The death penalty - legal cruelty

Content

1.1 Chronology of Capital Punishment in the USA
1.2 Recent Development

2. The Offender
2.1 Execution Methods
2.2 Irrationally Committed Murder
2.3 Poor Offenders - no good Lawyer
2.4 Discrimination

3. The Victims
3.1 The People who Have close Contact with the Offenders on Death Row
3.1.1 The Relatives of the Offender
3.1.2 Attendants
3.1.3 Spiritual Advisers
3.1.4 Doctors
3.2 Selection of Execution Witnesses
3.3 Forgiveness and Grief
3.4 The Death Penalty in Retaliation

4. The State
4.1 The Death Penalty vs. Human Rights
4.2 The State's Aims Concerning the Death Penalty
4.2.1 The Death-Penalty - Judicial Murder?
4.2.2.The Death Penalty as Deterrence
4.3 Functionalisation of the Death Penalty
4.3.1 Problems of the Judicative
4.3.2 The Public Opinion
4.3.3 Judicial Room for Manoeuvre
4.4 Without Parole vs. Death Penalty

5. Conclusion - The Death Penalty: A View of Opposition

6. Bibliography and Illustrations

1.1 Chronology of Capital Punishment in the USA

People have been humiliated, mutilated and killed - daily were atrocities in the name of the law commited. Reigns of terror invented methods, which brought the inhuman aspect in man to light. The victims suffered from unbelieveable pains. And still today there exist methods, which mean torture and pain for the offenders as well as for the victims - even in the USA.

The history of capital punishment in the territory which is now known as the USA starts in the 17th Century, when the American colonies imposed the death sentence not only for 14 offenses as England prescribed it, but also for fewer crimes. The first known execution was of Daniel Frank. He was put to death in 1622 in the Colony of Virginia for the crime of theft.

In the 19th century politics and advances of technology influenced the use of the death penalty a lot. On August, 6, 1890 murderer William Kemmler was the first person, who has been executed in the electric chair. After a short-lived abolition movement which led to the repeat of numerous state death penalty statutes in 1900, Kansas was the first state who abolished capital punishment in 1907. Eight more states followed suit over the next 10 years. Then two sensational murder cases restarted the debate over the death penalty in the 1920s. As a result of this a time of death penalty support followed. For example two Italian immigrants were electrocuted in Massachusetts for two murders. Finally the peak of the U.S. executions was reached in the 1930s, averaging 167 a year.

The decline of executions in the 1960s was caused by growing doubts about the death penalty. That means that after Luis Jose Monge who died in the gas chamber at Colorado State Penitentiary, an unofficial moratorium on executions began.

The 1970s was an eventful decade for capital punishment. It first saw the death penalty canceled and then reinstated. The period from 1972 to 1976 meant a moratorium of the death penalty. The Supreme Court ruled in a 5-4 decision in Furman v. Georgia^[1] that the death penalty was a cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution and the due process guarantees of the Fourteenth Amendment. They justified that with the arbitrainess of how juries impose sentences. This decision overturned all existing death penalty laws and death sentences. More than 600 death row inmates who had been sentenced had their death sentences lifted up as a result of Furman^[2]. But over four years later, on July 2nd, 1976 the Supreme Court reinstated the death penalty in Gregg v. Georgia, because the death penalty is no longer unconstitutional. They said the death penalty no longer violates the Eighth Amendment, because the state introduced a new two-stage trial system and new methods of execution.

And finally after a break of almost 10 years Gary Gilmore was the first person executed in the U.S. under the new death penalty laws in 1977. In the same year Oklahoma becomes the first state who adopted lethal injection. The 1980s was also the time when the Supreme Court made its views on the death penalty much more clearer. For example it prevented insane persons from being executed in Ford v. Wainwright. But it was also the time when executions increased dramatically in 1984, with 21 in that year. Since 1984 there have been at least 10 executions in the U.S. every year! In the last decade of the 19th century, the 1990s, “death penalty provisions in anti-crime bills stirred sharp debates in Congress.”^[3] In 1994 President Bill Clinton signed a crime bill^[4] which made dozens of federal crimes subject to the death penalty. Furthermore the House voted 297-132^[5] to set the limit for inmate appeals of death sentences to one year in state cases. In the same year, on March, 7th 1995 George E. Pataki, the Governor of New York signed the new death penalty which means an enacting of the death penalty law.

