty: the elimination of the embodiment of God's
image in and through him. Neither does the death penalty violate God's moral
standard as expressed in the Decalogue. Personal vengeance is prohibited and cap-
ital punishment is given to governments to apply after proper investigations. In-
equities in the application of the death penalty exist, but they are reasons for
revamping our criminal justice system, not eliminating capital punishment. If the
death penalty is eliminated because of such inequities, then all punishments should
have to be eliminated because few, if any, are fairly applied. We find nothing in
the commonly advanced moral arguments that requires the elimination of the death
penalty as a proper, morally acceptable retribution for capital crimes.
Notes
1. Charles S. Milligan, "A Protestant's View of the Death Penalty," in The Death
Penalty in America, 175-82, A. Bedau, ed. New York: Anchor, 1964).
2. Lloyd R. Bailey, Capital Punishment: What the Bible Says (Nashville: Abingdon
Press, 1987), 82.
3. Bailey, 74.
4. D. A. Carson, "Matthew," in The Expositor's Bible Commentary, vol. 8, ed. Frank
Gaebelein (Grand Rapids, Mich.: Zondervan Publishing House, 1984), 156-57.
5. Many leading textual critics reject this pericope as being a part of the New Testament
canon, as the marginal note in the New International Version demonstrates. For purposes of
this discussion, we will treat the passage as part of the New Testament.
6. J. Arthur Hoyles, Punishment in the Bible (London: Epworth Press, 1986), 56.
7. On occasion Roman authorities looked the other way when the Jews independently
executed people, as in the case of Stephen.
8. John Jefferson Davis, Evangelical Ethics: Issues Facing the Church Today (Philips-
burg, N.J.: Presbyterian and Reformed Publishing Co., 1985), 200.
9. Charles C. Ryrie, "The Doctrine of Capital Punishment," Bibliotheca Sacra (July
1972): 216.
10. William G. T. Shedd, A Critical and Doctrinal Commentary upon the Epistle of St.
Paul to the Romans (New York: Charles Scribner's Sons, 1879), 328.
11. C. E. B. Cranfield, The Epistle of Romans, in the International Critical Commentary
Series, vol. 2 (Edinburgh: T & T Clark, 1979), 667.
12. John Murray, The Epistle to the Romans (Grand Rapids, Mich.: Wm. B. Eerdmans
Publishing Co., 1968), 152-53.
13. Ramsey Clark, cited by Gerald H. Gottlieb, "Capital Punishment," Crime and De-
linquency 15 (January 1970): 2-11.
14. Furman v. Georgia, 408 U.W. 238 (1972), cited by Walter Berns, For Capital Pun-
ishment (New York: Basic Books, 1979), p. 27.
15. Carl F. H. Henry, "Image of God," Evangelical Dictionary of Theology (Grand
Rapids, Mich.: Baker Book House, 1984), 546.
16. C. S. Lewis, God in the Dock: Essays on Theology and Ethics (Grand Rapids, Mich.:
Eerdmans, 1970) 292.
17. Lloyd R. Bailey, Capital Punishment: What the Bible Says, 34-35.
18. The verb translated "kill" in the KJV occurs almost fifty times in the Old Testament
as in every relevant use means "to murder," especially with premeditation involved. The
LXX translates it with the Greek word for "murder." Consequently the NTV's translation
is the more accurate: "You shall not murder."
19. Byron E. Eshelman, Death Row Chaplain (Englewood Cliffs, N.J.: Prentice Hall,
1962), 223.
20. Anthony Parker, "Death Penalty Opponents Weigh Change in Strategy," Sojourners
(June 1988): 12.
21. Ernest van den Haag, "In Defense of the Death Penalty: A Practical and Moral
Analysis," The Death Penalty: A Debate (New York: Plenum Press, 1983).
31
Noah's Covenant, the New Testament,

and Christian Social Order
JOHN HOWARD YODER
Noah's Covenant and the Purpose of Punishment
The case for the death penalty as an institution in modern societies has several
quite different roots. Different advocates appeal to quite different reasons in its
favor. We have already noted in our beginning pages the need to look at them one
by one, each in its own terms. The first reason, as most people read it, is the notion
of prevention by threat, or "deterrence," which we have already looked at and
seen to be deceptive.
The first religiously based argument, on the other hand, for most Christians,
comes from the story of Noah. As we range around the argument, seeking the most
solid ground, this is one obviously right place to begin. It appears literally to be a
direct divine command:
Whosoever sheds the blood of Man
In Man shall his blood be shed
For in the image of God
He made Man.1 (Gen. 9:6)
Does This Text Prove What It Has Been Assumed To?

The first task of the biblical interpreter, as I already said, is not to read a text as
if "from scratch," or as if its meanings were self-evident to every well-intentioned
reader, but rather to protect the text from misuse, even to "liberate" its original
meaning from the deposit of interpretations which have already been laid over it
by centuries of readers. To say this is not to suggest that earlier readers were
dishonest or insincere. It is merely to take seriously the fact that they were prisoners
of their cultures, as we are of ours, even as the text we are seeking to read was
the product of its own culture.
Reprinted by permission of the author, from The Death Penalty Debate: H. Wayne House and John
Howard Yoder (Dallas: Word Publications, 1991), pp. 119-32, 139-48.
429
We need to make a self-conscious effort to understand the focus of the world-

view implicit hi the culture from which any ancient text comes to us. Some tend
to read a text like this as if it were legislation, providing, prehistorically, at no
particular time but with validity for all times, that there should be a particular
institution, equivalent to what we call the state, the basis for civil law, to protect
threatened social values.
God's covenant with Noah was not that. We need to step back from such mod-
ernizing assumptions if we are to have any hope of understanding how the sanctity
of life was really understood in the ancient Israelite setting where these words were
first recited.
*'Recited" is the right description of how this ancient text was originally used.
This rhythmic quatrain (further rhythmic in that in Hebrew the words ' 'blood'' and
"man" rhyme) is not part of a code of laws, though such codes did exist at that
time in the ancient Near East. It was formulated as oral lore, recited by sages and
priests, repeated by the old, and remembered by the young. It is part of the deep
symmetry of things, fitting in with the seasonal, rhythmic reliability of nature:
As long as earth lasts
sowing and reaping
cold and heat,
summer and winter
day and night
shall cease no more. (Gen. 8:22 JB)
This is not legislation for a government to apply. It is wisdom, a prediction, a

description, of how things are in fact, in primitive and ancient societies. The nature
of things did not come to be this way only because God said these words, as if
without the words, or before God spoke them, matters would have been different.
That is true of some kinds of human laws, nonexistent before, which come into
being only when voted by a legislature or promulgated by a king or other authority.
We also err when we tend to read this text as if the defense of life through the
threat to life were a new arrangement, established only after the Flood. It hardly
can be taken that way, as the text of Genesis now stands.2 Things were already
that way before the covenant with Noah; in fact, that was the way it was as soon
as the first murder was reported. That arrangement is already presupposed in the
account of Cain, in Genesis 4. There the first murderer, called to account for the
life of the brother he had killed, said:
My punishment is greater than I can bear;
behold: you drive me from this ground.3
I must hide from you and be a fugitive and wanderer over the earth.
Whoever comes across me will kill me. (Gen. 4:13f. JB)
What Cain feared was, as it were, a defensive reflex of society as a whole, of

"everyone who sees me." There is no account of there having been a previous
divine command demanding blood for blood. The response of Yahweh to the jeop-
ardy under which Cain saw himself was to intervene, to protect his life by a
Noah's Covenant, the New Testament, and Christian Social Order 431
"mark"4 and to announce the threat of retaliation. Thus, the first intervention of
God in Genesis, counter to the ordinary reading, is not to demand that murder be
sanctioned by sacrificial killing, but to protect the life of the first murderer. Far
from demanding the death penalty for murder, Yahweh saved Cain from it. That
is the first and the most characteristic action of the God of the Bible with regard
to our subject.5
Yet, the pattern of violence continued and escalated out of all proportion. Cain's
descendant, Lamech, boasted:
I have slain a man for wounding me,
a young man for striking me.
If Cain is avenged sevenfold,6
truly Lamech seventy-seven-fold! (Gen. 4:23f.)
This is the normal pattern; fallen humanity responds to evil with escalating
vengeance. Primitive peoples show the same pattern as Lamech, from the intertribal
wars of Borneo through the bloody gang justice of the Sicilian hills and the Amer-
ican underworld, to the proverbial "feudin' hillbillies" of the Appalachians. Each
particular act of vengeance is thought of as "setting things right" or as "defending
the peace," but in fact the spiral escalation of vengeance and countervengeance
raises the toll of suffering brought about by any one offense, far beyond any pro-
portion to the original damage done.
Having opened our minds to the awareness that the reason for primitive revenge
was not the same as our modern arguments, we can and should move on to note
what is different about the agents of the action.
The ancient quatrain does not say who the "man" is who shall shed the killer's
blood. Certainly, it was not a constitutional government by means of a trial by
judge or jury. Historians tell us that it was the next of kin, called "the avenger"
(goel, the same Hebrew word as "redeemer") who executed family-based ven-
geance. The mechanism of retaliation, once unleashed, had to run its course. Later
laws spell this out. If a corpse was found with no way to know whom to punish,
very special ceremonies were needed on the part of the elders of the nearest town
to "cover" them against the blood-vengeance which was due (Deut. 21:1-8). A
person who killed accidentally could be protected only by taking refuge in one of
six designated "cities of refuge" and staying there for the entire life of the high
priest (Num. 35:11-28; cf. Deut. 4:42f., 19:1-10). No ransom was possible for
blood guilt, even when the death was accidental (Num. 35:32f.). Nor was bloodshed
the only occasion for such sanctions. Death was the penalty as well for dozens of
other offenses.
There are others who read the Noah story as if it belonged in Exodus or Levit-
icus, as part of a body of rules set out to govern the particular nation of Israel, to
be established much later in the land of Canaan, in the light of the sovereignty of
Yahweh, in whose name Moses was to make of his mixed multitude (Exod. 12:
38) a nation. It was not that. When that civil legislation did arise later, it too was
to have provision for the death penalty, as we shall see, but not for the same
reasons, and for many other kinds of offenses.
The context of Genesis 9 is that of ritual sacrifice. The anthropologist will call
it "cultic" or "sacred.'' These four rhyming lines about human killing do not
stand alone. In the same breath, the text had just been describing animal sacrifice.
As contrasted with the vegetarian arrangement implied before the Deluge, animal
flesh may now be eaten, but only subject to a ceremonial sense of the holiness of
animate life as such, which is represented by the blood:
Every living and crawling thing shall provide food for you no less than the foliage
of plants
I give you everything, with the exception that you must not eat flesh with the
life—that is, the blood—in it
I will demand an account of your life blood
I will demand an account from every beast and from man
I will demand an account of every man's life from his fellow man
he who sheds man's blood.... (Gen. 9:3-6 JB)
The setting of our text is thus the account, after the Rood, of God's authorizing
the killing of animals for human consumption. In the context, it is evident that the
subject of the passage is sacrifice. The sacredness of human life is described in the
same breath with God's exclusive claim on the blood of the sacrificially slaughtered
beasts, and as an extension of the same. To kill animals for food is not like picking
fruit from a tree, pulling turnips from a garden, or cutting wheat in a field. It is an
interference with the dynamics of animate life, represented by the flow of blood
through the body, which humans share with the animal world. Every killing is a
sacrifice, for the life of the animal, represented by its blood, belongs to God. To
kill an animal is a ritual act; the blood belongs not to the killer but to God. There
is no "secular" slaughtering of animals in ancient Israel. The blood of the animal
is given to God by being sprinkled on the altar or poured out on the ground. The
act of eating that meat is an act of communion with God. The provision for shed-
ding the blood of a human killer is part of the same sacrificial worldview.
The closest approximation in the later Mosaic laws to the sense of the sacred
which sanctions killing in Genesis 9 is the prohibition of serving another god (Deut.
13:1-16). This text emphasizes the responsibility of any individual to be the agent
of retaliation, even against one's closest kin. A whole town could need to be
slaughtered and even the property destroyed.
Other ancient societies, primitive or highly developed, used human sacrifice for
many other purposes. The God who renews with Noah his life-saving covenant
with humanity permits human sacrifice—for that is what is prescribed here—only
on one specific grounds, namely, to correct for a previous wrongful taking of
human life.
Thus, it is not at all the case that in addressing Noah God intervenes to make
blood vengeance a duty, when it had not been so before. The pattern was already
old. It is then a mistake to read the word to Noah as if it were a command, ordering
its hearers to do something which they would otherwise not have done. It is not
that: it is a simple description of the way things already are, an accurate prediction
of what does happen, what will happen, as surely as summer is followed by winter,
seedtime by harvest. That killers are killed is the way fallen society works; it is
not a new measure which God introduced after the Deluge to solve a problem that
had not been there before, or for which God had not yet found a solution. It rather
restates, as a fact and as a prediction, in the framework of the authorization now
being granted to sacrifice and eat animals, that the sacredness of human life, already
stated when God had saved the life of the murderer Cain, still stands. Spoken just
at the place in the story where the killing of animals is for the first time authorized,
the point of God's word in Genesis 9 is to reiterate the prohibition of the killing
of humans.7
Motives and Meanings for Primitive Revenge

The careful cultural historian will have to ask at this point which of several de-
scriptions or explanations best fits the primitive fact of blood revenge. We cannot
yet review fully the several answers to this question as they are operative in modern
debate, but we must at least recognize the wrongness of leaping past it to too
simple an answer. What were the possible meanings for Cain's contemporaries or
Noah's descendants of shedding a killer's blood?
1. It might be more precisely described as eradication, getting rid of the source
of trouble. The Old Testament speaks of "purging" evil from the Israelite people.8
This would be the social equivalent of what white blood cells do to microbes or
what exterminators do to vermin. The organism defends itself against a threat by
removing whatever threatens. The threatening organism has no rights of its own.
It is removed because it is bad, not because of a particular bad behavior.
2. It might be described as imitation, mimesis. I do to you what you did to my
friend, not out of some general theory of social hygiene but rather, primitively,
reflexively, because it does not occur to me do anything else. You "have it com-
ing."
3. It might be understood as intimidation. If as a general pattern it is known
that those who harm others are harmed in return, this may keep them from doing
it. This interpretation has several levels of meaning. One is the more narrow, men-
tal, and therefore more modern sense. The thought is that an individual, premedi-
tating an evil deed, will "think twice" about the cost, and will therefore renounce
the evil deed on cost/benefit grounds. "Deterrence" is another modern term for
this. Intimidation also has a less mental, more primitive, more "educational" sense.
The generalized practice of avenging certain offenses, it is held, tends to be one
way a society has of trying to teach people what deeds are offensive, not to be
considered, therefore hoping to make it less likely that they will occur.
4. Both of the above concepts, "imitation" and "intimidation," c^n be under-
stood to be founded in "retaliation." The root—tal—means "such" or "like."
One may believe that God or the gods or "the moral order" should be understood
in terms of a kind of balancing exercise, whereby each harmful act needs to be
"paid back" or "set right" by another harmful act of the same kind and dimen-
sions. When the "moral order" is thought of in analogy to a courtroom, we may
also speak of the talion as "vindication," but in the old Semitic setting the court-
room is not the best symbol for that.
5. None of the above is quite what we mean when we use the word revenge.
Usually the term revenge connotes an element of passion.9 To do something ' 'with
a vengeance" suggests disregard for proportion, or for limits or barriers. It reaches
beyond "eye for eye." A vengeful society, or the individual avenger, demands
retaliation, claims moral legitimacy for the vindictive act, and may draw emotional
satisfaction from carrying it out. Some would avow "anger" as a valid description
of the motivation that is at work in so punishing the offender, and some would
disavow it. Others would say that there is no anger in justice.
6. None of the above is quite what we mean by "expiation." This term points
past the harm done to the social order, to the offense against the will of God or
the gods. The divine anger must be placated, or the cosmic moral order must be
set back in balance, the offender must "pay." In some religious and cultural set-
tings the divine wrath is understood very anthropomorphically: God gets "mad."
In others, the claim is that the "balance" needing to be restored by punishment is
quite dispassionate, objective like a court's judgment, and holy.
Certainly, these several possible characterizations of why killers are killed are
not all the same. The differences are significant. We shall come back later to try
to disentangle them more abstractly, as part of our review of the modern debate.
But now we want merely to understand the Noah story. Which of them most
adequately describes the facts? Which of them is morally most or least acceptable?
On the above scale, most of those who today hold the death penalty to be
morally justified would hold to a somewhat sanitized, modernized version of "leg-
islation" combined with "intimidation." This is what we previously referred to
under the broader heading of "deterrence." It has the least basis in the ancient
text.
On the other hand, most historians studying where the legal killing of humans
actually came from in ancient society, including ancient Israel, would point to one
of the more angry versions of "vengeance" combined with "imitation." Journal-
ists watching in our own times the public outcry after some particularly brutal
killing would agree with the historians.
Our debate to this day is skewed by the difference between these two interpre-
tations. Is killing a killer a vengeful action against the evildoer himself? Or is it
the restoration of divine moral balance through sacrifice?
For now, this first overview of the spectrum of reasons is intended only to
provoke the reader's vigilance. We need to be warned against the assumption that
we know easily just which of those meanings the Genesis text originally had for
its first hearers and against the assumption that the ancient meaning has any direct
connection with the reasons for the modern death penalty.
The provision of Genesis 9:3-6 is thus not a moral demand, saying that for
every pain inflicted there must be another pain inflicted to balance the scales of
justice. It is not an educational demand, teaching the offender (or destroying the
offender in order to teach others) a lesson to the effect that crime does not pay. It
is not a political order describing how to administer a healthy city.
The order underlying the words in question is ritual; human life, human blood
is sacred—whoever sheds it forfeits his own. The demand for that "forfeiting" is
not vengeance on the part of the victim's family, although it easily degenerates
into that; it is the organic society living in immediate awareness of the divine
quality of human life. The death which sanctions death is ceremonial, celebrative,
ritual.
The killing of a killer is not a civil, nonreligious matter. It is a sacrificial act.
The blood—i.e., the life—of every man and beast belongs to God. To respect this
divine ownership means, in the case of animals, that the blood of a sacrificed victim
is not to be consumed. For humans, it means that there shall be no killing. If there
is killing, the offense is a cosmic, ritual, religious evil, demanding ceremonial
compensation. It is not a moral matter; in morality a second wrong does not make
a right. It is not a civil, legislative matter: it is originally stated in a setting where
there is no government.
Ritual Worldview and Cultic Change

One way that the ritual worldview differs from our own is that there is no concern
for personal accountability. The death penalty applied to an ox which gored a man.
It applied to unintended or accidental killing. If the ritual worldview of Genesis 9:
3-6 were to be applied to our culture literally, there would be no provision for
exculpating minors or the mentally ill, no separating of degrees of homicide ac-
cording to intention. We would execute the contractor whose bridge collapses, the
engineer whose train is wrecked, the auto driver whose brakes malfunction, if death
results. For every death, blood must flow.
Christians in recent centuries, in order to attempt to understand and describe
how the laws of the Old Testament ought to be respected since Christ, have pro-
posed to divide them into civil, ceremonial, and moral laws. They then explain that
the "moral" laws continue to apply in all times, but that the ceremonial ones are
abrogated when the sacrificial order is fulfilled in Christ as the final sacrifice and
the final high priest. Some of the civil laws, it is held, should apply to modern
states, and others were intended only for the government of ancient Israel. This
threefold (really fourfold) distinction may help to organize our thought, but careful
study of the death penalty provisions of the books of Moses makes it clear that the
distinction is alien to that world.
The covenant given to Noah involved no such distinction either, but the elements
we call "moral" and "civil" were not stated, not separated. We saw that Genesis
9 speaks of the blood of animals and of fellow humans as belonging to God—
certainly a sacrificial concept. The covenant given through Moses was no less
holistic. Just as the Christ who was to come would be prophet, priest, and king all
at once, so the covenant established through Moses was moral, ceremonial, and
civil all at once, not one of them in distinction from the others. For centuries after
Moses there was in Israel no king, nothing specific to call "civil."
The distinction between different types of law has served, although in an indi-
rect, illogical way, to make room for a valid point. The valid point, which these
distinctions alluded to, is that there was going to have to be change over time in
how the laws would apply, and that in those changes the sacrifice of Christ was to
make the biggest difference.
It is the clear testimony of the New Testament, especially of the Epistle to the
Hebrews, that the ceremonial requirements of the Old Covenant find their end—
both in the sense of fulfillment and in the sense of termination—in the high-priestly
sacrifice of Christ. "Once for all" is the good news. Not only is the sacrifice of
bulls and goats, turtledoves and wheatcakes at an end; the fact that Christ died for
our sins, once for all, the righteous one for the godless (Heb. 9:26-28; 1 Pet. 3:
18), puts an end to the entire expiatory system, whether it be enforced by priests
in Jerusalem or by executioners anywhere else.10
Thus, by asking where killing began, and finding in the stories of both Cain and
Noah what is said and what is not said there, we have been led to the most precise
statement of the specifically Christian reason for the death penalty's being set aside.
There are other reasons as well, more widely effective in our world, in which
Anglo-Saxon democracy has spelled out the implications of the Hebrew and Chris-
tian heritage, but this is the reason closest to the heart of the gospel.
That shedding blood exposes the killer to killing is expiation in the name of the
cosmic order. The death of Christ is the end of expiation.
The Ritual Nature of Social Behavior