By the end of 1997, 38 states and the federal government had still capital punishment law; 12 states have no death penalty.^[6]

1.2 Recent Developments

“Each year there are about 250 people added to death row and 35 executed.”^[7]

The death penalty is the roughest form of punishment imposed in the U.S. today. As mentioned before, numerous states have reinstated capital punishment in their statutes and there are only a few which do not have the death penalty.

In addition there are of course a lot of anti-death penalty campains. The most common organization which supports anti-death penalty campains is Amnesty International, I think. It is a well-known international human rights organization which fights for human rights issues throughout the world. And as a result of this it advocates for the abolition of the death penalty which violates human rights and the right to life. Another common organization against the death penalty is the Death Penalty Information Center (DPIC). The aim of this non-profit organization is the providing of analysis and information on issues concerning capital punishment. It was this organization which noticed that from 1973 to 1997, just 69 inmates on death row had been set free after having been declared innocent. That means that the chances of the state killing innocent people will increase if legislation reduces inmates' appeal opportunities which will lead to swifter executions.^[8]

Furthermore the recent developments show a tendency towards the wish to abolish the death penalty. In 1997 the ABA^[9] demanded at its February mid-year meeting for a moratorium on executions until death penalty fairness is assured. They were calling for a halt on executions until courts across the country can ensure that people charged with capital crimes receive due process protections, such as “providing competent counsel in capital punishment cases, eleminating race discrimination in capital sentencing or preventing the execution of mentally retarded persons and persons who committed crimes as minors.”^[10]

In the same year the International Helsinki Federation, an international organization which observes human rights abuses in the Unites States, Canada and Europe wrote in their 1998 report on the U.S. down that: “While many countries, in line with international human rights standards, were planning to abolish the death penalty, US states carried out executions at a record pace in 1997.”^[11] From January to September 1997 54 men had been executed in the United States - half of them in Texas. They also noticed that Iowa, Massachusetts and the District of Columbia were thinking about the reintroduction of the death penalty. Furthermore they revealed that only Iran, Nigeria, Pakistan, Saudi Arabia, Yemen and the United States were amoung these countries which execute people for crimes committed as a minor.

In addition there was the UN Human rights Commission in Geneva in April 1998. This commission passed a resolution that impels member states to place a general moratorium on executions in their countries which should lead towards a world-wide abolition of the death penalty. In this vote China, The Democratic Republic of Congo, Sudan and the United States voted against the resolution. Mr. Ndiaye published a report on APR-3 which described his perceptions while in the United States: “The use of the death penalty in violation of international standards will not help to resolve social problems and built a more harmonius society but, on the contrary, will contribute to exacerbated tensions between races and classes.”^[12]

But in 1998 and 1999 there were again several executions^[13] on people who have been found guilty of committing a capital offence while a minor and maybe suffering from a brain damage or mental illnesses. Lois Whitman, executive director of the Children's Rights Division of Human Rights Watch remarked on the execution of Sean Sellers: “Again the United States has put itself outside the bounds of accepted international standards by executing an individual for crimes committed before the age of eighteen. We are deeply disappointed that neither Governor Keating nor the Oklahoma Board of Pardons and Paroles were willing to grant clemency to Sean Sellers. Their failure to do so puts our nation in the company of countries like Iran, Nigeria and Pakistan in defying a global consensus against such executions.”^[14]

2.1 Execution Methods

To begin with I want to mention that how people are killed is not the point - the point is that people are being killed. There is no human way to kill a person. But looking at the efforts to make executions more human, you have to consider for whom you want to make them more human: for the person being executed or for the executioners and witnesses.

Many people may like the idea of the death penalty, but it is much harder carrying it out. When a jury has declared a criminal guilty they go to the second part of the trial, the punishment phase. If the jury suggests the death penalty and the judge agrees the criminal will face some form of execution. Lethal injection is the most common form used today.

There are several methods of execution: a barbaric and outmoded method of execution is hanging, of couse. But this method of execution is still spread in Montana (option of hanging or lethal injection), Delaware (option of hanging or lethal injection) and New Hampshire (no death sentences). Hanging a person is a very barbaric and inhuman way to execute death row inmates: if done improperly the person being hanged could die a slow death by strangulation or be decapitated. It is not only inhuman and barbaric for the person being executed but also for prison staff, witnesses and the executioner. As Larry Kincheloe^[15] means a “hanging can turn into a gruesome affair resulting in trauma for prison staff members, starting from the preparation to cleaning up afterward.”^[16]

Moreover there exists the possibility to execute the death row inmate by firing squad. During this procedure the prisoner is shot through the heart by multiple markesmen. Death appears to be quick, assuming the killers don't miss.

Another method of execution is the electric chair. He has been used first in 1924 in the 20th century. And there were a lot of horrible stories of people suffering. “Many states were using the old, half-ass rigged electric chairs with bunch of jakelegs pulling the switches, and there were all sorts of problems.”^[17] As Sam Cayhall tells us furthermore about the problems, “they'd strap in some poor guy, pull the switch, give him a good jolt but not good enough, guy was roasting on the inside but wouldn't die, so they'd wait a few minutes, and hit him again. This might go on for fifteen minutes. They wouldn't fasten the electrodes

eyes and ears.”^[18] There are also stories about death row inmates who received improper voltages. This caused a building up of steam in the prisoners head and as a result of this the eyeballs popped out and blood ran down the face.

Furthermore there are lots of stories about men who sat still after the initail jolt, but after a few minutes started breathing again. So they have to hit them with another jolt. This might happen four or five times. During an electrocution the skin gets so hot that they cannot touch the person for a while. So, before they could declare the prisoner's death, in the old days, they have to let the prisoner cool off. That was so awful that an Army doctor invented the gas chamber - a more human way to kill people, he thought.

The gas chamber is another method of execution used in the USA. As it is described by John Grisham, “they're all basically the same - made of steel, octagonal in shape with a series of windows placed here and there so folks can watch the death. There's not much room inside the actual chamber, just a wooden seat with straps all over it. There's a metal bowl directly under the chair, and just inches above the bowl is a little bag of cyanide tablets which the executioner controls with a lever. He also controls the sulfurie acid which is introduced into the affair by means of the canister. The canister makes its way through a tube to the bowl, and when the bowl fills with acid, he pulls the lever and drops the cyanide pellets. This causes the gas, which of course causes death, which of course is designed to be painless and quick.”^[19]

And finally there is lethal injection which seems to guarantee a quick and painless death, too. But doctors note that there are problems with this method of execution. If the technician injects the chemicals into muscle tissue rather than veins, in addition to extreme pain, it can take much longer^[20] to make the prisoner unconscious. Another problem which results also in pain for the prisoner occurs, if the chemicals are given in the wrong order or in the wrong dosage. These problems are all bound on human errors which can always occur. Today lethal injection is the most common execution method in the United States. It is used in 25 states as the prescribed one or one of the possible methods of execution.

2.2. Irrationally Committed Murder

There are three main groups to mention when talking about irrationally committed murder: persons under the influence of drugs, mentally ill persons and of course juveniles who often don't know what they did, because they were to young. But the United States allow persons under the influence of drugs, mentally ill persons and juveniles to be sentenced to death.

Firstly I want to mention the possibility of being under the influence of alcohol or other drugs. Of course, I don't want to protect these people, because they are not in rational control, but the judges should take into consideration that the death penalty is maybe a punishment which is to hard and irrevocable for that.

Secondly, it is also common in the U.S. to sentence a multitude of mentally ill and mentally retarded persons to death. In Penry v. Lynaugh (1989) they ruled that it is not categorically unconstitutional to execute a mentally retarded person found guilty of capital murder. But some states have enacted laws specifically excluding capital sentencing for those persons, too. However executing mentally ill or retarded persons is a very difficult issue. These people murder for a variety of reasons and under many different situations. Such psychopaths and other mentally ill individuals have little regard for human life and cannot take full responsibility for their actions. Also mentally handicapped individuals who sometimes experience periods of rage can occasionally kill. And of course, while killing they aren't under rational control. That means that these people have to be treated in a special way, because they committed the murder under special circumstances, too. And I think there are not any reasons which justify the sentencing of the death penalty, because most capital crimes are committed in the heat of the moment.