To kill a killer is a ritual act, we have begun to see, not primordially or only in a
political sense. When people gather for the funeral of a public figure, when they
build a wall around their house or buy an assault gun, when they fly a flag or take
off their hats, the event is not adequately interpreted by asking about a specified
moral imperative, or about a pragmatic social goal. We have just attempted briefly
to explain something of this sense of the sacred as it shows in the Noah story; now
let us note that it is still the case today.
When society takes a life, the action is, obviously, not being undertaken for the
well-being of that person. Counter to the general moral rule, most simply stated in
modern times by Immanuel Kant, that a person is always to be treated as an end
and not as a mere means, when a person is killed, that cannot be an action in that
person's interest. It is a public ritual, celebrated in the interest of others, in the
interest of the society's controlling elite and those who support them, and their
vision of the society's well-being.
When a parent or a teacher spanks a child, when an offender is put in prison
or fined, it can be claimed that it is done in order to "teach" that guilty person
something. Even then, the careful psychologist or social scientist will warn us that
the real "learning" resulting from that event is probably something else. A child
trained by spanking may grow up to become a teenage gangster or an abusive
parent. What beating a child teaches most effectively may well be less "don't get
into the cookie jar" than "might makes right," or "if you cannot reason, use
force." The same may be true of other punishments as well. The petty pilferer sent
to prison may learn there the skills of the professional burglar.
So the claim to "teach him a lesson" is often factually wrong. Nevertheless, it

may be sincerely so intended. The sincere intention may be that the offender him-
self should learn that "crime does not pay," so that he does not repeat the offense.
The time behind bars may lead him to think differently.
Rationales for Rehabilitation

This notion of changing the offender, ordinarily called "rehabilitation," can be
given as a serious reason for depriving the offender of his liberty. He is shown
how wrong his actions were. He may become convinced that he is under society's
control. He may be led to promise (sincerely or not) that he will not repeat the
offense. He may be given time to show by his actions that his promise to behave
is credible, and he may even be taught a trade or helped to finish school. This is
why prisons were once called "penitentiaries," places to repent. Some persons,
after a prison term, do not return to crime. As long as the prospect of a future life
in freedom is real, there is some chance that this may succeed. Yet even in these
cases it is not clear that the time in prison or other kind of punishment is what
made the most difference in a person's readiness to become a good member of
society.
But when the line of life is crossed, the entire "teach-a-lesson" rationale be-
comes a lie. The only persons who can "learn" from a lethal public ritual are the
others.
• The victims of the past crime (if they are alive) or their relatives can take
comfort from the fact that the person who hurt them has been hurt in return:
"vengeance" is the ordinary word for this. Vengefulness, taking comfort in
the pain of others, is not a good moral quality in an individual, but some feel
that it becomes right when the killing is done by the authorities.
• Those who stand to lose by a crime are reassured that it may be less likely
to happen to them—although this confidence in the "deterrent" effect is as
we have seen often mistaken.
• Persons who have not committed a crime should be warned that they should
not think of doing so, out of the fear that they may be caught and punished.
Yet, in fact, the limitations of our enforcement system do not make that threat
very real in the minds of most potential offenders.
• The civil authorities celebrate and reinforce their posture of social control. In
the Aryan feudal roots of our common law, the authority to dispose of the
life of one's subjects was what defined a lord's sovereignty. The killer claims
to be the instrument of God; he celebrates that his authority to rule is legiti-
mate, by having the right to destroy some of his subjects.
The purpose thus far of our itemizing a few of the diverse modes of motivation
has not been to be complete, but only to be broad enough to open for the reader
a sense of the complexity of things, and of the inadequacy of simple explanations.
Jesus and the Civil Order
The only clear reference to be found in the New Testament to the infliction of
death as a penalty is in John's Gospel (8:1-11). A woman was brought to Jesus
with the report that she was known to be guilty of adultery.11 "Moses has ordered
us in the Law to condemn women like this to death by stoning. What have you to
say?" The intention of the "scribes and pharisees," we are told, was to put Jesus
to a test; i.e., they were not really looking for help with defining or doing God's
will. Their primary motivation was not to wipe out adultery. They were, rather,
challenging Jesus to continue to exercise the authority he had been claiming while
teaching in the Temple (chap. 7). Jesus did not evade the challenge. We may,
therefore, rightly take his response as bearing on our study.
Jesus could well have pointed out that "Moses" (i.e., the Law, in Leviticus 20
and Deuteronomy 22) does not say that a woman should be condemned without
the man with whom she was caught in the act. Why did they bring him the woman
without the man? Jesus could have made an important point about male sexism
and the victimizing of women. But he chose not to.
Jesus could well have challenged the factual accuracy of their report about the
offense, as the law requires, and as a judge would have done. He did not. Nor did
he deny that the provision for death was in the Law. Nor did he cite in the woman's
defense, as a rabbinic court would have, the longstanding hesitancy of Jewish local
authorities, for several centuries already, to inflict the death penalty. He did not
(explicitly) make the point which according to the same Gospel "the Jews" later
argued before Pontius Pilate (18:31), namely, that under the Roman rules currently
in effect Jewish authorities did not have the right to put anyone to death. All of
these responses would have been fitting. In a full account, we should need to
consider them all. Jesus, however, preferred to make two other points, to which
we should also give priority.
"Let him that is without sin cast the first stone."12 If the death penalty is
understood as an act of God (as it certainly was in ancient Israel), then the judge
and executioner must be morally above reproach. "When they heard this they went
away one by one, beginning with the eldest...." Why was it the eldest who first
disqualified themselves? The Christian challenge to the death penalty properly be-
gins where Jesus does, by challenging the self-ascribed righteousness of those who
claim the authority to kill others.
Secondly, Jesus applied to this woman's offense his authority to forgive. He did
not deny her guilt, but he absolved it as far as punishment was concerned, and
liberated her from its power over her: "Sin no more." He recognized no differ-
entiation between the religious and the civil, according to which the sin could be
forgiven, yet punitive justice should still have to be done.
John's concern in telling this story was, of course, not to provide his readers
with new information about the legality of capital punishment.13 His testimony was
about the authority of Jesus as the One uniquely sent by the Father. That is just
our point. We are not studying law for its own sake; we are learning that the
saviorhood of Jesus applies to law, and to social punishment for sin, no less than
to prayer. Jesus as the forgiver of sin not only removes sin's power over the sinner's
behavior but also its power to dictate guiltiness and demand punishment.
Jesus' Good News Condones the Lesser Moral Level of the

Civil Order
Like the divorce which Deuteronomy 24 condoned, like the distortions of the law
which Jesus corrected in Matthew 5, like the institution of slavery, and the op-
pressive presence in Judea and Galilee of the Roman Empire which neither Jesus
nor Paul rose up against, capital punishment is one of those infringements on the
holy will of God in society, which can claim a certain formal legitimacy. The
gospel does not immediately eliminate such from secular society, since, being non-
coercive, the gospel cannot "rule the world" in that way. Yet, to condone the way
things stand is not approval: "from the beginning it was not so" (Matt. 19:8).
Jesus said that literally about the Mosaic provision for divorce; but the Christians
of the apostolic generation thought in the same way about the other points as well
where the world was ruled by pagan powers.
The new level of mutual love and forgiveness on which the redeemed com-
munity is called (and enabled by the Spirit) to live cannot be directly enforced on
the larger society; but since it is the gospel, i.e., since it represents authentically
good news for the real world, it will necessarily work as salt and light. This should
be true anywhere; even more evidently should it be the case in the Anglo-Saxon
world, where a large number of citizens claim some kind of Christian sanction for
society's values. If Christ is not only prophet and priest but also King, the border
between the church and the world cannot be impermeable to moral truth. Something
of the cross-bearing, forgiving love, and dignity which Jesus' life, death, and res-
urrection revealed to be the normative way to be human, must be the norm for all
humans, whether they know it or not. We cannot expect of anyone, not even of
believers, that that norm be lived out perfectly. Yet, is the calling of the followers
of Jesus to testify that there is no other norm. The one strategy which will not
serve that calling, which could not be done in the first century, and cannot be done
in our century, is to claim to possess, and to impose on society, a body of civil
rules independent of the faith of the persons called to respect them. The alternative
is to work within the acceptance of the others' unbelief, which is what I call
"condoning" the lesser moral level of the civil order.
Some will claim that to challenge the death penalty in the name of Christ is to
advocate anarchy. If sinners should be forgiven, if only the innocent may "throw
the first stone," they ask, where will we stop? Does this not destroy all govern-
ment?14
The question is not always meant sincerely. Most who ask it do not themselves
propose to follow the Mosaic law by advocating capital punishment for adultery
today. They do not really believe that society will collapse if rebellious sons are
not executed by stoning. Nonetheless, the question does merit attention. It illustrates
a real problem in relating Christian ethics to non-Christian society.
The first mistake that question makes is to assume that in interpreting a Christian
social critique, the right question to ask is how to "carry things to their logical
conclusion." That assumption distorts everything. Christian social criticism ad-
dresses a fallen world. Since that critique derives its ultimate standards from the
kingdom of God—for there are no other ultimate standards—to "carry them to
their logical conclusion" would mean the presence of that kingdom. Yet, that
consistent application would demand faith. It lies beyond the capacities and the
intentions of the rebellious world as it is in fact.
The Christian cannot expect that of fallen society. Thus to undercut Christ's call
by asking "where would this lead?" is to distort the whole problem. By the fact
of its rebellion, the "world" has guaranteed that Christian social critique will not
lead "too far." Yet, the resurrection and ascension of Christ guarantee that there
is no situation in which nothing can be done. The world can be challenged, one
point at a time, to take one step in the right direction, to move up one modest
notch in approximation of the righteousness of love.15 To challenge capital pun-
ishment no more undermines government than does the rejection of the oath (Matt.
5:33-37; James 5:12) undermine truth-telling; no more than does the concept of
the consent of the governed destroy the authority of the state.
The civil order is a fact. That it might be done away with by pushing the critique
of love "too far" is inconceivable. We saw above that Genesis 9, like every prim-
itive government, does not demand vengeance, since it is already present, but rather
works to restrain it. Thus the Christian (and any believer in democracy) will be
concerned to restrain the violent, vengeful potential of the state. That potential for
violence does not need our advocacy; it is already there.
"Anarchy," the scare concept quoted above, is a grammatical abstraction, an
intellectual construct, an imaginary entity. There is no such reality. There are var-
ying forms of government, from tyranny to constitutional democracy; there are
varying degrees of centralization of power, from the independent tribe through the
"nation" to world empire. Where the criminal underground is highly organized,
or in case of civil war, there may be two powers claiming authority over the same
territory. There may be great variation in how effectively a power controls its
subjects. Authority may be delegated or seized. It may be exercised wisely or
wantonly, overtly or undercover, with or without a constitution, with or without
the consent of the governed. But despite all these possible variations there is always
authority.16 In the (very rare) cases where it may seem that authority is functioning
too little for the welfare and stability of society, the reason is never that the critique
coming from the direction of Christian love has been too effective.
The scare concept of "anarchy" does not arise from the study of societies. It
is the creature of the mental urge to carry things to their "logical conclusions";
an urge which is out of place in a fallen world.
The second error in the "where will we stop?" argument is the notion that there
exists some clear and univocal concept of justice, having the same meaning in all
times and places, consisting in an exact logical or mathematical equivalence of
offense and retribution, and that such "justice" must (or can) be either wholly
respected or fundamentally rejected. In real life—and in clear logic—there is no
one sure yardstick by which to measure the ' 'justness'' of a penalty. Every culture
and every age has different conceptions of what is fair retribution. Opinions have
changed enormously from culture to culture as to how much it matters whether the
offender was human, adult, free and of a sound mind, and whether he was aware
of the law he broke. They vary enormously as well in judging what "equivalent*'
means. "Eye for eye" is measurable if there has been bodily injury, and "ox for
ox" will work in case of material loss; but what are the equivalent penalties for
adultery? for covetousness? We noted before that there is no command to lie to a
liar or to rape a rapist.
Justice is a direction, not an achievement. It is a relative, not an absolute concept.
Moral acts may be more just or less just, but we know of no ideal justice, distinct
from love, which "too much emphasis on love" would jeopardize. Justice may
well be undermined by lack of wisdom. It may be undermined by idealistic schemes
for reformation, by social criticism which does not propose relevant alternatives,
by a sentimental misunderstanding of the nature of love, or by failing to recognize
to how great an extent order and mutual respect have already been achieved by
the society one criticizes; but justice is not endangered by too much love.
Despite Concessions, No Other Lord

The classical Christian confession referred to earlier states that Jesus is not only
prophet, priest, and rabbi, but also Lord and King. Those are political names. Even
the name "Christ" (the Anointed One) was originally a royal designation. Chris-
tians begin to deny their Lord when they admit that there are certain realms of life
in which it would be inappropriate to bring Christ's rule to bear. Of course, non-
Christians will insist that we should keep our religion out of the way of their
politics. But the reason for that is not that Jesus has nothing to do with the public
realm; it is that they want nothing to do with Jesus as Lord.
If we confess that it is the Lamb that was slain who is "worthy . . . to receive
power and wealth and wisdom and might and honor and glory and blessing" (Rev.
5:12), we are relating the Cross to politics. If we ask who crucified Jesus and why,
the Cross is political at the outset. What we believe about Christ must apply to all
our behavior, no matter how many of our neighbors remain unconvinced. Of
course, the unbelief and the contrasting beliefs of our neighbors, added to our own
disobedience, will mean that no society will fully keep the law of God. When a
society falls short of his law, God knows how to use even that disobedience for
his glory. "Providence" is the traditional Christian word for the fact that God's
being in charge of history includes his power sovereignly and savingly to take into
account what the fallen world does against his will. This is not a reason for Chris-
tians to justify or to defend the lower level of behavior which results from unbelief,
whether it be in the political realm or elsewhere.
The words of Paul in Romans 13:1-7, which affirm that the "powers that be"
are subject to God, mean what I have just been saying. They have often been
further interpreted to say that, since the powers are under God, therefore Christians
have no grounds for criticizing what any given state does, or no standards to guide
such a criticism. Paul does not say that. He says that government is "for our
benefit" (v. 4); that it is God's servant when (or insofar as) it "perseveres toward
this very end" (v. 6).17
These expressions, as well as the parallel ones in 1 Peter 2:13ff., indicate that
there are standards of good and right order, not dependent on the arbitrary judgment
of individual rulers, by which government is to be judged. The state is not a law
unto itself. This does not authorize us to rebel against an unjust state by using
against it the same weapons it uses oppressively. It does, however, give us stan-
dards for identifying oppression and grounds for denouncing it. No standard is
more simply applicable to what governments do than "Thou shalt not kill."18
The Romans passage is but one application of a New Testament truth which is
stated more frequently and more clearly in other texts. The broader claim is that
"Christ is Lord" (Phil. 2:11; 1 Cor. 12:3). His status as "Lord" does not apply
only to the church; Christ is exalted "far above every principality and power, and
might, and dominion, and every name that is named..." (Eph. 1:21; Phil. 2:10;
1 Cor. 15:27; Matt. 28:18). Protestant tradition as we saw has used the term prov-
idence to say the same thing.
The world does not acknowledge Christ as Lord; but his being Lord is not
dependent on the world's acknowledgement, any more than George Bush's being
President in 1989 was dependent on whether all U.S. citizens and resident aliens
liked him, or on whether they were all informed that he had been elected and
inaugurated. A government, like any rebellious power, can attempt to be indepen-
dent, can claim to be its own master, but Christians know that the claim is false
and the attempt doomed to fail.
It is not our theme here to discuss the Christian view of government in general.19
The mere confession of Christ's dominion generates conclusions sufficient for our
present purpose. If it is as the apostles said, that Jesus Christ and not some other
lord rules at the right hand of God over the powers of this world, then the purpose,
goals, and standards of that rule can be no other than this same Jesus revealed to
us, when in the flesh; he came not to destroy but to save. On the grounds of his
rule, it can then not be the duty of governments to destroy life.
The Sword in Apostolic Thought

The New Testament Epistles are silent about capital punishment. The apostles do
instruct their readers that they are to be subject to their rulers. Rulers are supposed
to rule "for your benefit" (Rom. 13:4). Those who chose to break the law called
down punishment upon themselves; but there is no reference in the epistles to
specific penalties. Rulers should enable us to "lead religious and reverent lives in
peace and quiet" (1 Tim. 2:2). Governors should "punish criminals and encourage
good citizenship" (1 Pet. 2:14), but there is no specification of the content either
of the citizenship or the "punishment."
The "sword" (machaird), of which Paul writes to the Romans that rulers do
not "bear it in vain," is the symbol of judicial authority, not the weapon of either
war or the death penalty. In imperial Rome the machaira was not the arm either
of the soldier in combat or of the executioner. The civil order as such is the theme
of the passage. The state's taking of life is not.
There is in the Epistles no allusion to the provision for animal sacrifice or for
killing killers in the covenant with Noah, and none of the apostles—Jews that they
all were—would have thought of the Roman courts as applying the Mosaic penal
provisions.
The Epistles say even less than do the Gospels about urging society to move
toward the Kingdom; that should be no surprise. The Epistles are addressed to
believers who constitute an infinitesimal minority within Roman/Mediterranean cul-
ture; there was no place for them to contemplate immediately effective social cri-
tique. The Gospels, on the other hand, recount Jesus' impact in a setting where
Hebraic notions of divine justice were less alien. Jesus' gracious demands (or
rather, offers) were not accepted by all who heard him, but they were not incon-
ceivable for his Jewish hearers. The notions of a personal, caring, intervening,
righteous, demanding, chastising God which underlay Jesus' message, and his for-
giving practice, had been understandable to Jesus' Jewish hearers, but they would
not have been to the polytheistic Romans.
It is thus formally wrong to look in the New Testament for specific guidelines
for a good civil society. If such prescriptions had been given, they would embarrass
us, as they would have had to be written to fit first-century Mediterranean condi-
tions. We should rather look there for a general orientation toward ultimate human
values and the nature of redemption, and then ask for our time what those meanings
have to say. This is what happens when we remember that the foundational level
of the Hebraic vision with which we began was not about civil penalties but about
ritual expiation.
Notes
1. The noun translated "man" (Hebrew adorn) here is generic; it means humankind.
The Hebrew reader's mind is thrown back to the beginning of chapter 2, where adorn meant
the human race, without gender division or individuation. That Creation narrative was the
only place where God's "image" had previously been referred to.
2. Expert Scripture scholarship has projected diverse hypotheses as to the original dates
and original authorship of the several strands of the Mosaic literature. That speculation
would call into question some simple arguments based on the assumption that a text like
that of Genesis was originally a literary unity. There is, however, no serious scholarly claim
according to which Genesis 9 would be older than Genesis 4.
3. The ground is personified. "The voice of your brother's blood cries to me from the
ground" (4:10); the metaphor of "blood" for life is the same as in chapter 9. Yet the "cry"
of the blood is not to be satisfied. God intervenes to save the murderer.
4. Patristic symbolic theology speculated that the "sign" given to Cain to protect him
was tau or the cross. Biblical scholars hypothesize that it may have been the trace of a
tattoo worn by metalworkers; in the ancient world smelting was thought of as a secret stolen
from the gods of the underworld. Lloyd R. Bailey, Capital Punishment: What the Bible Says
(Nashville: Abingdon Press, 1987), 40.
5. JHWH (usually pronounced "Yahweh") is the proper name of God. "Lord" in the
AV and in Jewish piety is a reverent substitution. Jehovah and Yahweh are hypothetical
reconstructions of the name. Bailey (39 and 107) suggests that Yahweh made a mistake;
that if vengeance against Cain had been permitted, then "violence in the earth" would not
have escalated so as to necessitate the Deluge. This would take more argument than either
Bailey or Genesis provides. Genesis 6:6 says that what God regretted was having created
mankind, not having protected Cain. Bailey also makes much of the claim (40, 70) that
narrative texts should not be taken as bearing moral instruction. This is an assertion without
an argument. Of course each genre of literature should be read in its own terms. Bailey
would have done well to distinguish more than he does between Genesis 9 and the Mosaic
civil code, or between "moral" and "civil" texts. But narrative can be the vehicle of moral
instruction, especially in settings called etiological, i.e., texts which deal with why and how
things came to be, or in texts exhibiting God's or Jesus' character.
6. Lamech's reference to Cain should not mislead us to think that he was escalating
what had been said before by Yahweh. (a) The vengeance threatened in Genesis 4:15 was
to be inflicted by Yahweh, but Lamech avenged himself; (b) the threat of 4:15 was successful
in deterring harm to Cain, and was not carried out.
7. Some have argued that "by man shall his blood be shed" is a simple future rather
than an imperative; a prediction but not an authorization. That is too little. God avows that
the retributive process is under his rule: "I will require a reckoning." Yet, what God thus
owns is an extant practice; he does not create a new institution nor decree a new duty.
8. Bailey, 32.
9. Under "retribution" we shall return later to the question of emotion.
10. Cf. Karl Barth Church Dogmatics (Edinburgh: Clark, 1961), Vol. HI/4, p. 442f.:
* 'Which category of particularly great sinners is exempted from the pardon effected on the
basis of the death penalty carried out at Calvary? Now that Jesus Christ has been nailed to
the cross for the sins of the world, how can we still use the thought of expiation to establish
the death penalty?"
11. The first narrative in chapter 8 is missing in some of the ancient manuscripts, and
some doubt that it was originally part of the Gospel; but even those scholars who doubt
that these verses were originally in John's Gospel tend to grant that it nonetheless represents
an authentic tradition.
12. That the persons bearing the incriminating witness should cast the first stone is part
of the provision of Deuteronomy 17:7.
13. Cf., note 5, the reference to Bailey's exaggerated dislike for seeing moral meaning
in narrative texts.
14. "... the opponents of capital punishment offer no theory of civil government...";
Gordon H. Clark, "Capital Punishment and the Bible," Christianity Today, February 1,
1960, p. 10. As a rationalistic philosopher, Clark felt that to have the right to say anything
about human justice you must have a theory covering everything in the field.
15. Cf. my Christian Witness to the State (Newton, Kans.: Faith and Life Press, 1964),
60ff.
16. The above argument has to do with authority in the sense of the state. Sober social
science will add that there are also always other kinds of nonstate authority holding societies
together; the orders of the clan, the marketplace, the school, religion, entertainment....
17. Cf. my Politics of Jesus (Grand Rapids: Eerdmans, 1972), pp. 207ff.
18. Jean Lasserre, "The 'Good' in Romans 13" in Donald Durnbaugh, ed., On Earth
Peace (Elgin, HI.: Brethren Press, 1978), 130-35.
19. I do offer some of this in my Christian Witness to the State, (note 15 above), and
in my Priestly Kingdom (Notre Dame, Ind.: Notre Dame University Press, 1985), 151-71.
32
The Death Penalty Once More

ERNEST VAN DEN HAAG
People concerned with capital punishment disagree on essentially three questions:

(1) Is it constitutional? (2) Does the death penalty deter crime more than life
imprisonment? (3) Is the death penalty morally justifiable?
I. Is The Death Penalty Constitutional?
The fifth amendment, passed in 1791, states that "no person shall be deprived of
life, liberty, or property, without due process of law." Thus, with "due process of
law," the Constitution authorizes depriving persons "of life, liberty or property."
The fourteenth amendment, passed in 1868, applies an identical provision to the
states. The Constitution, then, authorizes the death penalty. It is left to elected
bodies to decide whether or not to retain it.
The eighth amendment, reproducing almost verbatim a passage from the English
Bill of Rights of 1689, prohibits "cruel and unusual punishments." This prohibi-
tion was not meant to repeal the fifth amendment since the amendments were
passed simultaneously. "Cruel" punishment is not prohibited unless "unusual" as
well, that is, new, rare, not legislated, or disproportionate to the crime punished.
Neither the English Bill of Rights, nor the eighth amendment, hitherto has been
found inconsistent with capital punishment.
A. Evolving Standards
Some commentators argue that, in Trop v. Dulles, the Supreme Court indicated
that "evolving standards of decency that mark the progress of a maturing society"
allow courts to declare "cruel and unusual," punishments authorized by the Con-
stitution. However, Trop was concerned with expatriation, a punishment that is not
specifically authorized by the Constitution. The death penalty is. Trop did not
suggest that "evolving standards" could de-authorize what the Constitution re-
Reprinted by permission of the publisher, from University of California-Davis Law Review, 18, no. 4
(summer 1985): 957-72.
445
peatedly authorizes. Indeed, Chief Justice Warren, writing for the majority in Trap,
declared that "the death penalty... cannot be said to violate the constitutional
concept of cruelty."1 Furthermore, the argument based on "evolving standards"
is paradoxical: the Constitution would be redundant if current views, enacted by
judicial fiat, could supersede what it plainly says. If "standards of decency" cur-
rently invented or evolved could, without formal amendment, replace or repeal the
standards authorized by the Constitution, the Constitution would be superfluous.
It must be remembered that the Constitution does not force capital punishment
on the population but merely authorizes it. Elected bodies are left to decide whether
to use the authorization. As for "evolving standards," how could courts detect
them without popular consensus as a guide? Moral revelations accepted by judges,
religious leaders, sociologists, or academic elites, but not by the majority of voters,
cannot suffice. The opinions of the most organized, most articulate, or most vocal
might receive unjustified deference. Surely the eighth amendment was meant to
limit, but was not meant to replace, decisions by the legislative branch, or to enable
the judiciary do what the voters won't do.2 The general consensus on which the
courts would have to rely could be registered only by elected bodies. They favor
capital punishment. Indeed, at present, more than seventy percent of the voters
approve of the death penalty. The state legislatures reflect as much. Wherefore, the
Supreme Court, albeit reluctantly, rejected abolition of the death penalty by judicial
fiat. This decision was subsequently qualified by a finding that the death penalty
for rape is disproportionate to the crime,3 and by rejecting all mandatory capital
punishment.4
B. Caprice
Laws that allowed courts too much latitude to decide, perhaps capriciously, whether
to actually impose the death penalty in capital cases also were found unconstitu-
tional. In response, more than two-thirds of the states have modified their death
penalty statutes, listing aggravating and mitigating factors, and imposing capital
punishment only when the former outweigh the latter. The Supreme Court is sat-
isfied that this procedure meets the constitutional requirements of non-
capriciousness. However, abolitionists are not.
In Capital Punishment: The Inevitability of Caprice and Mistake, Professor
Charles Black contends that the death penalty is necessarily imposed capriciously,
for irremediable reasons. If he is right, he has proved too much, unless capital
punishment is imposed more capriciously now than it was in 1791 or 1868, when
the fifth and fourteenth amendments were enacted. He does not contend that it is.
Professor Black also stresses that the elements of chance, unavoidable in all pe-
nalizations, are least tolerable when capital punishment is involved. But the irre-
ducible chanciness inherent in human efforts does not constitutionally require the
abolition of capital punishment, unless the framers were less aware of chance and
human frailty than Professor Black is. (I shall turn to the moral as distinguished
from the legal bearing of chanciness anon.)
The Death Penalty Once More 447
C. Discrimination
Sociologists have demonstrated that the death penalty has been distributed in a
discriminatory pattern in the past: black or poor defendants were more likely to be
executed than equally guilty others. This argues for correction of the distributive
process, but not for abolition of the penalty it distributes, unless constitutionally
excessive maldistribution ineluctably inheres in the penalty. There is no evidence
to that effect. Actually, although we cannot be sure that it has disappeared alto-
gether, discrimination has greatly decreased compared to the past.5
However, recently the debate on discrimination has taken a new turn. Statistical
studies have found that, ceteris paribus, a black man who murders a white has a
much greater chance to be executed than he would have had, had his victim been
black.6 This discriminates against black victims of murder: they are not as fully, or
as often, vindicated as are white victims. However, although unjustified per se,
discrimination against a class of victims need not, and here does not, amount to
discrimination against their victimizers. The pattern discriminates against black
murderers of whites and for black murderers of blacks. One may describe it as
discrimination for, or discrimination against, just as one may describe a glass of
water as half full or half empty. Discrimination against one group (here, blacks
who kill whites) is necessarily discrimination in favor of another (here, blacks who
kill blacks).
Most black victims are killed by black murderers, and a disproportionate number
of murder victims is black. Wherefore the discrimination in favor of murderers of
black victims more than offsets, numerically, any remaining discrimination against
other black murderers.7
D. Comparative Excessiveness
Recently lawyers have argued that the death penalty is unconstitutionally dispro-
portionate if defendants, elsewhere in the state, received lesser sentences for com-
parable crimes. But the Constitution only requires that penalties be appropriate to
the gravity of the crime, not that they cannot exceed penalties imposed elsewhere.
Although some states have adopted "comparative excessiveness" reviews, there is
no constitutional requirement to do so.
Unavoidably, different courts, prosecutors, defense lawyers, judges and juries
produce different penalties even when crimes seem comparable. Chance plays a
great role in human affairs. Some offenders are never caught or convicted, while
others are executed; some are punished more than others guilty of worse crimes.
Thus, a guilty person, or group of persons, may get away with no punishment, or
with a light punishment, while others receive the punishment they deserve. Should
we let these others go too, or punish them less severely? Should we abolish the
penalty applied unequally or discriminatorily?8
The late Justice Douglas suggested an answer to these questions:
A law that... said that blacks, those who never went beyond the fifth grade in school,
those who made less than $3,000 a year, or those who were unpopular or unstable
should be the only people executed [would be wrong]. A law which in the overall
view reaches that result in practice has no more sanctity than a law which in terms
provides the same.9
Justice Douglas' answer here conflates an imagined discriminatory law with the
discriminatory application of a non-discriminatory law. His imagined law would
be inconsistent with the *'equal protection of the laws" demanded by the fourteenth
amendment, and the Court would have to invalidate it ipso facto. But discrimination
caused by uneven application of non-discriminatory death penalty laws may be
remedied by means other than abolition, as long as the discrimination is not in-
trinsic to the laws.
Consider now, albeit fleetingly, the moral as distinguished from the constitu-
tional bearing of discrimination. Suppose guilty defendants are justly executed, but
only if poor, or black and not otherwise. This unequal justice would be morally
offensive for what may be called tautological reasons:10 if any punishment for a
given crime is just, then a greater or lesser punishment is not. Only one punishment
can be just for all persons equally guilty of the same crime.11 Therefore, different
punishments for equally guilty persons or group members are unjust: some offend-
ers are punished more than they deserve, or others less.
Still, equality and justice are not the same. "Equal justice" is not a redundant
phrase. Rather, we strive for two distinct ideals, justice and equality. Neither can
replace the other. We want to have justice and, having it, we want to extend it
equally to all. We would not want equal injustice. Yet, sometimes, we must choose
between equal injustice and unequal justice. What should we prefer? Unequal jus-
tice is justice still, even if only for some, whereas equal injustice is injustice for
all. If not every equally guilty person is punished equally, we have unequal justice.
It seems preferable to equal injustice—having no guilty person punished as de-
served.12 Since it is never possible to punish equally all equally guilty murderers,
we should punish, as they deserve, as many of those we apprehend and convict as
possible. Thus, even if the death penalty were inherently discriminatory—which is
not the case—but deserved by those who receive it, it would be morally just to
impose it on them. If, as I contend, capital punishment is just and not inherently
discriminatory, it remains desirable to eliminate inequality in distribution, to apply
the penalty to all who deserve it, sparing no racial or economic class. But if a
guilty person or group escaped the penalty through our porous system, wherein is
this an argument for sparing others?
If one does not believe capital punishment can be just, discrimination becomes
a subordinate argument, since one would object to capital punishment even if it
were distributed equally to all the guilty. If one does believe that capital punishment
for murderers is deserved, discrimination against guilty black murderers and in
favor of equally guilty white murderers is wrong, not because blacks receive the
deserved punishment, but because whites escape it.
Consider a less emotionally charged analogy. Suppose traffic police ticketed all
drivers who violated the rules, except drivers of luxury cars. Should we abolish
tickets? Should we decide that the ticketed drivers of nonluxury cars were unjustly
punished and ought not to pay their fines? Would they become innocent of the
violation they are guilty of because others have not been ticketed? Surely the
drivers of luxury cars should not be exempted. But the fact that they were is no
reason to exempt drivers of nonluxury cars as well. Laws could never be applied
if the escape of one person, or group, were accepted as ground for not punishing
another. To do justice is primarily to punish as deserved, and only secondarily to
punish equally.
Guilt is personal. No one becomes less guilty or less deserving of punishment
because another was punished leniently or not at all. That justice does not catch
up with all guilty persons understandably is resented by those caught. But it does
not affect their guilt. If some, or all, white and rich murderers escape the death
penalty, how does that reduce the guilt of black or poor murderers, or make them
less deserving of punishment, or deserving of a lesser punishment?
Some lawyers have insisted that the death penalty is distributed among those
guilty of murder as though by a lottery and that the worst may escape it.13 They
exaggerate, but suppose one grants the point. How do those among the guilty
selected for execution by lottery become less deserving of punishment because
others escaped it? What is wrong is that these others escaped, not that those among
the guilty who were selected by the lottery did not.
Those among the guilty actually punished by a criminal justice system una-
voidably are selected by chance, not because we want to so select them, but because
the outcome of our efforts largely depends on chance. No murderer is punished
unless he is unlucky enough both to be caught and to have convinced a court of
his guilt. And courts consider evidence not truth. They find truth only when the
evidence establishes it. Thus they may have reasonable doubts about the guilt of
an actually guilty person. Although we may strive to make justice as equal as
possible, unequal justice will remain our lot in this world. We should not give up
justice, or the death penalty, because we cannot extend it as equally to all the guilty
as we wish. If we were not to punish one offender because another got away
because of caprice or discrimination, we would give up justice for the sake of
equality. We would reverse the proper order of priorities.
II. Is the Death Penalty More Deterrent Than

Other Punishments?
Whether or not the death penalty deters the crimes it punishes more than alternative
penalties—in this case life imprisonment with or without parole—has been widely
debated since Isaac Ehrlich broke the abolitionist ranks by finding that from 1933-
65 "an additional execution per year . . . may have resulted on the average in seven
or eight fewer murders."14 Since his article appeared, a whole cottage industry
devoted to refuting his findings has arisen. Ehrlich, no slouch, has been refuting
those who refuted him.15 The result seems inconclusive.16 Statistics have not proved
conclusively that the death penalty does or does not deter murder more than other
penalties. Still, Ehrlich has the merit of being the first to use a sophisticated sta-
tistical analysis to tackle the problem, and of defending his analysis, although it
showed deterrence. (Ehrlich started as an abolitionist.) His predecessors cannot be
accused of mathematical sophistication. Yet the academic community uncritically
accepted their abolitionist results. I myself have no contribution to make to the
mathematical analyses of deterrent effects. Perhaps this is why I have come to
believe that they may becloud the issue, leading us to rely on demonstrable deter-
rence as though decisive.
Most abolitionists believe that the death penalty does not deter more than other
penalties. But most abolitionists would abolish it, even if it did.171 have discussed
this matter with prominent abolitionists such as Charles Black, Henry Schwarzsch-
ild, Hugo Adam Bedau, Ramsey Clark, and many others. Each told me that, even
if every execution were to deter a hundred murders, he would oppose it. I infer
that, to these abolitionist leaders, the life of every murderer is more valuable than
the lives of a hundred prospective victims, for these abolitionists would spare the
murderer, even if doing so would cost a hundred future victims their lives.
Obviously, deterrence cannot be the decisive issue for these abolitionists. It is
not necessarily for me either, since I would be for capital punishment on grounds
of justice alone. On the other hand, I should favor the death penalty for murderers,
if probably deterrent, or even just possibly deterrent. To me, the life of any innocent
victim who might be spared has great value; the life of a convicted murderer does
not. This is why I would not take the risk of sacrificing innocents by not executing
murderers.
Even though statistical demonstrations are not conclusive, and perhaps cannot
be, I believe that capital punishment is likely to deter more than other punishments
because people fear death more than anything else. They fear most death deliber-
ately inflicted by law and scheduled by the courts. Whatever people fear most is
likely to deter most. Hence, I believe that the threat of the death penalty may deter
some murderers who otherwise might not have been deterred. And surely the death
penalty is the only penalty that could deter prisoners already serving a life sentence
and tempted to kill a guard, or offenders about to be arrested and facing a life
sentence. Perhaps they will not be deterred. But they would certainly not be de-
terred by anything else. We owe all the protection we can give to law enforcers
exposed to special risks.
Many murders are "crimes of passion" that, perhaps, cannot be deterred by any
threat. Whether or not they can be would depend on the degree of passion; it is
unlikely to be always so extreme as to make the person seized by it totally unde-
terrable. At any rate, offenders sentenced to death ordinarily are guilty of premed-
itated murder, felony murder, or multiple murders. Some are rape murderers, or
hit men, but, to my knowledge, no one convicted of a "crime of passion" is on
death row. Whatever the motive, some prospective offenders are not deterrable at
all, others are easily deterred, and most are in between. Even if only some murders
were, or could be, deterred by capital punishment, it would be worthwhile.
Sometimes an anecdote, invented in the 19th Century, is told to suggest that the
threat of the death penalty does not deter. Some pickpockets are said to have gone
eagerly about their business in a crowd assembled to see one of them hang. We
are not told what the level of their activity was, compared to the level in crowds
of similar size assembled for different purposes. Thus, the anecdote merely shows
that the death penalty does not deter some criminals. This never was contested.
Almost all convicted murderers try to avoid the death penalty by appeals for
commutation to life imprisonment. However, a minuscule proportion of convicted
murderers prefer execution. It is sometimes argued that they murdered for the sake
of being executed, of committing suicide via execution. More likely, they prefer
execution to life imprisonment. Although shared by few, this preference is not
irrational per se. It is also possible that these convicts accept the verdict of the
court, and feel that they deserve the death penalty for the crimes they committed,
although the modern mind finds it hard to imagine such feelings. But not all mur-
derers are ACLU humanists.
Because those sentenced to death tend to sedulously appeal the verdict of the
trial courts, executions are correctly said to be costly. It is doubtful, however, that
they are more costly than life imprisonment. Contrary to widely shared assump-
tions, life prisoners spend much of then* time preparing habeas corpus appeals (not
to speak of other lawsuits) just as prisoners condemned to death do.18 But even if
execution were more costly than life imprisonment, it should not be abandoned if
it is just. If unjust, execution should not occur, even if it were cheap and impris-
onment costly. But execution probably is less costly than life imprisonment.
III. Is the Death Penalty Moral?
A. Miscarriages
Miscarriages of justice are rare, but do occur. Over a long enough time they lead
to the execution of some innocents.19 Does this make irrevocable punishments
morally wrong? Hardly. Our government employs trucks. They run over innocent
bystanders more frequently than courts sentence innocents to death. We do not give
up trucks because the benefits they produce outweigh the harm, including the death
of innocents. Many human activities, even quite trivial ones, foreseeably cause
wrongful deaths. Courts may cause fewer wrongful deaths than golf. Whether one
sees the benefit of doing justice by imposing capital punishment as moral, or as
material, or both, it outweighs the loss of innocent lives through miscarriages,
which are as unintended as traffic accidents.
B. Vengeance
Some abolitionists feel that the motive for the death penalty is an un-Christian and
unacceptable desire for vengeance. But though vengeance be the motive, it is not
the purpose of the death penalty. Doing justice and deterring crime are the purposes,
whatever the motive. Purpose (let alone effect) and motive are not the same.
The Lord is often quoted as saying "Vengeance is mine." He did not condemn
vengeance. He merely reserved it to Himself—and to the government. For, in the
same epistle He is also quoted as saying that the ruler is ' 'the minister of God, a
revenger, to execute wrath upon him that doeth evil." The religious notion of hell
indicates that the biblical God favored harsh and everlasting punishment for some.
However, particularly in a secular society, we cannot wait for the day of judgment
to see murderers consigned to hell. Our courts must "execute wrath upon him that
doeth evil" here and now.
C. Charity and Justice

Today many religious leaders oppose capital punishment. This is surprising, be-
cause there is no biblical warrant for their opposition. The Roman Catholic Church
and most Protestant denominations traditionally have supported capital punishment.
Why have their moral views changed? When sharing secular power, the churches
clearly distinguished between justice, including penalization as deserved, a function
of the secular power, and charity, which, according to religious doctrine, we should
feel for all those who suffer for whatever reasons. Currently, religious leaders seem
to conflate justice and charity, to conclude that the death penalty and, perhaps, all
punishment, is wrong because uncharitable. Churches no longer share secular
power. Perhaps bystanders are more ready to replace justice with charity than are
those responsible for governing.
D. Human Dignity
Let me return to the morality of execution. Many abolitionists believe that capital
punishment is "degrading to human dignity" and inconsistent with the "sanctity
of life." Justice Brennan, concurring in Furman, stressed these phrases repeatedly.
He did not explain what he meant.
Why would execution degrade human dignity more than life imprisonment? One
may prefer the latter; but it seems at least as degrading as execution. Philosophers,
such as Immanuel Kant and G. F. W. Hegel, thought capital punishment indispen-
sable to redeem, or restore, the human dignity of the executed. Perhaps they were
wrong. But they argued their case, whereas no one has explained why capital
punishment degrades. Apparently those who argue that it does degrade dignity
simply define the death penalty as degrading. If so, degradation (or dehumanization)
merely is a disguised synonym for their disapproval. Assertion, reassertion, or def-
inition do not constitute evidence or argument, nor do they otherwise justify, or
even explain, disapproval of capital punishment.
Writers, such as Albert Camus, have suggested that murderers have a miserable
time waiting for execution and anticipating it.20 I do not doubt that. But punish-
ments are not meant to be pleasant. Other people suffer greatly waiting for the end,
in hospitals, under circumstances that, I am afraid, are at least as degrading to their
dignity as execution. These sufferers have not deserved their suffering by com-
mitting crimes, whereas murderers have. Yet, murderers suffer less on death row,
unless their consciences bother them.
E. Lex Talionis
Some writers insist that the suffering the death penalty imposes on murderers ex-
ceeds the suffering of their victims. This is hard to determine, but probably true
in some cases and not in other cases. However, the comparison is irrelevant. Mur-
derers are punished, as are all offenders, not just for the suffering they caused their
victims, but for the harm they do to society by making life insecure, by threatening
everyone, and by requiring protective measures. Punishment, ultimately, is a vin-
dication of the moral and legal order of society and not limited by the Lex Talionis,
meant to limit private retaliation for harms originally regarded as private.
F. Sanctity of Life
We are enjoined by the Declaration of Independence to secure life. How can this
best be achieved? The Constitution authorizes us to secure innocent life by taking
the life of murderers, so that any one who deliberately wants to take an innocent
life will know that he risks forfeiting his own. The framers did not think that taking
the life of a murderer is inconsistent with the "sanctity of life" which Justice
Brennan champions. He has not indicated why they were wrong.21
G. Legalized Murder?
Ever since Cesare Bonesana, Marchese di Beccaria, wrote Dei Delitti e Delle Pene,
abolitionists have contended that executing murderers legitimizes murder by doing
to the murderer what he did to his victim. Indeed, capital punishment retributes,
or pays back the offender. Occasionally we do punish offenders by doing to them
what they did to their victims. We may lock away a kidnapper who wrongfully
locked away his victim, and we may kill the murderer who wrongfully killed his
victim. To lawfully do to the offender what he unlawfully did to his victim in no
way legitimizes his crime. It legitimizes (some) killing, and not murder. An act
does not become a crime because of its physical character, which, indeed, it may
share with the legal punishment, but because of its social, or, better, antisocial,
character—because it is an unlawful act.
H. Severity
Is the death penalty too severe? It stands in a class by itself. But so does murder.
Execution is irreparable. So is murder. In contrast, all other crimes and punishments
are, at least partly or potentially, reparable. The death penalty thus is congruous
with the moral and material gravity of the crime it punishes.22
Still, is it repulsive? Torture, however well deserved, now is repulsive to us.
But torture is an artifact. Death is not, since nature has placed us all under sentence
of death. Capital punishment, in John Stuart Mill's phrase, only "hastens death"—
which is what the murderer did to his victim. I find nothing repulsive in hastening
the murderer's death, provided it be done in a nontorturous manner. Had he wished

to be secure in his life, he could have avoided murder.
To believe that capital punishment is too severe for any act, one must believe
that there can be no act horrible enough to deserve death.231 find this belief difficult
to understand. I should readily impose the death penalty on a Hitler or a Stalin, or
on anyone who does what they did, albeit on a smaller scale.
Conclusion
The death penalty has become a major issue in public debate. This is somewhat
puzzling, because quantitatively it is insignificant. Still, capital punishment has
separated the voters as a whole from a small, but influential, abolitionist elite. There
are, I believe, two reasons that explain the prominence of the issue.
First, I think, there is a genuine ethical issue. Some philosophers believe that
the right to life is equally imprescriptible for all, that the murderer has as much
right to live as his victim. Others do not push egalitarianism that far. They believe
that there is a vital difference, that one's right to live is lost when one intentionally
takes an innocent life, that everyone has just the right to one life, his own. If he
unlawfully takes that of an other he, eo ipso, loses his own right to life.
Second, and perhaps as important, the death penalty has symbolic significance.
Those who favor it believe that the major remedy for crime is punishment. Those
who do not, in the main, believe that the remedy is anything but punishment. They
look at the causes of crime and conflate them with compulsions, or with excuses,
and refuse to blame. The majority of the people are less sophisticated, but perhaps
they have better judgment. They believe that everyone who can understand the
nature and effects of his acts is responsible for them, and should be blamed and
punished, if he could know that what he did was wrong. Human beings are human
because they can be held responsible, as animals cannot be. In that Kantian sense
the death penalty is a symbolic affirmation of the humanity of both victim and
murderer.
Notes
1. 356 U.S. 86 (1958) at 99.
2. The courts have sometimes confirmed the obsolescence of non-repealed laws or
punishments. But here they are asked to invent it.
3. In Coker v. Georgia, 433 U.S. 584, 592 (1977), the Court concluded that the eighth
amendment prohibits punishments that are " 'excessive' in relation to the crime committed."
I am not sure about this disproportion. However, threatening execution would tempt rapists
to murder their victims who, after all, are potential witnesses. By murdering their victims,
rapists would increase their chances of escaping execution without adding to their risk.
Therefore, I agree with the court's conclusion, though not with its argument.
4. See Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428
U.S. 325 (1976). Once more I disagree with the reasoning, at least in part, but welcome the
conclusion, since mandatory capital punishment risks jury cancellations.
5. Most discrimination occurred in rape cases and was eliminated when the death pen-
alty for rape was declared unconstitutional.
6. For a survey of the statistical literature, see, e.g., Bowers, The Pervasiveness of
Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 74 J. CRIM. L. &
CRIMINOLOGY 1067 (1983). His article is part of a "Symposium on Current Death Penalty
Issues'' compiled by death penalty opponents.
7. Those who demonstrated the pattern seem to have been under the impression that
they had shown discrimination against black murderers. They were wrong. However, the
discrimination against black victims is invidious and should be corrected.
8. The capriciousness argument is undermined when capriciousness is conceded to be
unavoidable. But even when capriciousness is thought reducible, one wonders whether re-
leasing or retrying one guilty defendant, because another equally guilty defendant was not
punished as much, would help reduce capriciousness. It does not seem a logical remedy.
9. Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J., concurring).
10. I shall not consider here the actual psychological motives that power our unending
thirst for equality.
11. If courts impose different punishments on different persons, we may not be able to
establish in all cases whether the punishment is just, or (it amounts to the same) whether
the different persons were equally guilty of the same crime, or whether their crimes were
identical in all relevant respects. Thus, we may not be able to tell which of two unequal
punishments is just. Both may be, or neither may be. Inequality may not entail more injustice
than equality, and equality would entail justice only if we were sure that the punishment
meted out was the just punishment.
12. Similarly, it is better that only some innocents suffer undeserved punishment than
that all suffer it equally.
13. It would be desirable that all of the worst murderers be sentenced to death. However,
since murderers are tried in different courts, this is unlikely. Further, sometimes the testi-
mony of one murderer is needed to convict another, and cannot be obtained except by
leniency. Morally, and legally it is enough that those sentenced to death deserve the penalty
for their crimes, even if others, who may deserve it as much, or more, were not sentenced
to death.
14. Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life or Death,
65 AM. ECON. REV. 397, 414 (1975).
15. Ehrlich, Fear of Deterrence, 6 J. LEGAL STUD. 293 (1977); Ehrlich & Gibbons, On
the Measurement of the Deterrent Effect of Capital Punishment and the Theory of Deter-
rence, 6 J. LEGAL STUD. 35 (1977).
16. At present there is no agreement even on whether the short run effects of executions
delay or accelerate homicides. See Phillips, The Deterrent Effect of Capital Punishment:
New Evidence on an Old Controversy, 86 AM. J. Soc. 139 (1980).
17. Jeffrey Reiman is an honorable exception. See Reiman, Justice, Civilization, and the
Death Penalty: Answering van den Haag, 14 PHIL. & PUB. AFF. 115 (1985).
18. Often the marginal cost of appeals is erroneously compared to the average cost of
imprisonment. See, e.g., Kaplan, The Problem of Capital Punishment, 1983 U. ILL. L. REV.
555.
19. Life imprisonment avoids the problem of executing innocent persons to some extent.
It can be revoked. But the convict also may die in prison before his innocence is discovered.
20. In Reflections on the Guillotine, Camus stated that "[t]he parcel [the condemned
person] is no longer subject to the laws of chance that hang over the living creature but to
mechanical laws that allow him to foresee accurately the day of his beheading.... The
Greeks, after all, were more humane with their hemlock." A. Camus, RESISTANCE, REBEL-
LION AND DEATH 175, 202 (1960).
21. " Sanctity of life" may mean that we should not take, and should punish taking
innocent life: "homo homini res sacra." In the past this meant that we should take the life
of a murderer to secure innocent life, and stress its sacredness. Justice Brennan seems to
mean that the life of the murderer should be sacred too—but no argument is given for this
premise.
22. Capital punishment is not inconsistent with Weems v. United States, 217 U.S. 349
(1910), which merely held that punishment cannot be excessive, that is, out of proportion
to the gravity of the crime. Indeed, if life imprisonment suffices for anything else, it cannot
be appropriate for murder.
23. The notion of deserving is strictly moral, depending exclusively on our sense of
justice, unlike the notion of deterrence, which depends on the expected factual consequences
of punishment. Whilst deterrence alone would justify most of the punishments we should
impose, it may not suffice to justify all those punishments that our sense of justice demands.
Wherefore criminal justice must rest on desert as well as deterrence, to be seen as morally
justified.
33
A Reply to van den Haag

H. A. BEDAU
Ernest van den Haag divides his defense of the death penalty into three sections:
its constitutionality, its preventive effects, and its moral status. It will be convenient
to address his criticisms in the order in which he presents them, even though that
may make for somewhat tedious reading. For readers of this book, he devotes
disproportionate space to constitutional questions; they have already received sub-
stantial discussion in part IV. Conversely, he underdevelops the moral issues; they
seem not to weigh very heavily in his thinking. I propose to remedy this to the
extent limits of space permit.
Van den Haag argues five different issues on the constitutionality of the death
penalty, the first of which rests on the text of the Fifth Amendment in the Bill of
Rights (1791). Since "due process of law" is mentioned there in connection with
lawful deprivation of "life, limb, or liberty," he concludes that "the Constitution
. . . authorizes the death penalty." But this is triply wrong.
First, the text in question does not authorize the death penalty; instead, it pres-
ents us with a conditional proposition: If life is to be taken as a punishment, then
it must be done with due process of law. In effect, this text presents the government
with a choice: Either repeal the death penalty or carry it out according to the
requirements of due process. As for any "authorization" of the death penalty, or
any other punishment, that depends on the exercise of legislative power within the
constraints of the Constitution. As for this mention of the death penalty in the Fifth
Amendment, I agree that it shows that the Framers did not consider the possibility
that there might be an inconsistency between permitting this mode of punishment
under the constraint of due process and any of the other provisions of the Bill of
Rights. In any case, it is essential to realize that this conditional proposition is
consistent with the rejection of the death penalty (in standard logic, the truth of a
conditional neither depends upon nor implies accepting the antecedent).
Second, van den Haag passes over the crucial question whether our current
procedures for imposing the death penalty really do satisfy the requirements of due
457
process. I take his silence on the point to imply that he has no qualms here. Well,
I do, and I invited him and others who would agree with him to read carefully the
essay by Stephen Bright reprinted earlier in this book (chapter 22), as well as other
evidence in the same vein.1 To be sure, due process of law is a complex and
contested concept, and reasonable people can disagree over its requirements. For-
mer Supreme Court Justice Harry Blackmun (see pp. 242-43) is not the only erst-
while supporter of the death penalty in America who has abandoned hope that "the
machinery of death'' can be operated according to the requirements of due process
of law.2
Finally, by parity of reasoning to van den Haag's own argument, if a state
legislature were to enact corporal punishments of extreme cruelty, say cutting off
the hand of a thief after his third felony conviction, the legislature could count on
the reference to deprivation of "limb" in this clause of the Fifth Amendment to
enable such a punishment to pass the Supreme Court's scrutiny—so long as the
maiming were done with "due process of law." Are we seriously to believe that
the Court would endorse such reasoning? I cannot; nothing in the Fifth Amendment
precludes the Court from relying on the Eighth Amendment, prohibiting "cruel
and unusual punishments," to rule out as unconstitutional any punishments that
maim. The same is true of punishments that kill.
Van den Haag next attacks the argument that the Eighth Amendment prohibition
against "cruel and unusual punishments" undermines the legitimacy of the death
penalty in our day, even if it did not do so when the amendment was passed,
because the clause must be interpreted (in the language of the Court's ruling in
Trap v. Dulles [1958]) according to "evolving standards of decency." He dismisses
this judicial language as ' 'paradoxical'' if used to interpret the Constitution in order
to repeal punishments having statutory authority, since it would make the Consti-
tution as written "superfluous." Van den Haag seems to think Trap was nonethe-
less correctly decided because the punishment ruled out by the Court in that case
was "expatriation, a punishment not specifically authorized by the Constitution."
But the Eighth Amendment nowhere mentions (and certainly doesn't "authorize")
capital punishment, either.
The issue here is twofold: how to interpret the "cruel and unusual punishment"
clause of that amendment, and how to apply that interpretation to the death penalty
in light of the relevant facts. As the ratification discussions in 1789 show,3 it was
even then anticipated that at some future date this language might plausibly be
used to strike down the death penalty. Nothing in either the Fifth or the Eighth
Amendments prohibits the Supreme Court from concluding that two hundred years
of experience with capital punishment reveals that it is, after all, cruel and unusual,
that its administration makes a mockery of due process of law, and that it also
violates "the equal protection of the law" (Fourteenth Amendment).
In this regard it is important to notice that van den Haag mentions in passing
(though without implying his approval) that the Supreme Court has declared the
death penalty for rape (in Coker v. Georgia [1977]) and the mandatory death pen-
alty for murder (in Woodson v. North Carolina [1976]) to be in violation of the
Eighth Amendment. Consistent with his prior argument here, he must reject the
A Reply to van den Haag 459
legitimacy of these rulings. On his view, any legislature that wants to have the
death penalty for rape is constitutionally "authorized" to do so, whether or not it
is "disproportionate" to the crime. And the same is true of any other crime—
armed robbery, kidnapping, treason, espionage, arson, train robbery, desecration of
a grave—each of them punishable by death earlier in this century in one or another
American jurisdiction. But by van den Haag's reasoning, since disproportionality
is nowhere mentioned in the Eighth Amendment (having been invented by the
Supreme Court in Weems v. United States [1910] as an appropriate interpretive
principle to explain what a "cruel and unusual punishment" is), he must infer that
courts have no authority to invoke disproportionality as a ground for declaring any
penalties unconstitutional. Thus, he implicitly rejects the Supreme Court's authority
to nullify the death penalty for murder by means of an argument that prevents the
Court from applying the Eighth Amendment to invalidate any penalty, so long as
that penalty is carried out by "due process of law" and was tolerated by the
Framers.
Van den Haag next addresses the objection that the death penalty as administered
is too capricious to be tolerated on constitutional grounds. (As his essay preceded
the Court's decision in McCleskey v. Kemp by two years, he had no opportunity
to mention that this decision supports his own views.) He replies in two steps:
First, he endorses the Supreme Court's decision in Gregg that the post-Furman
statutory reforms have eliminated whatever caprice infected the administration of
pre-Furman death penalties. This judgment simply will not withstand scrutiny. The
good-faith hopes of the Gregg majority in 1976 (especially evident in the concur-
ring opinion by Justice White) have simply not been borne out in practice in the
two decades since then. No serious and informed student of the administration of
the death penalty believes these statutes have so far accomplished more than cos-
metic reforms, however well-intentioned they may have been when enacted.4
The next objection van den Haag raises is that unless we are to believe the
administration of the death penalty today is more capricious than it was in the
previous century, its capriciousness today fails to show any constitutionally relevant
defect. This is a bad argument because it ignores the holding in Furman, which
(as I pointed out in the preface to Part IV) was based above all on the capricious,
arbitrary, and discriminatory administration of the death penalty of that day. Unless
there is less—indeed, little or no—caprice in the death penalty as administered
today, in contrast to what there was when Furman was decided, the post-Furman
statutes ought to be invalidated by the reasoning that prevailed in Furman. One
way around this, of course, is to argue that Furman was wrongly decided in the
first place and ought to be overruled—an argument I am sure van den Haag would
want to make. The fact that the Supreme Court has so far failed to reverse its ruling
in Gregg, or to hold the states on a short tether where the death penalty is con-
cerned, tells us more about the ideology and politics of the majority of the Court
since 1975 than it does about the constitutionality of the death penalty.
Van den Haag devotes two paragraphs to attacking the claim that racial discrim-
ination in administering the death penalty establishes that penalty's unconstitution-
ality. (Subsequent to his essay, David Baldus and his two coauthors published
Equal Justice and the Death Penalty: A Legal and Empirical Analysis [1990],
amply establishing just such discrimination.) Van den Haag concedes that there is
some racial discrimination in the way this penalty is administered. The importance
of this concession is not to be underestimated; few defenders of the death penalty
today are willing to concede as much. Van den Haag probably attaches little weight
to it because he probably would also concede that the whole criminal justice system
is tilted slightly against nonwhites, thus reducing to relative insignificance whatever
racial discrimination the death penalty involves. He insists that the remedy is not
to abolish the death penalty but to abolish the discrimination (which, he adds, favor
murderers of blacks and therefore favors blacks over whites, since most black
murder victims are killed by blacks). When this is taken as an abstract proposition,
one must agree with van den Haag: Since capital statutes as they are written do
not discriminate on racial grounds, they ought not to be repealed just because they
are administered with discriminatory results.
But this remedy of nondiscrimination, which van den Haag so easily proposes,
simply flies in the face of everything we know about the history of the death penalty
in this nation, and especially in the South. Are we seriously to think that in Texas
or Alabama or South Carolina (or even outside the South, in California, Illinois,
or New York) prosecutors and trial juries will remedy their history of racial dis-
crimination by meting out death penalties regardless of the race of the victim or
the offender? No, we are not. (See the sobering story told at length by James W.
Marquart and his two coauthors in their book, The Rope, The Chair, and the Nee-
dle: Capital Punishment in Texas, 1923-1990 [1994].)5 Van den Haag's argument
is simply beside the point; it is a frivolous appeal to an abstract possibility that
two centuries of experience tell us will not be put into practice, not in our lifetimes
and not in those of our children or their children. If we really want to improve on
the rough justice of our current practices involving the death penalty, the only way
to do so is to abolish it and sentence all convicted murderers to prison, whatever
their race and the race of their victim(s). No doubt inequities will remain, but their
magnitude will have been dramatically reduced.
Van den Haag's final and lengthiest constitutional consideration takes up pro-
portionality review. A year after his essay was published, the Supreme Court ruled
in Pulley v. Harris (1984) as he would have wished, rejecting the argument to
make proportionality review a constitutional requirement in capital cases. However,
nowhere in his discussion does he address the equal protection clause of the Four-
teenth Amendment and what relevance it may have, although that ought to be his
chief, if not his sole, concern here. Instead, he invites us to consider which is
worse—giving some murderers their just deserts (a death penalty) even when we
do not give it to all murderers, or giving it to none because we cannot give it to
all. Van den Haag favors, he says, justice over equality if we cannot have both.
Again, taken abstractly, his position here is plausible.
But, also once again, why take the matter so abstractly? We have ample em-
pirical evidence, based on actual research (some of it presented earlier in this book,
especially in parts V and VI) on prosecutorial decision making, the deliberations
of capital juries, and the conduct of clemency hearings in capital cases, to believe
that the disproportionality in sentencing is not the result of a random "lottery" or

of mere "chance" (van den Haag's favorite explanatory factors). Rather, it is due
to illegitimate factors of race, class, and social policy. (Stephen Nathanson has
discussed this point with some care; see Nathanson 1987.) This is why the decision
to execute a given capital offender is vulnerable to criticism on equal protection
grounds.
In another place, van den Haag and I debated the question, Can any legal pun-
ishments of the guilty be unjust to them? As might be expected, he argued the
negative and I argued the affirmative (see van den Haag 1987 and Bedau 1987c).
Since part of what I said there is relevant to the present issue, I will quote from
that essay:
Once it is known that the jurisdiction's sentencing practices are producing disparities,
and these disparities are based on irrelevant factors such as gender or race, then it is
known that a social practice (i.e., discretionary sentencing) is producing inequities
owing to impermissible causes—factors that sentencers are not entitled to consider in
justifying the disparate exercise of their sentencing discretion. Whatever the mecha-
nisms through which these causes (e.g., unconscious racism) affect social practices,
the result is not unlike the paradigm of injustice in which guilty parties are victimized
by punishments determined by factors irrelevant either to their culpability or to the
unlawful harm they have caused. In the case of unconscious racism, as in the previous
cases, the offender has a right that irrelevant factors not determine his sentence. But,
the sentencing practice that imposes the heavier sentence on Smith demonstrably
violates this right, quite apart from whether there is any evidence that the sentence!
intentionally discriminated against Smith. Such sentencing practices do not violate
Smith's right to the lesser sentence, for he has no such right. Instead, these practices
violate Smith's right not to be sentenced one way rather than another owing to ad-
ventitious factors that bear no relation to his guilt. This is why the heavier sentence
is an injustice to him.
The point underlying this conclusion is simple. Injustice in punishment, which for
our purposes is injustice in sentencing, is an injustice to the guilty offender only when
the sentencing disparities are explained by factors that have nothing to do with the
desert of the offender. Clearly, sentence disparities based on the gender, race, color,
or nationality of the offender, as well as the arbitrary outcomes of a fair lottery, are
irrelevant to the offender's desert. Every guilty offender has a right that his sentence
not be determined by factors irrelevant to his desert. The fact that some sentences are
based on such criteria is merely another variation of the general theme that arbitrary
or unfair procedures, which produce irrelevant grounds for exercising sentencing dis-
cretion, yield an unjust result, quite apart from whatever may be said about the justice
of the result from some other perspective. (Bedau 1987c: 1429-30)
II
With constitutional issues disposed of, van den Haag addresses deterrence and the
empirical research on which judgments of deterrence are and ought to be made.
Oddly, he says nothing explicit about incapacitation, although the special incapa-
citative effects of the death penalty are usually touted by those of its defenders
who attach importance to deterrence. (Perhaps, following the bad practice of many
criminologists, he thinks of executions as "special deterrence"; see my objections
on p. 128.) He concludes that the results of all the empirical research are "incon-
clusive," and so he is inclined to advise partisans on each side of the death penalty
debate to distrust reliance on research of this sort. This is a minimalist interpretation
of the evidence if ever there was one, since it wrongly encourages the inexperienced
student of this subject to think that the empirical pros and cons about the special
deterrent effects of the death penalty are at a standoff. Van den Haag and others
who support the death penalty on deterrent grounds need to ponder the essay in
this book by William C. Bailey and Ruth D. Peterson (chapter 9) to see just how
completely without foundation is any belief in the deterrent efficacy of the death
penalty in the United States during the past half century.
Van den Haag then insists that despite the lack of empirical evidence he still
believes the death penalty is a better deterrent. Why? "[B]ecause people fear death
more than anything else." Perhaps they would say they do, if they were asked to
answer the question, Which do you fear more, a death penalty or life in prison?
But armed robbers, gangland hit men, kids in cars hell-bent on drive-by shootings,
and other persons really interested in murdering someone are not thinking about
that question. They are thinking instead about this question: "What's the best way
for me to commit the crime and not get caught?" Van den Haag also argues that
the death penalty must be a better deterrent because death row convicts would
rather have their sentences commuted to life in prison. This preference tends to
show that life imprisonment is believed to be a less severe punishment than death.
It does not show that death is a better deterrent—unless you accept as an axiom
that the more severe a punishment is thought to be, the better a deterrent it is. The
truth of that belief matters not at all if rational people will be deterred from murder
as well by a long prison sentence as by a death sentence.
Van den Haag concedes that many murderers are undeterrable but adds: "Even
if only some murders were, or could be, deterred by capital punishment, it would
be worthwhile." Many agree with him (though they might not, if there were to
read the critique by David Conway; see Conway 1974). But one must ask, What
cost are you prepared to pay to gain this elusive extra deterrence? The dollar costs,
as Richard Dieter has shown (see chapter 29), are mounting rapidly, with no end
in sight. Quite apart from these costs are the moral costs, chief of which is the
great risk of executing the innocent (I will return to this later).
Before turning to his third category of issues, van den Haag addresses the rel-
ative costs of execution versus imprisonment. He argues that imprisonment is the
more costly of the two and that, even if it weren't we should pay the extra cost of
justice—which involves putting to death all who are sentenced to death, preferably
with more dispatch than we currently do. We all should agree with him about
paying what justice costs, but it remains to be shown that executing prisoners is
what justice requires (an issue to which I will return in the following). And on the
empirical question of the relative costs, the best current information and research,
summarized by Dieter, suggest van den Haag is simply wrong—just as he is wrong

in claiming that it is primarily the postconviction appeals that run up the economic
costs of capital punishment.
Throughout his discussion of deterrence, van den Haag fails to address a crucial
question: If the death penalty is to be defended on grounds of its superior deterrence
(or incapacitation), what stops us from defending even more savage penalties if
they prove (or seem likely to prove) to be an even better deterrent than the death
penalty as currently used? Later in his essay, he dismisses torture on the subjective
ground that it is "repulsive to us." Well, it is not repulsive to torturers, and to
them van den Haag evidently has nothing to say except to express his personal
disapproval. It's of no use to his argument that everyone agrees the Constitution
prohibits such "cruel and unusual punishments" as boiling in oil or crucifixion or
burning at the stake. He has to explain, consistent with his endorsement of the
importance of extra deterrence, how and why he respects the moral basis of the
constitutional prohibition. He fails to do that; his ethical subjectivism prevents him
from doing so. Like every other defender of the death penalty on deterrent grounds,
van den Haag has nursed an asp to his bosom that will destroy whatever limits he
thinks might be morally appropriate on cruel punishments—limits that in any case
he can treat as nothing more than collective subjective preferences.
I complete my criticism of van den Haag's view on deterrence by responding
to his claim that I and other abolitionists who oppose the death penalty on principle
would evidently tolerate the murder of hundreds rather than execute any convicted
murderers even if we knew that by doing so we could have prevented those murders
by the extra deterrence the death penalty provides. I cannot speak for the others
whom van den Haag mentions in this connection (Charles Black Jr., Ramsey Clark,
and Henry Schwarzschild), though I am delighted to be in their company, here or
anywhere. But speaking only for myself, I would point out two things.
First, my unwillingness to execute (or to have the state hire someone to exe-
cute) a convicted murderer is not the same as someone else's decision to commit
murder. Neither is it in any sense the cause of such a decision. My refusal to
authorize killing the guilty is not equivalent to my authorizing the death of the
innocent. So my refusal to authorize executions does not make me responsible
for murder, even if those executions would have deterred murderers that impris-
onment would not.
Second, as is evident from contemporary philosophical discussion, it is ex-
tremely difficult to resist the lure of torture, murder, and other dark deeds when it
can be argued that without such acts thousands, or millions, of innocents will surely
die.6 Where the death penalty today is concerned, however, any version of this
dilemma is so conjectural that worrying about it is as implausible as worrying about
sharks on dry land. Van den Haag is right that I oppose the death penalty in
principle and without exceptions; he is wrong in implying that I would tolerate
with equanimity the deaths of innocents simply to avoid lawful execution of one
who is guilty. I favor abolition, not least because I am confident that zero deterrence
would be lost.
III
In the final and most important (but briefest and least coherent) part of his argu-
ment, van den Haag raises eight scattered issues collected under the heading of the
morality of the death penalty. On the first of these, miscarriages of justice, he
concedes that in the long run the death penalty "lead[s] to the execution of some
innocents." This is another important concession, and he repeated it a few years
later (1986:1664). But these losses are rare and worth it, he argues, because of the
offsetting advantages that only the death penalty provides—at which point he re-
cycles his belief in the deterrent superiority of the death penalty. As for his analogy
(we tolerate high-speed highways despite our knowledge that they increase traffic
deaths), all one can say is that there is no analogy between a morally defensible
practice in which lethal accidents do occur that take statistical lives and a morally
dubious practice in which lethal events are designed for particular individuals in
the mistaken belief that they deserve it.
Van den Haag turns next to the role of "vengeance." Insofar as his interest in
this concept arises from its role in Judeo-Christian religious morality, I direct the
interested reader to the earlier debate between H. Wayne House and John Howard
Yoder (as well as to their book, The Death Penalty Debate [1991], where ven-
geance is a major theme; see also the scholarly monograph by Marvin Henberg,
Retribution: Evil for Evil in Ethics, Law, and Literature [1990]). I am troubled by
van den Haag's endorsement of vengeance as a legitimate "motive" for the death
penalty, even if not its real "purpose." Insofar as vengeance is the motive, does
he want us to believe that only supporters of the death penalty can act from this
motive? Or that only they are entitled to act from it? Neither is plausible. That to
one side, vengeance is too eruptive and violent an emotion to encourage in our-
selves and others. It cannot be confined and channeled to tolerate, much less sup-
port, due process of law in punishment, and is likely to spill over into private
violence. However, as van den Haag rightly notes, subjective "motives" such as
vengeance are not what is at issue in evaluating punitive policy; it is the objective
"purposes" that govern the discussion. So, asking us to tolerate vengeance as a
legitimate motive for the death penalty is really a red herring, and a dangerous one.
Van den Haag rebukes Christian religious leaders who oppose the death penalty,
reminding them that "there is no biblical warrant for their opposition." (Again, I
invite the interested reader to review the debate between House and Yoder.) How-
ever, even if van den Haag is right about how to read and interpret the Bible, all
he has done is put in question the legitimacy of professing Christians opposing the
death penalty on narrowly biblical (constructing "biblical" to mean "literally tex-
tual") grounds. This does nothing to undermine any nonreligious moral arguments
against the death penalty, which Jews and Christians are as entitled to advance as
well as anyone else.
Van den Haag next tackles the concept and role of "human dignity" and denies
that there is any mileage for abolitionists to be gained by invoking this value. He
adds that "no one has explained why capital punishment degrades" human dignity,
and he implies that no one can. In an essay published some years after his and
designed to explain the idea of the death penalty as a violation of human dignity,
I began by using the four principles Justice Brennan introduced in his concurring
opinion in Furman (recall chapter 12) in order to explain why the death penalty
was an affront to human dignity and thus in violation of the Eighth Amendment's
prohibition of *'cruel and unusual punishments." The essential part of my argu-
ment, taken out of the context of a rather long discussion, was this:
Let us reformulate Brennan's four principles in a more uniform manner that empha-
sizes their connection to human dignity. Taking them in the order in which he men-
tions them, this is what we get: First, it is an affront to the dignity of a person to be
forced to undergo catastrophic harm at the hands of another when, before the harm
is imposed, the former is entirely at the mercy of the latter, as is always the case with
legal punishment. Second, it offends the dignity of a person who is punished accord-
ing to the will of a punisher free to pick and choose arbitrarily among offenders so
that only a few are punished very severely when all deserve the same severe punish-
ment if any do. Third, it offends the dignity of a person to be subjected to a severe
punishment when society shows by its actual conduct in sentencing that it no longer
regards this severe punishment as appropriate. Finally, it is an affront to human dig-
nity to impose a very severe punishment on an offender when it is known that a less
severe punishment will achieve all the purposes it is appropriate to try to achieve by
punishing anyone in any manner whatsoever.
These reformulations link the concept of human dignity explicitly with the concept
of "cruel and unusual punishments" via the notion of appropriate limits to the per-
missible severity of punishments. This is easily seen if we recall several of the con-
stitutive elements of human dignity discussed earlier: Respect for the autonomy of
rational creatures forbids its needless curtailment in the course of deserved punish-
ment. Respect for the equal worth of persons forbids inequitable punishments of
convicted offenders equally guilty. The fundamental equal rights of persons, including
convicted offenders, precludes treating some offenders as if they had ceased to be
persons. (Bedau 1992a:160-61)
Van den Haag turns to the law of retaliation, lex talionis, only to reject its
authority. This is another important concession because it deprives him of arguing
from this general principle of retaliatory punishments to the special case of the
death penalty for murder, in which we take "a life for a life." (Of course, his
disavowal of lex talionis also spares him the embarrassment of trying to cope with
the inapplicability and absurdity of this law for a wide range of crimes, just as it
frees him to defend the death penalty, should he wish to, for crimes that include
no murder.) Instead, he argues that "[p]unishment, ultimately, is a vindication of
the moral and legal order of society." No doubt it ought to be, although it behooves
those who would defend punishment in these terms to convince us that the current
moral and legal order is sufficiently just to warrant our punitive practices (Jeffrey
Reiman's retributive argument against the death penalty rests primarily on the struc-
tural injustices in our society; see Reiman 1985 and 1988). But of course one can
grant van den Haag's claim about the nature or ultimate purpose of state punish-
ment without for one moment suggesting that law and moral order can be vin-
dicated only or best by the use of death penalties or any other unnecessary
punishment. This is precisely what I would deny and what van den Haag apparently
believes and ought to defend. But he doesn't. (Others, such as Walter Berns, have
tried to do so at some length; see his book For Capital Punishment: Crime and
the Morality of the Death Penalty [1979].)
Before turning to the next of van den Haag's moral considerations, we should
notice how the fundamental principle of much of his overall argument is badly
neglected. He makes it clear in passing that murderers deserve to die, and that the
principal justification of the death penalty injustice. He seems to believe that desert
tells us whom to punish (guilty criminals), what they deserve as their punishment
(murderers deserve death), and why this is what they deserve (justice). Yet his
position on these issues is incomplete and unsatisfactory, for at least two reasons.
First, he does not defend a mandatory death penalty; in principle that ought to
prevent the arbitrariness, which he concedes, of our current discretionary death
penalty, just as it ought to increase deterrence and retribution. So why doesn't he
support it? Because (as he says in a footnote) a mandatory death penalty "risks
jury cancellations." Historically, there is evidence to support this worry, but it is
a silly reason for him to endorse, unless he believes that the future death penalties
likely to be canceled by this route are so many that they vastly exceed in number
the future death penalties not meted out under the current discretionary system,
with the result that a return to mandatory death penalties would achieve less de-
terrence and retribution than the current system. Why van den Haag would believe
this, when he believes the public overwhelmingly favors the death penalty and
when he knows that opponents of the death penalty are routinely excluded from
capital trial juries, beats me. And how our current arbitrary and discretionary death
penalty system ' 'vindicates the moral and legal order'' in a manner of which we
can be proud remains a mystery.
Second, what are we to make of his fundamental proposition that murderers
deserve the death penalty? Is it supposed to be a necessary moral truth that anyone
can see to be true simply by understanding the concepts used to express it, an
analytic a priori proposition? I hope van den Haag would not take this route to
defend this proposition because it will be difficult to prevent turning it into a mere
prejudice. To avoid that, this proposition must be somehow established by deri-
vation from more fundamental norms. What are they? Since he has rejected lex
talionis—the obvious if unsatisfactory answer—and supplied no alternative, we are
left to guess. It is interesting to note that in the face of a resurgent approval among
philosophers during the past two decades for a retributive justification of punish-
ment, only a few have gone on to endorse a purely or primarily retributive defense
of capital punishment.7
The next target of his critique is the ideal of "the sanctity of life," which some
abolitionists (notably, Justice Brennan) insist the death penalty violates. He does
not try to explain this ideal or why one might think it is inconsistent with the death
penalty. Instead, he recycles constitutional considerations, purporting to show that
the Framers, who accepted this ideal, did so in a manner that did not rule out
capital punishment. But none of this really speaks to the moral issues involved.
For my part, I would put this ideal to one side in the present discussion because
the sanctity of life (all life? only human life? only innocent human life?) is not a
secular concept but a religious one—unlike the right to life, which is a secular
concept. For some reason, van den Haag has virtually nothing to say about this
idea (but see my penultimate paragraph below). Whatever role the sanctity of life
properly plays in a religiously based morality, it really cannot be used as a building
block for a secular morality. Nor can it be properly used to evaluate from a secular
perspective such controversial issues as suicide, euthanasia, abortion, war—or the
death penalty. Since van den Haag does not discuss the bearing of our right to life
on the morality of the death penalty, I will excuse myself from doing so here.8
Van den Haag's penultimate barb is directed at those abolitionists who think
that executing murderers "legitimizes murder by doing to the murderer what he
did to his victim." He rejects this objection because it confuses the legitimate
killing of convicted murderers with the illegitimate killing by murderers. This
strikes me as completely begging the question. The point of the objection he wishes
to refute is that where the legitimacy of killing lies in the eye of the killer, we
must be very careful what killings we are prepared to permit.
Consider by contrast for a moment the idea of killing in self-defense. Opponents
of the death penalty do not condemn such killings, arguing that killing in self-
defense legitimates murder. (Notice, by the way, that van den Haag nowhere claims
that when society uses the death penalty, it does so in self-defense. Perhaps he
would grant that this is an implausible claim for defenders of the death penalty to
advance, because nowhere in Europe today, or in Michigan for a century and a
half, to cite but one local example, has social defense required reliance on the death
penalty.) The reason abolitionists believe the death penalty legitimates murder in
the eyes of some is that the grounds on which the government acts in deciding
whom to prosecute for a death sentence, whom to convict of capital murder, whom
to sentence to death, whom to refuse clemency, looks suspiciously vindictive, ar-
bitrary, and illegitimate. This invites some to reason as follows: "If the government
is permitted to kill for its reasons, then I should be permitted to kill for mine."
Van den Haag's argument is not with abolitionists, who do not endorse this rea-
soning, but with whoever does reason in this manner. Simply declaring that murder
is wrong and the death penalty legitimate is hardly sufficient.
Finally, van den Haag turns to the question whether the death penalty is "too
severe" and concludes that it is not. Yes, it is "irreparable"—but so is murder.
No, it is not "repulsive"—since we all must die someday. And he ends by in-
forming us how readily he would put to death a Hitler, a Stalin, or "anyone who
does what they did, albeit on a smaller scale." But whether the death penalty is
too severe depends on what one thinks the purpose and rationale of its severity is.
Whatever that purpose or rationale, I think it is unnecessary for deterrence or
incapacitation, arbitrary and discriminatory in the retribution it inflicts, and
therefore an affront to our civilized sensibilities.
As to whether the death penalty is repulsive, I suggest that van den Haag inform
himself more vividly about what happens during a typical electrocution—a pretty
ugly affair at best, as Deborah Denno has shown in considerable detail (Denno
1994a, 1996) and as demonstrated by the repulsive 1990 electrocution of Jesse
Tafero in Florida (von Drehle 1995:409). I would grant, on the strength of Susan
Blaustein's witness (chapter 28), that the physical act of execution by lethal injec-
tion is not repulsive typically or necessarily—no doubt, a widely shared belief and
a significant factor in explaining the popularity of lethal injection with American
legislatures during the past twenty years. But this emphasis on the details of par-
ticular executions or on techniques for carrying out the death penalty obscures what
is arguably repulsive about executions as such: It is not only that the prisoner dies,
or dies in agony, or dies with ugly disfigurement, but that the lethal act itself is
the result of calculated planning by the impersonal state in which the state's over-
whelming power is on display against the helplessness of the prisoner (a point I
stressed earlier in chapter 17).
When van den Haag reminds us that death is inevitable in the nature of things,
he does not make a very persuasive point. Human disappointment, pain, loneliness,
bereavement, and other forms of misery and suffering are part of the human con-
dition and virtually inevitable for each of us. Yet is that a good reason for com-
placency in their face if it is within our power to remedy or mitigate, even if only
briefly or slightly, these inevitabilities? Van den Haag does not address this ques-
tion.
As for Hitler and Stalin, they are often the trump card used by modern defenders
of the death penalty who cannot believe that anyone really would oppose all ex-
ecutions. The trouble is that appealing to Hitler and Stalin sheds no light on whether
to execute all or some or none of the more than three thousand prisoners on Amer-
ican death rows today. For myself, I would be glad to make an exception to my
absolute rejection of the death penalty by permitting van den Haag to destroy
tyrants such as these if he would give me the lives of those actually under sentence
of death today, whose crimes are pathetically insignificant if measured against
genocide, aggressive warfare, and the other crimes against humanity of which these
dictators and their henchmen were guilty.
Van den Haag ends his essay by making two points with which abolitionists
ought to agree—in part. First, he insists that the national debate over the death
penalty is important because it involves "a genuine ethical issue." He is right, but
what is this issue as he sees it? It is whether "the right to life" extends to all
humans and cannot ever be forfeited. He thinks it can be; I think it cannot, and
elsewhere I have tried to explain why (Bedau 1987b:55-59). Even if I am right, I
suggest that this is not the important ethical issue in the debate. The paramount
ethical issue posed by the death penalty is this: Whether or not everyone has an
unforfeitable right to life, do we do the right thing in authorizing killing some
criminals when we know there is an adequate alternative punishment (imprison-
ment), or do we do the right thing when we refuse to kill any, no matter how
guilty they are? The issue, in short, is not the right to life; it is the right to kill
Second, van den Haag insists that we are rightly concerned about the death
penalty because it has important "symbolic significance," a significance far beyond
its practical import. Again, this is correct. For him, however, this symbolic signif-
icance lies in its "affirmation of the humanity of both victim and murderer." Van
den Haag here has the support of no less a philosopher than Immanuel Kant, though
he does not mention this. I, on the other hand, think the whole idea is bizarre. The
very thought that I affirm the humanity of a murderer by treating him more or less
as he treated his innocent and undeserving victim would be funny were it not so
momentous. For me, the death penalty symbolizes unlimited impersonal power over
the individual, with dramatically final and irreversible results whenever it is ex-
pressed. As long as we choose to hang this moral albatross around our necks, I
see no way for us to enjoy, much less help the rest of the world to enjoy, the
benefits of a truly human community.
Notes
1. See, e.g., Greenberg 1982,1986; Weisberg 1983; Radelet and Pierce 1985; Goodpaster
1983; Brennan 1986; Marshall 1986; Tabak and Lane 1989; Burt 1987; Amsterdam 1988;
V. Berger 1988.
2. This was the chief point of Charles Black's objection to the death penalty; see Black,
1981.
3. See R. Berger 1982:45-46 and my review of his book, Bedau 1983:1159-60.
4. Justice White supported the decision in Gregg v. Georgia by arguing that the Georgia
legislature ' 'has made an effort'' to identify appropriate aggravating and mitigating circum-
stances relevant to the choice of sentence in capital cases (pp. 221, 222); he added that
"[t]here is reason to expect that Georgia's current system would escape the infirmities which
invalidated its previous system" (p. 222); and so on regarding prosecutorial discretion in
indictments (pp. 224-25) and proportionality review by the Georgia Supreme Court (pp.
223-24). What Justice White has not done since he wrote these words in 1976 is to revisit
in appropriate detail the administration of the death penalty in Georgia and elsewhere, to
see how the promise of compliance with the mandate of Furman—which he supported—
has not been kept.
5. See also my review of this book, Bedau 1997.
6. See, e.g., Glover 1977; Taurek 1977; Parfit 1978; Saunders 1988.
7. See Sorell 1987; Primoratz 1989; and the as yet unpublished volume by Michael
Davis, Justice in the Shadow of Death (1996). Retributivists who oppose the death penalty
include von Hirsch 1976; Murphy 1979; Pugsley 1981; and Reiman 1985, 1988.
8. As I mentioned previously p. 234 note 6, the contemporary philosophical discussion
of the right to life leaves much to be desired. My own discussions, beginning with Bedau
1967, are at best a starting point.
BIBLIOGRAPHY
Bibliographies
Subsequent to the bibliographies provided in earlier editions of The Death Penalty in Amer-
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TABLE OF CASES
Athens v. California, 406 U.S. 813 (1972)

Barefoot v. Estelle, 463 U.S. 880 (1983)
Blystone v. Pennsylvania, 494 U.S. 299 (1990)
Booth v. Maryland, 482 U.S. 496 (1987)
Boyde v. California, 494 U.S. 370 (1990)
Burger v. Kemp, 483 U.S. 776 (1987)
Callins v. Collins, 510 U.S.—(1994)
demons v. Mississippi, 494 U.S. 738 (1990)
Coker v. Georgia, 433 U.S. 584 (1977)
Coleman v. Thompson, 501 U.S. 722 (1991)
Crampton v. Ohio, 402 U.S. 183 (1971)
Eberhart v. Georgia, 433 U.S. 917 (1977)
Enmund v. Florida, 458 U.S. 782 (1982)
Felker v. Turpin,—U.S.—(1996)
Fiero v. Gomez, 865 Fed. Sup. 1387 (N.D. Cal. 1994), affirmed 9th Cir. 21
February 1996.
Ford v. Wainwright, 477 U.S. 399 (1986)
Furman v. Georgia, 408 U.S. 238 (1972)
Godfrey v. Georgia, 446 U.S. 420 (1980)
Gregg v. Georgia, 428 U.S. 153 (1976)
Herrera v. Collins, 506 U.S.—(1993)
Jurek v. Texas, 428 U.S. 262 (1976)
Lockett v. Ohio, 438 U.S. 586 (1978)
Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), 398 U.S. 262 (1970)
McCleskey v. Kemp, 481 U.S. 279 (1987)
McCleskey v. Zant, 499 U.S. 467 (1991)
McFarland v. Texas—U.S.—,114 S.Ct. 2568 (1994)
McGautha v. California, 402 U.S. 183 (1971)
Moore v. Dempsey, 261 U.S. 86 (1923)
Murray v. Giarrantano, 492 U.S. 1 (1989)
Payne v. Tennessee, 501 U.S. 808 (1991)
Penry v. Lynaugh, 492 U.S. 302 (1989)
Powell v. Alabama, 287 U.S. 45 (1932)
Pratt et al v. Attorney General of Jamaica 4 All E.R. 767 (PC).
Presnell v. Georgia, 439 U.S. 14 (1978)
Proffitt v. Florida, 428 U.S. 242 (1976)
Pulley v. Harris, 465 U.S. 37 (1984)
501
502 Table of Cases
Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970)

Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976)
Rudolph v. Alabama, 375 U.S. 889 (1963)
Simmons v. South Carolina,—U.S.—, 114 S.Ct. 2187 (1994)
Stanford v. Kentucky, 492 U.S. 361 (1989)
Spaziano v. Florida, 468 U.S. 447 (1984)
Strickland v. Washington, 466 U.S. 668 (1984)
Sumner v. Shuman, 483 U.S. 66 (1987)
league v. Lane, 489 U.S. 288 (1989)
Thompson v. Oklahoma, 487 U.S. 815 (1988)
Tison v. Arizona, 481 U.S. 137 (1987)
Trop v. Dulles, 356 U.S. 86 (1958)
Walton v. Arizona, 497 U.S. 639 (1990)
Weems v. United States, 211 U.S. 349 (1910)
Witherspoon v. Illinois, 391 U.S. 510 (1968)
Woodson v. North Carolina, 428 U.S. 280 (1976)
INDEX
Abbott, J., 371 Aggravated assault. See also Assault

Abolition rate of, Table 4-2
arguments for, 24, 189-95, 232-37, 429- volume of, Table 4-1
44, 457-69 Aggravating circumstances
arguments against, 24, 196-205, 415-28, defined by statutes, 26, 197, 203-4,
445-56 212
under international law, 246-47 used in capital sentencing, 239, 240
international trend, 33-34, Table 6-5 proposed in Model Penal Code, 204-5
by judicial review, 13, 185 Aikens v. California, 185
jurisdictions, foreign, Tables 6-1, 6-2, Aircraft hijacking (piracy)
6-3 as capital crime, 27, 196, 199, Table
jurisdictions, U.S., Table 1-2 2-2
homicide rates in, Tables 4-2, 4-4 public opinion on death penalty for, 104-
prison homicide in, 176-77 5, Table 7-1
by legislation, 8, 13 Alabama. See also specific counties
movement, 7-8, 411-12 age of eligibility for death penalty, Table
organizations, 411-12 2-3
by referenda, 13, 87 Capital Representation Resource Center,
Abolition of the Death Penalty in 311
International Law, 34 current capital statutes, 36
Abolitionists, 7, 129, 131 proposed revisions, 42
Abu-Jamal, M., v, 312 fees for defense counsel, 293
Adams, R., 349, 354-55 homicide rate, Tables 4-2, 4-4
Adultery, 418-19, 438-39 introduces jury sentencing discretion, 5
African Americans LWOP as alternative to death penalty,
arrested for murder, 28, 29 119
attitudes toward death penalty, 87, method of execution, Table 1-4
90 number of executions, Table 1-7
on death row, Table 5-1 prisoners on death row, Table 5-1
disproportionately sentenced to death, Alaska
249 abolishes death penalty, Table 1-2
as homicide victims, 28, Table 4-5 homicide rate, Tables 4-2, 4-4
interracial vs. intraracial homicide, proposed statutory changes regarding the
29 death penalty, 42
number of executed, Table 5-9 American Baptist Convention, 412
as offenders/victims of homicide, 28, American Bar Association (ABA), 279,
Table 4-7 287, 293, 405
population ratio to whites, 29 Criminal Justice Section, 310
public execution of, 386 American Civil Liberties Union (ACLU),
risk of death by homicide, 29 251
Age, of arrestees for murder, 28, 29 Capital Punishment Project, 412
503
504 Index
American Convention on Human Rights, Attempted killing, as capital offense, Table

247 2-2
American Law Institute (ALI). See Model Attitudes toward death penalty. See Public
Penal Code Opinion; see also specific crimes
American League to Abolish Capital Attorney (s). See Counsel, defense
Punishment, 411 "Automatic" appellate review. See Appeal,
American Orthopsychiatric Association, "automatic"
412 "Automatic" death sentence(s). See
American Society for the Abolition of Mandatory death penalty
Capital Punishment, 411
American Society of Criminology, 315 Bailey, W., ix, 130, 462
Among the Lowest of the Dead, 312 essay co-authored by, 135-61
Amnesty International, 33, 412 Baldus, D., 250, 459
Anger, 112 Baldus study, 254-55, 258, 260, 261-62,
Anti-Drug Abuse Act, 268 263, 265
Appellate review, 11-13. See also Banks, J., 346
Appeal(s) Baptists, 412
Appeal(s) Bar, capital defense. See Counsel, defense
"automatic", 11, 16, 19, 186, 197 Barefoot v. Estelle, 239
costs of, 317, 406, 407 Barr, W., 297
obstacles to, 240, 241, 243-44 Beccaria, C, 4, 143, 222, 453
time limits on, 356-57 Bedau, H., 154, 172, 313, 375, 450
Arizona essays by, 176-82, 223-37, 246-48,
abolishes death penalty, 8 457-69
Beeman, G., 346
age of eligibility for death penalty, Table
Beermann, A., 263, 273
2-3
Belinsky, A., ix
current capital statutes, 36
Bentham, J., 218
proposed revisions, 28
Berger, R., 187, 214-31
homicide rate, Tables 4-2, 4-4
Berger, V., ix
method of execution, Table 1-4
Berns, W., 466
number of executions, Table 1-7 Bethea, R., 386
prisoners on death row, Table 5-1 Bibb County, Ga., 278
restores death penalty, Table 1-2 Bible, 415-44
Arkansas, 27 Bible Belt, 21
current capital statutes, 36 Bienen, L., 313, 319-23
proposed revisions, 42 Bifurcated trial, 19, 334-35
homicide rate, Tables 4-2, 4-4 Bigelow, J., 348
method of execution, Table 1-4 Bill of Rights
number of executions, Table 1-7 U. S., 4, 13, 16, 183, 298, 299, 445,
prisoners on death row, Table 5-1 457. See also specific constitutional
race riot in Elaine, 13 amendments
Arson, as capital crime, Table 1-1, 104 Bishop, J., 145
Askew, R., 346 Black, C., 131, 446, 450, 463
Assassination Black Codes, 23
as capital offense, Table 2-2 Blackmun, H., 184, 242-43, 250, 263-64,
public opinion on death penalty for, 104 291, 358, 392, 399-400, 458
Assault, as capital offense, Table 1-1 Blaustein, S., 316, 468
Association of Government Attorneys in essay by, 387-400
Capital Litigation, 411 Blind Faith, 325
Index 505
Bloodsworth, K., 345, 350, 355 number of executions, Table 1-7

Blystone v. Pennsylvania, 240 prisoners on death row, Table 5-1
Bohm, R., 86-87 referendum, 199
Boiling in oil, 129, 463 Callins v. Collins, 243
Bombing, as capital offense, Table 1-1 Camus, A., 452
Bonsteel, J., 87 Canada, 33, Table 6-2
Booth v. Maryland, 240 Capital crime(s). See also specific crimes
Bowers, W., ix, 87, 314, 339 availability of data on, 28
Boyde v. California, 240 and deterrence research, 136
Brandley, C, 349, 350-51, 355 non-homicidal, 7, 27, 136, 186, 431,
Brennan, W., 16, 184, 185, 214, 227, 264, 459, Table 1-1
265, 299-300, 423, 452, 465 Capital Jury Project, 314, 333^3
text of judicial opinion by, 189-95 Capital punishment. See Capital Statutes;
Bright, S., 252, 458 Capital trials; Death Penalty; Death
essay by, 275-309 Sentence(s); Executions
Brown, A., 347 Capital Punishment: The Inevitability of
Brown, J. (Shabaka), 347 Caprice and Mistake, 200, 446
Brown, J., Ill Capital Punishment and the Judicial
Brown, J. K., 349 Process, 239
Brown, J. Kirk, 371, 375 Capital sentencing. See Death Sentence(s)
Brown, W., 348 Capital statutes. See also specific crimes
"brutalization" effect, 136, 145, 149, 153- and jurisdictions
54 as of 1965, Table 1-1
Bryan, R., 316 in colonial America, 3-4
essay by, 385-86 constitutionality of, 183-87, 189-213
"Buckle on the Death Belt," 23 current, 26-27, Tables 2-1, 2-2
Buergenthal, T., 247 discretionary, 5-6. See also Discretion
Bulletin of Justice Statistics (BJS), 26 mandatory. See Mandatory death penalty
Bundy, T., v, 87, 111 post-Furman, 186, 196, 201
Burger, W., 242 pre-Furman, Table 1-1
Burger v. Kemp, 240 proposed statutory revisions in 1994, 28,
Burglary, as capital crime, Table 1-1 42-54
Burning at the stake, 463 Capital trial(s). See also Counsel, defense;
Bush, G., 18,92, 110 Juries, capital trial
bifurcated (two-stage), 19, 186, 196,
Cabana, D., 317 334
Cain, 414 n.16, 430-31 cost, 407
Galas, J., 314 jury sentencing discretion, 5-6, 186,
California, vi, 17, 27, 402, 404 196-97, 202
age of eligibility for death penalty, Table jury instructions, 197, 334, 335, 341
2-3 procedure, 334-35
current capital statutes, 36 role of judge, 334
proposed revisions, 43 Carlson, N., 176
death penalty Carnal knowledge, as a capital crime,
constitutionality of, 199 Table 1-1
cost, 402, 407, 408 Carter, J., 110
homicide rate, Tables 4-2, 4-4 Cassell, P., 315
jury instructions in capital cases, 99 Catholic Peace Fellowship, 412
method of execution, 10, Table 1-4 Catholics, 452
506 Index
Center for the Study of Social and Political number of executions, Table 1-7
Change, 251 prisoners under death sentence, Table
Centurion Ministries, 352 5-1
Certiorari, writ of, 184, 256 Cook, P., 405
Chance, C, 352 Conrad, J., 412
Charles, E., 346 Constitution. See Bill of Rights; specific
Chattahoochee Jud. Dist., Ga., 23, 324 amendments
Chicago, 111., deterrence research in, 14 Convicts. See Prisoners.
Chicago Jury Project, 333 Conway, D., 462
China, 33 Cook, A., execution of, 394-97
Christian Coalition, 411 Cost of death penalty system. See Death
Church of Jesus Christ of Latter Day penalty
Saints, 411 Counsel, defense, 275-309
Clark, R., 422-23, 450, 463 availability of, 310-11
Clarke, H., 295 compensation of, 285
demons v. Mississippi, 240 court-appointed, 251-52
Clemency, executive, 18-19, Table 1-6 funding of, 284
attempt to obtain, 316, 361-83, 387 for indigent defendants, 19, 391, 403
constraints on exercise of, 120 ineffective assistance of, 239-40, 252,
rarity of, 358 279-92, 356
reasons for, 19, 363 states must provide for federal appeals,
Clinton, W. (Bill), 18, 111, 244 244
Cobb, P., 347 states must provide at trial, 275
Cohen, E., 394 volunteers needed, 300
Coker v. Georgia, 186, 249 Covalt, V., 362, 364, 367, 371, 372, 373,
text of Justice White's opinion in, 210- 374
13 Cox, R., 349
Coleman, R., 354, 357 Coyne, R., 239
Coleman v. Thompson, 241 Crampton v. Ohio, 184
Colorado Crime(s)
age of eligibility for death penalty, Table capital. See Capital crime(s)
2-3 decline(s) with age, 122
current capital statutes, 36 of passion, 450
proposed revisions, 43 rates of violent, Table 4-2
abolishes the death penalty, Table 1-2 volume of, against persons, Table 4-1
homicide rate, Tables 4-2, 4-4 prevention of, 127, 176
method of execution, Table 1-4 Criminal homicide. See Homicide;
number of executions, Table 1-7 Manslaughter; Murder
prisoners under death sentence, Table Crosby, R., 381
5-1 Croy, P., 349
restores death penalty, Table 1-2 Crucifixion, 129, 232, 463
Columbus, Ga., 280, 281, 287 Cruel and unusual punishment. See also
Commutation. See Clemency, executive Eighth amendment
Conley, F., 383 death penalty as, 16, 185, 187, 445
Connecticut and disproportionality, 210-12, 459
current capital statutes, 36 and evolving standards of decency, 189,
proposed revisions, 43 198-99, 207, 446
homicide rate, Tables 4-2, 4-4 and gas chamber, 10
method of execution, Table 1-4 historiography of clause, 221-24
Index 507
history of clause, 4, 183, 189, 198, 445 as disproportionate for crime, 239, 447-
and human dignity. See Human dignity 49
paradigm of, 189 and due process of law, 183
principles defining, 189-90 and equal justice, 448
strict interpretation of clause, 215-17 and equal protection of the laws, 183
Cruelty, as power relationship, 232-33 and ethical issues, 454, 468-69
Cuomo, M., 18, 124 in Europe, Tables 6-1, 6-2, 6-3, 6-4
as excessive for rape, 212
Dahmer, J., Ill as expiation, 436
Dangerousness, prediction of future, 174, as expression of moral indignation,
338-39, 377-78 194
Davis, K., 260 history of in U. S., 3-35
Dead Man Walking, 317 and imago dei, 423-24, 429-33
Death and inevitability of mistakes, 358-59
fear of, 450, 462 and international law, 33-34, 246-48
leading causes of, Table 4-3 as a "luxury," 404
homicide vs. suicide, Table 4-3 mandatory, 4, 18, 28, 458, 466
"death eligible" defendants. See Murderers lawful methods of carrying out, Table
Death and the Enlightenment, 222 1-4
Death at Midnight: The Confession of an minimum age of eligibility for, Table
Executioner, 317 2-3
"Death is different," 185, 201, 208, 249 nationalized by Congress, 27
"death of fairness," 242 not per se cruel and unusual punishment,
Death Penalties: The Supreme Court's 232
Obstacle Course, 187, 214 not per se unconstitutional, 201
Death penalty. See also Capital crimes; persons who favor. See Public opinion
Capital sentencing; Capital statutes; philosopher's views on, 414 nn. 19-21
Capital trials; Death sentences; as preventive of crime. See Deterrence;
Executions. See specific state and Incapacitation
national jurisdictions public knowledge about, 101-3
abolition of. See Abolition. public misperception of a "life"
administration of, 184, 185, 252, 458, sentence, 120-22
459 purposes of, 193-94, 200
alternatives to, 87, 89 n.22, 118-20 and racial bias. See Racial discrimination
arguments against, 429^4, 457-69 referenda to restore, 87-88, 89, 199
arguments for, 415-28, 445-56 as regional (southern) phenomenon, 21-
attitudes toward. See Public opinion 22
as capricious, 446 religious views on, 411-12, 415-44
in colonial America, 3-4 resource centers federally funded, 310,
constitutionality of, 15-16, 183-246, 311
445-49, 457. See also specific cases. retributive use of, 96, 194, 200, 423
cost of system, 19, 98, 317, 401-10, as ritual sacrifice, 432-33, 435-36
462-63 severity of, 453-54
as cruel and unusual punishment. See and sixth commandment, 424-26
Cruel and unusual punishment symbolic role of, 23-24, 86, 100
in current U.S. law, Tables 2-1, 2-2 as unconstitutional punishment, 189-95,
as a deterrent, 95-96, 135-61, 200. See 224-27, 232-37
also Deterrence; Executions uniqueness of, 191, 201
as denunciation of crime, 194, 200 utilitarian arguments on, 86, 100
508 Index
Death penalty (cont. ) for juveniles, 106, Tables 2-3, 5-2

worldwide status of, 33-34, Tables 6-1, mandatory. See Mandatory death penalty
6-2, 6-3, 6-4 of mentally retarded persons, 106
Death Penalty Debate, The, 412 methods of carrying out, Table 1-4
Death Penalty Information Center (DPIC), personal responsibility for, 341-42,
87, 317, 345, 401 See also Dieter, R. Tables 24-7, 24-8
Death Penalty in America, The, vi, 132 persons under, Fig. 1-2, Table 5-1, 199
Death Penalty in the Nineties, The, 239 prior criminal history of, Tables 10-2,
Death Penalty: A Debate, The, 412 11-1
Death row and race. See Race
average time served on, Table 5-4 risk of, 31-32
conditions on, 311-12, 392 statutory guidelines for, 202
cruelty of, 311-12 time served under, 14, Tables 1-5, 5-4
prisoners on by type of final disposition, Table 5-5
demography of, 30 as unusually severe, 190-91
federal, 13 for women, 106, Table 5-3
by jurisdiction, Table 5-6 Death Work: A Study of the Modern
rehabilitation on, 396 Execution Process, 317
suicide on, 32-33 Declaration of Independence, 453
Death Row Chaplain, 426 Defense counsel, compensation in capital
"Death Row, U.S.A.," 26 cases. See Counsel, defense
Death sentence(s). See also names of Dei Delitti e delle Pene, 4, 453
jurisdictions and individual capital Delaware
offenses abolishes death penalty, Table 1-2
alternative(s) to. See Imprisonment; age of eligibility for death penalty, Table
Prison 2-3
annual average number of, 32 current capital statutes, 36
appeal(s). See Appeals proposed revisions, 44
as arbitrary, 185, 192, 249, 252, 259, homicide rate, Tables 4-2, 4-4
278 method of execution, 11, Table 1-4
* 'automatic." See Mandatory death number of executions, Table 1-7
penalty prisoners on death row, Table 5-1
as capricious, 259 restores death penalty, Table 1-2
commutation of, 15, 18-19, Table 1-4 Democrats, 17
as cruel. See Cruel and unusual Denno, D., 467
punishment Desert, 21, 461, 466. See also Just deserts
as degrading, 452 Desertion in wartime, as capital offense,
delays in carrying out, 14-15 Table 1-1
as a deterrent. See Deterrence Deterrence, 127-61, 449-50, 461-62
discretionary. See Discretion celerity as factor, 137, 143-44, 153
discriminatory application, 249, 252 certainty as factor, 137, 140-43, 153
and discrimination. See Racial conceptual issues, 128-30
discrimination declining importance of, 21
as not disproportionate for murder, 201, defined, 127, 128
210 empirical issues, 130-31
infrequency of, 191-92, 193, 199 research on, 137-61
of innocent persons, 344-60 and execution publicity, 137, 144-48
invalidated by appeal in federal courts, general, 128, 135, 136
243 and intimidation, 433
Index 509
lack of evidence to support death 254-60, 458. See also Cruel and unusual
penalty, 143, 154, 200-1 punishment
marginal, 129, 135 Eisenberg, T., 336, 339
normative issues, 131-32 Ekdahl, L., 381
as purpose of punishment, 193, 200 Electric chair, 10, 390
of prison homicide, 132 Electrocution, 232, 467
severity as factor, 129, 137-40 constitutionality of, 183
special, 128, 136 Ellis, Jas., 404
theory of, 137, 153 Ellis, Jos., 403
Detroit News, 355 Ellsworth, P. G., 87, 333
Diamond, S., 333 essay co-authored by, 90-115
Dieter, R., ix, 87, 462. See also Death England, 5
Penalty Information Center use of executive clemency, 18
essays by, 116-26, 401-10 death penalty status, Table 6-2
Dignity. See Human dignity history of death penalty, 6
Dingerson, L., ix public executions, 315
Discretion Privy Council, 311
defined, 255 Enlightenment, Age of, 4, 222, 235
essential to criminal justice system, Enmund v. Florida, 239
258 Entzeroth, L., 239
guided, 104, 202, 208. See also Episcopal Church, 412
Aggravating circumstances; Mitigating Equal Justice and the Death Penalty:
circumstances A Legal and Empirical Analysis, 250,
jury. See Juries, capital trial 460
prosecutorial, 259-60, 313, 322-31 Equal protection of the laws, 13, 183,
Discretionary Justice, 260 184, 234, 256, 458, 460
Discrimination. See Racial discrimination Error
Disembowlment, 232 judicial. See Innocent persons
Disparities in sentencing. See Racial "harmless," 356
discrimination Eshelman, B., 426
District attorney (s). See Prosecutors Espionage
District of Columbia. See Washington, as capital offense, Table 1-1
D.C. executions for, 107
Dixon, J., 405 under federal law, Table 2-2
DNA tests, 355 Europe, death penalty in, 33, 187, Tables 6-
Douglas, W. 0., 184, 185, 251, 447-48 1, 6-2, 6-3, 6-4
"Dr. Death," 354 Evangelium Vitae, 412
Drake, H., 348 "evolving standards of decency." See
Drug trafficking Cruel and unusual punishment
as capital offense, 6, 27, 28 Execution(s). See also specific crimes and
public opinion on death penalty for, 106 jurisdictions
Due process of law, 13, 183, 184, 198, annual average, 32
234, 457-58 annual totals, Fig. 1-1, Table 1-3
Dukakis, M., 18, 92, 110 botched, 31
Dunkins, H., 276 brutalizing effect of, 129
constitutionality of methods. See specific
Eberheart v. Georgia, 186 methods
Ehrlich, L, 141-43, 449-50 estimated cost of, 405
Eighth Amendment, 4, 183, 185, 198, 207, decline in, 13-14, Fig. 1-1, Table 1-3
510 Index
Execution(s) (cont. ) Federal Bureau of Investigation (FBI), 26,

description of, 396-97 138
deterrent effect of. See Deterrence Federal death penalty. See U.S. federal
eye-witness to, 315-17, 396-97 government
homicide ratio, 31-32 Federal Death Penalty Act, 7
incapacitative effect of. See Federalism, 201, 242
Incapacitation Federalist, 220
infrequency of, 191-92, 193 Feinstein, D., 121
of the innocent. See Innocent persons Felker v. Turpin, 241
of the insane, 240 Felony-murder
judicial moratorium on, 134 as capital crime, 6, 30
by jurisdiction, Table 5-7 as aggravating factor in capital
in rank order, Table 1-7 sentencing, 204
of juveniles, 30, 240, Table 5-8 public attitude toward death penalty for,
of the mentally retarded, 240, 276 104
methods of, 312. See also Boiling in oil; Ferber, N., 347
Crucifixion; Disembowlment; Electric Fifth Amendment, 183, 198, 445, 457
chair; Firing squad; Gas chamber; Finckenauer, J., 86
Impalement; Lethal injection; Tearing Firearms, use of in causing homicide, 29,
asunder; also specific jurisdictions. Table 4-8
constitutionality of, 183 Firing squad, 182, 232
murder ratio, 31-32 Florida, 17, 402, 403
of non-whites. See African Americans age of eligibility for death penalty, Table
by offense. See specific crimes 2-3
physician participation in, 312 clemency board, 358
prisoners awaiting. See Death row current capital statutes, 36
public, 5, 315-16, 384-86 proposed revisions, 44
publicity on television, 147—48 homicide rate, Tables 4-2, 4-4
risk of, 31-32, 193 jury sentencing overrides by trial judge,
and gender, Table 5-9 6,239
on television, 315-16, 384-88 method of execution, Table 1-4
total number of, 3, 30, Table 1-3 number of executions, 21, Table 1-7
victim/offender ratio by race and gender, prisoners on death row, Table 5-1
Table 5-9 Supreme Court, time spent on capital
" volunteers" for, 30-31, 394 cases, 405
of whites for killing blacks, 30 For Capital Punishment: Crime and the
witness(es) to, 395-97 Morality of the Death Penalty, 466
of women, Table 5-9 Ford v. Wainwright, 240
Expatriation, 190, 191, 445, 458 Fourteenth Amendment, 183, 185, 198,
Expert witnesses, unavailable for indigent 458. See also Equal protection of the
defendants, 283, 296 laws
Expiation, 191, 458 Fox, J., 87, 130
Exstrom, B., 369 France, 314
Extradition, 247 Franklin, B., 5
Exum, J., 404 frustration, 112
"eye for an eye," 441 "Fryers Club." See Association of
Government Attorneys in Capital
Fairness in Sentencing Act, 251. See also Litigation
Racial Justice Act. Fulton County, Ga., 283
Index 511
Furman v. Georgia, 249 Government by Judiciary, 214

suspends death penalty, 15 Graham, G., 357, 358
background to, 183-85 Grant, J., 382
capital statutes enacted after, 199 Great Britain. See England; United
legislative response to, 199 Kingdom
resentencing of death row inmates, 163- Greer, R., 346, 355
65 Gregg v. Georgia, 16
text of Justice Brennan's opinion in, 189- on deterrence, 200-1
95 on retribution, 200
Future dangerousness, prediction of, 174, text of Justice Stewart's plurality opinion
338-39, 377-78 in, 196-205
Grigson, J., 354
Gacy, J., v, 111 Gross, S., 87
Gallup, A., 86 essay co-authored by, 90-115
Gas chamber. See Lethal gas Guillotine, 222
General Accounting Office (GAO), 250-51 Guns. See Firearms
text of report from, 268-74
Georgia, 27. See also specific counties and Habeas Act, 243
cities Habeas corpus, federal writ of, 27, 238,
age of eligibility for death penalty, Table 243-48, 288, 297, 298, 317, 352, 357-
2-3 58
Board of Pardons and Paroles, 278 abuse of, 243
capital sentencing procedures post- percent of petitions filed by death row
Furman, 186, 196-97, 202, 203-4 prisoners, 244
current capital statutes, 36 successor petitions for, 241, 243
proposed revisions, 44 Handguns. See Firearms
Chattahoochee Judicial District, 23, 324 "Hands Off Cain," 35 n.31
death sentence, aggravating factors, 203 hanging, 4, 11, 183
for rape, 210-13 Hans, V., 333
fees for defense counsel, 285-86 Harris, P., 86
homicide rate, Tables 4-2, 4-4 Harris, R., vi, 316
jury instructions in capital cases, 197 Harris County, Tex., 408
method of execution, Table 1-4 Harshbarger, S., 403
number of executions, 21, Table 1-7 Hart, H., 174
prisoners on death row, Table 5-1 Hauptmann, R., 107
racial discrimination in sentencing, 254- Hawaii
67 abolishes the death penalty, Table 1-2
statutory aggravating circumstances, 186 homicide rate, Tables 4-2, 4-4
statutory mitigating circumstances, 186 proposed statutory changes regarding the
Trial Lawyers Association, 284 death penalty, 45
Gibson, J., 374 Hawkins, G., 32, 154-55
Giddens, C., 347 Heath, L., 290
Gideon v. Wainwright, 276, 293, 297 Hegel, G., 452
Gilmore, G., v, 30, 145, 232 Hell, 223
Gingrich, N., 28 Henberg, M., 464
Gladish, T., 346, 355 Hennis, T, 349
Godfrey v. Georgia, 239 Henry, C., 423
Goldberg, A., 184 Herrera, L., 353, 356, 357
Gottlieb, G., 183 Herrera v. Collins, 241
512 Index
Hicks, L., 347 number of executions, Table 1-7

Hijacking. See Aircraft hijacking prisoners on death row, Table 5-1
Hired killers, public opinion on death Illinois, 19
penalty for, Table 7-1 age of eligibility for death penalty, Table
Hitler, A., 454, 467, 468 2-3
Hoffman, J., ix, 314 current capital statutes, 36
essay by, 333^43 proposed revisions, 45
Holloway, J., 276 homicide rate, Tables 4-2, 4-4
Homicide. See also Manslaughter; Murder number of executions, Table 1-7
arrests for, 31 prisoners on death row, Table 5-1
by age, Table 4-6 Imprisonment. See also Prison; Prisoners
capitally punishable, Table 1-1 as alternative to death penalty, 4, 176,
convictions for, 31-32 180-82, 207, 335, 336
erroneous convictions of, 344-60 length of actual sentences for murder,
execution ratio, 31-32 99, 118, 180-82
interracial, 29, Tables 4-5, 4-7 length of perceived sentences for
intraracial, 29, Tables 4-5, 4-7 murder, 340, Tables 24-5, 24-6
as leading cause of death, Table 4-3 for life without possibility of parole
by men, Tables 4-5, 4-7 (LWOP), 85, 87-88, 98-99, 181
of men, Tables 4-5, 4-7 commutation of sentence, 120
in prison, 176-77 jurisdictions enforcing, Fig. 8-1
rates of, Tables 4-2, 4-4 In Spite of Innocence, 315
risk of among male black youths, Incapacitation, 98-99, 127, 132-34, 461-
29 62
statutory elements defining, 26-27 research on, 162-75
volume of, Table 4-1 Incarceration. See Imprisonment.
by women, Table 4-7 Indiana
of women, Table 4-5 age of eligibility for death sentence,
Hood, R., 34 Table 2-3
Hoose, D., ix current capital statutes, 37
Horton, W., 110 proposed revisions, 45
House, W., 412, 464 homicide rate, Tables 4-2, 4-4
essay by, 415-28 method of execution, Table 1-4
Hughes, W., 287 number of executions, Table 1-7
Human dignity, 190, 191, 195, 200, 233, prisoners on death row, Table 5-1
423, 452, 464-65 Indigent defendants. See Counsel, defense
Human Rights Committee, 246, 247 Injection, lethal. See Lethal injection
Human rights law, 246-48 Innocence
Huntsville, Tex., 387-400 legal meaning of, 354
Hyman, H., 221 obstacles to establishing, 353-59
Innocent persons
Idaho, 27 why convicted, 350-52
age of eligibility for death penalty, Table sentenced to death, 117, 241, 314-15,
2-3 344-60, 427
current capital statutes, 36 risk of being executed, 344, 464
proposed revisions, 28, 45 role of media in vindicating, 354-55
homicide rate, Tables 4-2, 4-4 International Association of Chiefs of
method of execution, Table 1-4 Police, 411
Index 513
International Commission of Jurists, 252 Juveniles

International Conference of Police arrested for criminal homicide, Table
Associations, 411 4-6
International Covenant on Civil and on death row, Table 5-2
Political Rights, 246, 247 execution of, Table 5-8
International law, 187, 246-48 increase rate/volume of murder by, 30
Iowa age of eligibility for death sentence,
abolishes death penalty, Table 1-2 Table 2-3
proposed statutory changes regarding the
death penalty, Table 3-1 Kalven, H., 333
homicide rate, Tables 4-2, 4-4 Kansas, 402
number of executions, Table 1-7 abolishes death penalty, 8, Table 1-2
restores death penalty, Table 1-2 age of eligibility for death sentence,
Isaacs, C, 133 Table 2-3
Italy, 247 current capital statutes, 37
Jackson, R., 242 homicide rate, Tables 4-2, 4-4
Jaggar, B., 19 method of execution, Table 1-7
Jamaica, 311 number of executions, Table 1-7
Jasper County, Miss., 407 prisoners on death row, Table 5-1
Jarramillo, A., 347 restores death penalty, Table 1-2
Jefferson County, Ga., 277 Kant, L, 452, 468
Jent, W., 349 Keaton, D., 345
Jesus, teachings of, 415, 426, 417-19, Keine, R., 346, 355
438-41 Kelly, C., 387
Jewish Peace Fellowship, 412 Kemper County, Miss., 404
Johnson, L., 347 Kendall, G., 3
Johnson, R., 317 Kennedy, R., 297, 298
Judicial error. See Innocence; Innocent Kentucky, 27
persons age of eligibility for death sentence,
Jurek v. Texas, 185 Table 2-3
Juries, capital trial current capital statutes, 37
attitude toward death penalty, 86, 118 proposed revisions, 45-46
awareness of alternative sentences, 120- homicide rate, Tables 4-2, 4-4
22 method of execution, Table 1-4
death-qualified, 334 number of executions, Table 1-7
deliberations prior to sentencing, 313- prisoners on death row, Table 5-1
14, 336-42 public hanging in, 5, 386
discretion in sentencing, 198, 259, 335 Kerrey, R., 383
factors that influence, 336-39, Tables Kidnapping
24-1, 24-2, 24-3 as a capital crime, 7, Table 1-1
judicial override, 342 unconstitutionality of death penalty
research on. See Capital Jury Project for, 186
scrupled, 334 aggravated, 27
sentencing. See Capital sentencing; for ransom, 6, 196
Death sentences murder, 107
Jury nullification, 207, 455, 466 Killing. See Homicide; Manslaughter;
Just deserts, 86, 460. See also Desert Murder
514 Index
King, R., 117 Louisiana

Kinne, N., 404 age of eligibility for death penalty, Table
Kloefkorn, W., 370 2-3
Knapp, J., 348 current capital statutes, 37
KQED, 316, 384-85 proposed revisions, 28, 46
Ku Klux Klan, 23 counsel for the indigent
fees for, 294
Labaton, S., 244 funding for, 284
Lauderdale Cty., Miss., 404 homicide rate, Tables 4-2, 4-4
Law enforcement officers introduces jury sentencing discretion, 5
attitudes toward death penalty, 411 method of execution, Table 1-4
killings of number of executions, 21, Table 1-7
as aggravating factor in capital prisoners on death row, Table 5-1
sentencing, 203 Luke, M., 404
as capital offense, 93 Lutheran Church, 412
public opinion on death penalty for, LWOP (life imprisonment without parole).
Table 7-1 See Imprisonment
Law, international. See Death penalty Lyons, D., 163
Lawyers. See Counsel, defense; Prosecutors Lynching, 23, 167
Layson, S., 129
Lee, W., 345 Machetti, R., 278
Legal Defense Fund (LDF). See NAACP Macias, F. (a.k.a. Martinez-Macias), 345,
Legal Defense and Educational Fund, 350, 352, 353, 356
Inc. Madison, J., 220
Leopold, N., 251 Maine
Lethal gas, 183 abolishes the death penalty, Table 1-2
constitutionality of, 10 homicide rate, Tables 4-2, 4-4
Lethal injection, 10-11, 233, 396-97, proposed statutory changes regarding the
468 death penalty, 46
drugs used in, 396 restores the death penalty, Table 1-2
Lewis, A., 276 Manslaughter, 431, 435
Lex talionis, 453, 465-66 Mandatory death penalty. See also specific
Life crimes and states
right to, 467 administration of, 207
sanctity of, 190, 453, 466-67. See also constitutionality of, 15, 206-9
Death penalty and imago dei for crimes by prisoners, 186
"a life for a life," 85, 97, 101, 465, Table for felony-murder-rape, 6
7-3. See also Lex talionis history of, 198, 206-7
Life on Death Row, 312 and jury nullification, 207, 455, 466
Life imprisonment. See Imprisonment public opinion on, 85, 94, 103^
Life-term prisoners, 118-20, 122-23, 180- for rape, 211
82 recent enactment, 206
Lincoln Cty., Ga., 403 Manson, C, 118
Linder, M., 347 Markman, S., 315
Lindgren, S., 367-68, 371-72 Marquart, J., 133, 460
Lockett v. Ohio, 239, 312, 369 essay co-authored by, 162-75
Loeb, R., 251 Marshall, R., 322, 325-327
Los Angeles, v, 117, 352 Marshall, T., 101, 214, 227, 279, 344
Index 515
Marshall hypothesis, 101-3 useofLWOP, 119-20

Martin Luther King Center for Nonviolent proposed statutory changes regarding
Change, 412 death penalty, 47
Martinez-Macias, F. (a.k.a. Macias), 277, 285 Mill, J.S., 453
Maryland Miller, A., 315
age of eligibility for death penalty, Table Miller, E., 349
2-3 Miller, J., 375
current capital statutes, 37 Miller, K., 377
proposed revisions, 46-47 Minnesota
homicide rate, Tables 4-1, 4-4 abolishes death penalty, 8, Table 1-2
method of execution, Table 1-4 homicide rate, Tables 4-2, 4-4
number of executions, Table 1-7 proposed statutory changes regarding
prisoners on death row, Table 5-1 death penalty, 47
Massachusetts Miscarriage(s) of justice, 451. See also
abolishes death penalty, Table 1-2 Innocence; Innocent persons
early history of abolition efforts, 7, 8 Mississippi. See also specific counties
felony-murder-rape as capital offense, 6 age of eligibility for death sentence,
homicide rate, Tables 4-2, 4-4 Table 2-3
number of executions, Table 1-7 current capital statutes, 37
proposed statutory changes regarding proposed revisions, 47-48
death penalty, 47 fees for defense counsel, 293-94
Matos, K., ix homicide rate, Tables 4-2, 4-4
Mattox, J., 408 method of execution, Table 1-4
Maxwell, W., 184 number of executions, Table 1-7
Maxwell v. Bishop, 184, 250 prisoners on death row, Table 5-1
McCleskey v. Kemp, 16, 187, 240, 242-43, Missouri
250, 251, 459 abolishes death penalty, 8, Table 1-2
text of Justice Powell's opinion in, 254- age of eligibility for death sentence,
67 Table 2-3
McCleskey v. Zant, 241 current capital statutes, 37
McCloskey, J., 352 proposed revisions, 48
McCormack, E., 296-97 homicide rate, Tables 4-2, 4-4
McFarland v. Texas, 240 method of execution, Table 1-4
McGautha v. California, 184, 192 number of executions, Table 1-7
McGinn, B., 374-75 prisoners on death row, Table 5-1
McManners, J., 222, 225 public hanging, 5
McManus, J., 361 restores death penalty, Table 1-2
McManus, V., 348 Mitchell, W. (Billy), 289-90
McMillian, W., 345, 350, 351-52, 353 Mitigating circumstances
Meese, E., 215 constitutional requirement of, 208
Mello, M., ix as defined by statute, 197
Meriwether County, Ga., 404 as proposed in Model Penal Code, 205
Messer, J., 289 as used in capital sentencing, 239
Methodist Church, 412 Model Penal Code, 202, 204-5
Mexico, 33, Table 6-2 Mondale, W., 110,296
Michigan Montana
abolishes death penalty, 8, Table 1-2 age of eligibility for death sentence,
homicide rate, Tables 4-2, 4-4 Table 2-3
516 Index
Montana (cont. ) rate of, 28, Tables 4-2, 4-4

current capital statutes, 37 responsibility for, 463
proposed revisions, 48 risk of, 28-29
homicide rate, Tables 4-2, 4-4 victims
method of execution, Table 1-4 by race and sex, Table 4-5
number of executions, Table 1-7 by type of circumstances, Table 4-9
prisoners on death row, Table 5-1 urban vs. suburban vs. rural, 323-31
Moore, W., 376-77 volume of, 28, Table 4-1
Moore v. Dempsey, 13 weapons used to commit, 29, Table 4-8
Moral Majority, 411 Murderers
Moran, R., 403 age of, 28, 29, Table 4-6
Morgenthau, R., 313 "death-eligible," 32, 267
Mormons, 411 demography of, 237 n.l
Morris, E., 354 forfeiture of own life, 234
Morris, N., 32 institutional behavior of convicted, 168-
Morrison, F., 381 70, 173, Table 10-5
Mosaic code/covenant/law, 415, 416, 419, juvenile, 30, Table 4-6
422, 424 moral status of, 234-35
Murder. See also Homicide; Manslaughter parole behavior of, 170-73
in abolition vs. retentionist jurisdictions, recidivism among, 128, 132-33, 162-75,
139-40, Table 9-1 Table 10-7
arrests for, by age, Table 4-6 sex of, 28
Biblical prohibition of, 424-26 Murray v. Giarrantano, 240
as capital crime, Table 1-1, 149, 450 Myers, L., ix, 316
circumstances in which committed, essay by, 361-83
Table 4-9
by convicted murderers, 169, 171-72, Nathanson, S., 461
Table 10-5 NAACP Legal Defense and Educational
death sentence ratio, 31-32 Fund, Inc. (LDF), 31, 163, 184, 249,
definition 287
by FBI, 27, 31 National Association of Attorneys General,
by statute, 212 411
degrees of, 4 National Association of District Attorneys
felony, 150 (NAD A), 298, 411
interracial vs. intraracial, 29, 323-31 National Association of Evangelicals
by juveniles, 29, Table 4-6 (NAE), 411
of law enforcement officers, 150-51 National Bar Association, 412
in narcotics traffic, 30 National Center for Health Statistics
and nonnegligent manslaughter, 27, 31, (NCHS), 148
Tables 4-2, 4-3 National Coalition to Abolish the Death
offender/victim relation, Table 10-4 Penalty (NCADP), 27-28, 412
in prison, 169 National Conference of Black Lawyers,
prevention of 412
by deterrence, 127-28 National Corrections Reporting Program,
by incapacitation, 128 179
public opinion on death penalty for, Fig. National Council on Crime and
1-3, Table 7-1 Delinquency (NCCD), 132, 412
by released murderers, 132-33, 170-73, National Law Journal, 279, 287
177-79 National Lawyers Guild, 412
Index 517
National Legal Aid and Defender New Mexico

Association, 244, 293, 412 abolishes death penalty, Table 1-2
National Legal Research Group, 121 homicide rate, Tables 4-1, 4-4
National Prisoner Statistics, 144. See also number of executions, Table 1-7
Bulletin of Justice Statistics proposed statutory changes regarding
National Science Foundation, 335 death penalty, 49
National Sheriff's Association, 411 New Orleans, La., 283
Natural rights. See Rights, natural New Testament. See Bible
Nebraska New York
age of eligibility for death sentence, introduces electric chair, 8
Table 2-3 abolishes death penalty, Table
Board of Pardons, 365, 368 1-2
Board of Parole, 365-66
attitudes toward death penalty, 84,
clemency hearing, 358, 366-73
123-2
Department of Correctional Services,
402
number of executions, Table 1-7 homicide rate, Tables 4-2, 4-4
prisoners on death row, Table 5-1 number of executions, Table 1-7
Nelson, B., 363-64, 366-67, 370, 372, 375- restores death penalty, Table 1-2
76, 379-80, 381, 382 Nixon, R., 17
Nelson, G., 277, 350 Noah's covenant, 416, 429, 429-37
Nevada North Carolina
age of eligibility for death sentence, age of eligibility for death sentence,
Table 2-3 Table 2-3
clemency board, 358 current capital statutes, 37
current capital statutes, 37 proposed revisions, 48-49
homicide rate, Tables 4-2, 4-4 estimated cost of death penalty system,
introduces lethal gas chamber, 10 317, 405-7
method of execution, Table 1-4 homicide rate, Tables 4-2, 4-4
number of executions, Table 1-7 mandatory death penalty, 206-9
prisoners on death row, Table 5-1 method of execution, Table 1-4
New Hampshire number of executions, Table 1-7
age of eligibility for death sentence, prisoners on death row, Table 5-1
Table 2-3 North Dakota
current capital statutes, 37 abolishes death penalty, 8, Table 1-2
proposed revisions, 49 homicide rate, Tables 4-2, 4-4
homicide rate, Tables 4-2, 4-4 proposed statutory changes regarding the
death penalty, 49
number of executions, Table 1-7
prisoners on death row, Table 5-1
Gates, T., 223, 225
New Jersey
age of eligibility for death sentence, Offenses, capital and noncapital. See
Table 2-3 Capital crimes
current capital statutes, 37 Oglethorp County, Ga., 276
proposed revisions, 49 Ohio
homicide rate, Tables 4-2, 4-4 age of eligibility for death sentence,
homicides in, 321-31 Table 2-3
method of execution, Table 1-4 current capital statutes, 37
prisoners on death row, Table 5-1 proposed revisions, 50
518 Index
Ohio (cont.) Payne v. Tennessee, 240, 313

early efforts to abolish the death penalty, Peek, A., 348
7, 8 Penology. See Punishment
homicide rate, Tables 4-2, 4-4 Pennsylvania
method of execution, Table 1-4 age of eligibility for death sentence,
number of executions, Table 1-7 Table 2-3
prisoners on death row, Table 5-1 current capital statutes, 37
Oklahoma proposed revisions, 51
age of eligibility for death sentence, 240, colonial capital offenses, 4
Table 2-3 early efforts to abolish the death penalty,
current capital statutes, 37 7, 8
proposed revisions, 50-51 homicide rate, Tables 4-2, 4-4
homicide rate, Tables 4-2, 4-4 introduces degrees of murder, 4
introduces lethal injection, 10 jury instructions regarding length of
method of execution, Table 1-4 prison term for murder, 181
number of executions, Table 1-7 method of execution, Table 1-4
prisoners on death row, Table 5-1 number of executions, Table 1-7
Old Testament. See Bible prisoners on death row, Table 5-1
Old Confederacy, 221 prosecutorial discretion in, 324
Omnibus Crime Control Bill, 251 Pennington, N., 333
Opinion polls. See Public opinion Penry v. Lynaugh, 240
Orange County, Calif., 408 Perini, V., 404
Oregon Perjury in a capital case, as capital offense,
abolishes death penalty, 8, Table 1-1
Peterson, A., 379, 383
Table 1-2
Peterson, R., 130, 462
age of eligibility for death sentence,
essay co-authored by, 135-61
Table 2-3
Philadelphia, Pa., v
cost of death penalty system, 404
deterrence research in, 144-45
inadequate defense counsel in, 281,
286, 324
Physicians. See Executions, physician
method of execution, Table 1-4 participation in
number of executions, Table 1-7 Pick-pocketing, 450-51
prisoners on death row, Table 5-1 Pitts, F., 345
restores death penalty, Table 1-2 "Plainsmen," 382
Organization of American States, 247 Plato, 233
Otey, H. (Wili), 316, 361-83 Plea bargaining, 32, 264, 330
Otey Defense Team, 373, 375 Police officers. See Law enforcement
Owen, R., 387, 396 officers
Owensboro, Ky., 356 Politicians, 17-18, 23-24, 121-22
Politics, 91-92, 110-11, 401-2, 409
Parker, C, 371 "politics of death," 123
Parole Polls, opinion. See Public opinion on death
release of convicted murderers on, 118 penalty
violations of. See Recidivism Potter, N., 370, 380
Pataki, G., 18 Powell, B., 352
Paul, St., teachings of, 415, 420-22, 441- Powell, L., 242, 250
43 text of judicial opinion by, 254-67
Index 519
Powell v. Alabama, 13, 275, 289, 302 of men, 84, Fig. 7-2
Powers, S., 251 perceived by supporters as unfair, 109,
Powers, V., 373, 374 117
Pratt et al. v. Att'y Gen' I of Jamaica, 311 of police chiefs, 88
Prejean, H., 317 according to political viewpoint, 87
Prejudice, racial. See Racial discrimination support drops if the alternative is
Presbyterian Church, 412 LWOP, 116, 117-18
Prison of women, 106, Fig. 7-2
as deterrent, 176-79 Pulaski, C., 250
homicide inside, 168-70, 176-79, Table Pulley v. Harris, 239, 460
10-5 Punishment
sentences. See Imprisonment capital. See Death penalty; Death
Prisoners sentence(s)
adjustment to life in prison, 122-23 cruel and unusual. See Cruel and
assault by life term, as capital offense, unusual punishment
Table 1-1 as denunciation, 204 n.4
on death row. See Death row as deterrent. See Deterrence
Privy Council, 311 justice of, 440-41
Procedural default, inexcusability of, 241 purposes of, 464
Profit, W., 377 as retribution. See Retribution
Proffitt v. Florida, 185 as vindication of legal and moral order,
Proportionality Review Project, 321-325 453, 465
Proportionality review, 28, 186, 197, 460 Putnam, C., ix , 315
not a constitutional requirement in
capital cases, 239
Quakers, 4, 7
Prosecutors
discretion in capital cases. See Discretion
superior resources available to, 280 Race
Protestant Episcopal Church, 411 as factor in death sentences, 166-67, 249-
Protestants, 411, 452. See also specific 51, 254-67, 271-72, 350-51, 392,
denominations 426, 460, 323-27
Public defenders, 279, 321-27 of the defendant, 272
lack of, 282-84 of the victim, 271
See also Counsel, defense of rape offender, 6
Public Interest, 251 as factor in public attitudes toward death
Public opinion on death penalty, 16, 84- penalty, 111-12
126, Figs. 1-3, 7-1. See also specific of murder offenders/victims, Table 10-4
crimes of murder victims, Table 4-5
of blacks vs. whites, Fig. 7-2 of persons on death row, Table 5-1
of college youths, 85 Racial discrimination
of corporate executives, 84 and constitutionality of death penalty,
if not an effective deterrent, 96 249, 447
explanation of, 94-101 and death sentences, 23
role of frustration and fear in, 109 history of, 263
fluctuates with crime rate, 108, Fig. 7-4 intentional vs. statistical, 250, 255, 256-
importance for constitutional 58
interpretation, 91, 192-93 remediable by legislation, 261
for juveniles, 106 research on, 254, 268-74
520 Index
Racial disparities in death sentencing, 240, Revenge, 86, 97. See also Vengeance
254, 271 motives for vs. meanings of, 433-35
Racial Justice Act, 251 Rhode Island
Radelet, M., ix, 87, 130, 275, 314-15, 377- abolishes death penalty, 8,
78 Table 1-2
Ralph v. Warden, 348 homicide rate, Tables 4-2, 4-4
Ramos, J., 348 proposed statutory changes regarding
Rape death penalty, 51-52
as capital offense, 196, 210, Table 1-1 restores death penalty, Table 1-2
unconstitutionally of, 186, 210-13, Richards, D., 187
458-59 essay by, 214-31
public opinion on, 105, 210-11, Table Richardson, J., 349
7-1 Riley, T., 382
death sentences for, 167-68, 184 "right to have rights," 191
defined by statute, 213 Right to life. See Life, right to
felony-murder, 6 Rights, natural, 233-34
and racial discrimination, 167-68, 184 Robbery
rate of, Table 4-2 as capital crime, 196, 212
volume of, Table 4-1 armed, as capital crime, Table 1-1
Reagan, R., 17, 110 bank, as capital crime, Table 1-1
Recidivism, 132. See also Murderers public opinion on death penalty
declines with age, 173 for, 104
Reckless killing of a child, as capital rate of, Table 4-2
offense, 28 volume of, Table 4-1
Reed, R., 411 Roberts (Stanislaus) v. Louisiana, 186
Referenda, 87, 88-89, 199 Robertson, J., 297
Reformation of death row convicts in Robespierre, M., 222
prison, 437 Robinson v. California, 190
Rehabilitation, 437 Roman Catholic Church. See Catholics.
Rehnquist, W., 242, 291 Rope, The Chair, and the Needle: Capital
Reiman, J., 465 Punishment in Texas, 1923-1990, The,
Renner, S., 362, 374, 375 460
Republicans, 17, 251, 311, 411 Rosenberg, E. and J., 107, 242
Restitution by convicted murderers, 99, Ross, J., 347
118, 123 Rothman, S., 251
preferred by public to death sentence, Rubin, A., 288
122 Rudolph v. Alabama, 184
Retentionists, 7, 129, 131 Rush, B., 5
Retribution Russia, 33
concept of, 85 Rust-Tierney, D., ix
as purpose of punishment, 200
role in public support for the death Sabotage, death penalty for, Table 1-1
penalty, 86, 96-97 Sanctity of life, 453, 466
symbolic, 23-24 Saudi Arabia, 131
Supreme Court on, 200 Scalia, A., 182, 242
Retribution: Evil for Evil in Ethics, Law, Schabas, W., ix, 34
and Literature, 464 Schulp, L., 243^4
Retroactivity of constitutional rulings, 238, Schuessler, K., 140
357 Schuester, R., 369-70
Index 521
Schwarzschild, H., ix, 316, 412, 450, 463 fees for defense counsel, 294
essay by, 384-85 homicide rate, Tables 4-2, 4-4
Schwarzschild' s Paradox, 312 jury instructions regarding length of
Scott, B., 350 prison sentence for murder, 181-82
Scottsboro Boys, 13, 310 method of execution, Table 1-4
Scripture. See Bible number of executions, Table 1-7
Scrupled juries. See Juries, capital trial prisoners on death row, Table 5-1
Sellin, T., 129, 138 154 research on deterrence, 145
Sentences, death. See Death sentences South Dakota
Sermon on the Mount, 416, 417-18 age of eligibility for death sentence,
Sex of persons Table 2-3
executed, Table 5-9 abolishes death penalty, 8, Table 1-2
on death row, Tables 5-1, 5-3 current capital statutes, 37
as murder victims, Table 4-5 proposed revisions, 52
Sexual molestation of a child, public homicide rate, Tables 4-2, 4-4
support of death penalty for, 105-6, method of execution, Table 1-4
Table 7-1 number of executions, Table 1-7
Shattuck, J., 247 prisoners on death row, Table 5-1
Shaver, D., 408 restores death penalty, Table 1-2
Shelby, R., 88 Sourcebook of Criminal Justice Statistics,
Sheleff, L., 88 26
Shenon, P., 131 Southern Center for Human Rights, 252,
Shooting. See Firearms; Firing squad 285, 292
Shugrue, R., 382 Spangenberg, R., ix
Silver, J., ix Spaziano v. Florida, 239
Simants, E., 369 Spenkelink, J., 145
Simmons v. South Carolina, 181-82, 241, Stack, S., 146
339 Stalin, J., 454, 467, 468
Simpson, O., v Stanford v. Kentucky, 240
Sirhan, S., 118 Starkweather, C., 362, 371
Sixth Amendment, 279 Stenberg, D., 364, 365, 367-68, 373, 374,
Skadden, Arps, 352 381
Skelton, J., 349 Stephens, A., 232
Slavery, 23 Stevens, J., 267
Slawson, D., 405 Stevenson, B., 311
Smith, C, 345, 355 Stewart, P., 16, 185, 249
Smith, J. E., 278, 289 text of judicial opinions of, 196-205,
Smith, S., v, 86 206-9
Smith, V., 333 Strickland v. Washington, 239, 288, 290,
Socrates, 233 301
Sorenson, J., 133 Suicide
essay co-authored by, 162-75 as cause of death, Table 4-3
South Africa, 33-34 by death row prisoners, 32-33
South Carolina, v, 408 rate, Table 4-3
age of eligibility for death sentence, volume, Table 4-3
Table 2-3 Sumner v. Shuman, 186
attitude toward death penalty, 84, 86 "super due process," 185
current capital statutes, 37 Supplementary Homicide Reports (SHR).
proposed revisions, 52 See U.S. Department of Justice
522 Index
Supreme Court, U.S. See individual cases Thin Blue Line, The, 349, 355
and Justices Thomas, C, 182, 242
Survey research. See Public opinion Thomas, D., 276
Thompson v. Oklahoma, 240
Tafero, J., 467-68 Tibbs, D., 346
Talladega County, Ala., 275 Tison v. Arizona, 239
Taylor,!., 11 Torture, 189, 453, 463
league v. Lane, 240 Train robbery, as capital offense, Table 1-1
Tearing asunder, 232 Train wrecking, as capital offense, Table
Television. See Execution(s) 1-1
Tennessee Treadway, J., 346
abolishes death penalty, 8, Table 1-2 Treason
adopts discretionary jury sentencing, 5 as capital offense, 196, Table 1-1
age of eligibility for death sentence, in federal law, Table 2-2
Table 2-3 Trial(s). See Capital trial(s)
current capital statutes, 37 Trop v. Dulles, 190, 198, 445
proposed revisions, 28, 52-53 Troy, L., 348
funding for counsel for indigent
defendants, 284 Uniform Crime Reports, 26
homicide rate, Tables 4-2, 4-4 Union of American Hebrew Congregations,
method of execution, Table 1-4 412
number of executions, Table 1-7 Unitarians, 7
prisoners on death row, Table 5-1 United Church of Christ, 412
Resource Center, 394 United Kingdom, Table 6-2
restores death penalty, Table 1-2 United Nations, 187
Terror, the, 222 General Assembly, 246
Terrorism, as capital crime, 131 Human Rights Committee, 246
public support for, Table 7-1 United States. See also specific
Texas jurisdictions
age of eligibility for death sentence, Attorney General, 315
Table 2-3 Congress
attitude toward death penalty in, 85 enacts death penalties, 27, 199
clemency practices, 358 General Accounting Office (GAO)
current capital statutes, 37 text of report by, 268-74
proposed revisions, 53 House Judiciary Committee
eye-witness account of an execution in, Subcommittee on Civil and
395-97 Constitutional Rights, report of,
fees for defense counsel, 285, 286 315
homicide rate, Tables 4-2, 4-4 Subcommittee on Judiciary, 130
jury instructions in capital sentencing, 119 Constitution. See Bill of Rights; specific
law on appeal of a capital conviction, amendments and specific cases
356 Courts. See specific cases and Justices
method of execution, Table 1-4 Department of Justice, 315
murder family victims attending Bureau of Justice Statistics, 2
executions, 5 Federal Bureau of Investigation (FBI),
number of executions, 21, Table 1-7 26, 138
first to use lethal injection, 10, 391 Supplementary Homicide Reports
prisoners on death row, Table 5-1 (SHR), 149-50
Index 523
federal government Warren, E., 242, 446

current capital statutes, 39-40 Washington
number of executions, Table 1-7 abolishes death penalty, 8, Table 1-2
prisoners under death sentence, Table age of eligibility for death sentence,
5-1 Table 2-3
United States Catholic Conference, 412 current capital statutes, 38
Universal Declaration of Human Rights, proposed revisions, 53
187, 246 homicide rate, Tables 4-2, 4-4
Urbom, W., 374 method of execution, Table 1-4
Utah number of executions, Table 1-7
age of eligibility for death sentence, prisoners on death row, Table 5-1
Table 2-3 restores death penalty, Table 1-2
current capital statutes, 38 Washington, D.C.
proposed revisions, 53 abolishes death penalty, Table 1-2
homicide rate, Tables 4-2, 4-4 death penalty referendum, 87, 88-89
method of execution, 10-11, Table 1-4 homicide rate, Table 4-2, 4-4
number of executions, Table 1-7 use of LWOP, 120
prisoners on death row, Table 5-1 Washington Legal Foundation, 251, 411
Utilitarian arguments, 86, 100 Weems v. U.S., 189, 190, 459
Wells, M., 336
van den Haag, E., 250, 412-13, 457-69 West Virginia
essay by, 445-56 abolishes death penalty, Table 1-2
Vengeance, 425-26, 431-33, 440, 451-52, homicide rate, Tables 4-2, 4-4
464. See also Revenge number of executions, Table 1-7
Vermont proposed statutory changes affecting
abolishes death penalty, Table 1-2 death penalty, 53
homicide rate, Tables 4-2, 4-4 White, B., 185, 186
number of executions, Table 1-7 text of judicial opinion by, 210-13
proposed statutory changes regarding White, W., 239
death penalty, 53 Whites
Victim(s) of murder. See Murder on death row, Table 5-1
Victim-impact testimony, 28, 240, 312-13 as homicide victims, Table 4-5
Violent Crime Control and Law victim/offender relationship in homicide,
Enforcement Act, 7 Table 4-7
Virginia Wilhoit, G., 345, 350
age of eligibility for death sentence, Will, G., 251
Table 2-3 Williams, D., 347
current capital offenses, 38 Wisconsin
proposed revisions, 53 abolishes death penalty, 8, Table 1-2
first execution, 3 homicide rate, Tables 4-2, 4-4
homicide rate, Tables 4-2, 4-4 proposed statutory changes affecting
method of execution, Table 1-4 death penalty, 54
number of executions, 21, Table 1-7 Witherspoon v. Illinois, 17, 184
prisoners on death row, Table 5-1 Witnesses
von Drehle, D., 312 capital crime of attempting or conspiring
to kill, 27
Wallace, R., 348 to an execution, 387-400
Walton v. Arizona, 239 Wolfson, W. P., 76-77
524 Index
Women homicide rate, Tables 4-2, 4-4

on death row, Table 5-3 method of execution, Table 1-4
executions of, Table 5-9 number of executions, Table 1-7
murder by, 28-29 prisoners on death row, Table 5-1
murder victims, 29, Table 4-5
victim/offender relationship in homicide, Xenophon, 233
Table 4-7
Woodson v. North Carolina, 186, 249 Yoder, J., 412, 464
text of Justice Stewart's opinion in, 206- essay by, 429-44
9 Young, J., 289
Woodworth, G., 250 Youth of capital defendant as mitigating
Wyoming factor, 205
age of eligibility for death sentence, Yunker, J.A., 131
Table 2-3
current capital statutes, 38 Zeisel, H., 86, 333
proposed revisions, 54 Zimring, R, 154-55

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• THE DEATH PENALTY IN AMERICA

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Edited by Hugo Adam Bedau

Oxford University Press

Copyright © 1997 by Hugo Adam Bedau

Library of Congress Cataloging-in-Publication Data

1. Capital punishment—United States. I. Bedau, Hugo Adam.

By the mid-1990s, the wealth of relevant literature is little short of over-

followed by a discussion of wrongful convictions in capital cases, a case study of

1 Background and Developments 3

Part I The Laws, the Crimes, and the Executions

2 Offenses Punishable by Death 36

Part DI The Controversy over Deterrence and Incapacitation

11 Prison Homicides, Recidivist Murder, and Life Imprisonment 176

Part IV The Controversy over Constitutionality

12 Furman v. Georgia, 1972: The Death Penalty as Administered Is

Part V The Controversy over Race and Class

Part VI Controversies from Prosecution to Execution

23 "A Good Murder" 319

25 Innocence and the Death Penalty: Assessing the Danger of Mistaken

Part VII The Death Penalty: For and Against

Table 1-1: Capital Crimes in the United States, by Executions and

Table 5-2: Juvenile Offenders Sentenced to Death, by Jurisdiction,

Figure 1-1: Persons Executed Under Civil Authority, Annually,

Background and Developments

Early 1600s to 1790s

Invention of Degrees of Murder

iting it to those convicted of murder in the first-degree (or, in some jurisdictions,

Ending Public Executions

Giving the Trial Jury Sentencing Discretion

Reducing the Variety of Capital Statutes

Number of Execution(s) carried out

Capitally punishable homicide 44 Yes

Complete Abolition of the Death Penalty

1910s to the Early 1950s

Figure 1-1. Persons executed under civil authority, annually, 1930-95.

Humanizing the Method of Execution

All years 4,175

Expanding the Role of Federal Appellate Courts

Lethal Injection Electrocution Lethal gas Hanging Firing squad

Figure 1-2. Persons under death sentence, annually, 1930-95.

Increase in Time Served Under Death Sentence

Year of Average elapsed time, in months, from

Challenges to the Constitutionality of the Death Penalty

1970s to the Present

Increasing Public Support for the Death Penalty

Figure 1-3. Public opinion on the death penalty, 1936-94.

Politicization of the Death Penalty

Declining Use of Executive Clemency

Increasing Complexity and Cost of Capital Punishment

Year BJS R&Z

Source: Bedau 1990-91, Table 1, p. 263 (using Bureau of

Declining Importance of Deterrence and Incapacitation

Regionalization of the Death Penalty

Pennsylvania 154 Illinois 7

Table 1-7. (continued)

culture is not entirely clear; conventional explanations (unsupported by any un-

Symbolic Role of Capital Punishment

6. See Acker and Lanier 1993a.

The Laws, the Crimes,