Now to come to the last group: the juveniles. It is against international human rights treaties which prohibit anyone under the age of 18 at the time of the crime being sentenced to death. Six countries since 1990 are known to have executed death row inmates who were under 18 years old at the time of the crime.^[21] The majority of known executions of juvenile offenders was in the USA. In an examination of 23 affairs in which juveniles were on death row Amnesty International showed that this juveniles did not have been given the basic standards of fairness in a trial. You can also discouver that even in cases concerning juveniles there are already traces of racial discrimination. In Texas are eight out of nine juveniles black or latin-american death row inmates.^[22] A lot of juvenile defendants have been insufficiently acted for. As a result of this these defendants often haven't received mitigating circumstances of a penalty for their minority. An example for the constitutionality and the support of the state of executing youths who were younger than 16 years at the time of their offence shows the case Thompson v. Oklahoma (1988).

2.3. Poor Offenders - no good Lawyer

The provision of free and qualified counsels for defendants who cannot afford a lawyer is very important for a fair trial. The competence of a good lawyer can rule on life or death in capital punishment. But what is most important is the competence of the lawyer in the first trial. Its outcome decides about the whole result of the case.

However, there were numerous defendants who have been represented by lawyers who had not had enough knowledge of legislation concerning death penalty or even never had experiences in criminal law. In addition to that, the lawyers ordered and paid by the court often get an extreme low payment for this cases. And as a result of this they don't spend a lot of time on preparation or other important mitigating evidence for their clients. But despite all errors which are caused by inexperienced lawyers courts often refuse petitions on appeal of defendants which were justified by unqualified counsels. These cases show that the imposition of death sentences sometimes is not dependent on the gravity of a crime but dependent on the skills of the lawyer.

2.4 Discrimination

The death penalty never has and never will be applied fairly across race, class and sex lines. The new death penalty laws enacted in the late 70's and early 80's were supposed to eliminate disparity, but they have not done so.

[...]

^[1] 05/02/72

^[2] Focus on the Death Penalty: History & Recent Developments, Internet website

„http://www.uaa.alaska.edu/just7death/history.html“, outcalled 03/01/99

^[3] Chronology of capital punishment, Internet website „http://www.pbs.org/wgbh/page/frontline/ angel/timeline.htm“ 03/10/95, outcalled 09/15/99

^[4] 09/13/94

^[5] 02/08/95

^[6] Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin and the Distric of Columbia

^[7] Capital Punishment: Life or Death, Internet website „http:/www.cwrl.utexas.edu/~tonya/ spring/cap/group1.htm“, outcalled 03/01/99

^[8] Capital punishment - the death penalty, Internet website „http://www.religioustolerance.org/ execute.htm“, outcalled 03/01/99

^[9] American Bar Association House of Delegates

^[10] Chronology of capital punishment, Internet website „http://www.pbs.org/wgbh/pages/ frontline/angel/timeline.htm“ 03/10/95, outcalled 09/15/99

^[11] Capital punishment - the death penalty, Internet website „http://www.religioustolerance.org/ execute.htm“, outcalled 03/01/99

^[12] Capital punishment - the death penalty, Internet website „http://www.religioustolerance.org/ execute.htm“, outcalled 03/01/99

^[13] 04/22/98, Joseph Cannon, Texas; 05/18/98, Robert Anthony Carter, Texas; 10/14/98, Dwight Allen Wright, Virginia; 02/04/99, Sean Sellers, Oklahoma

^[14] Capital punishment - the death penalty, Internet website „http://www.religioustolerance.org/ execute.htm“, outcalled 03/01/99

^[15] Director of Prisons in 1990; he stated that in a hearing.

^[16] Talking points on the Death Penalty, Internet website „http://www.sen.org/activism/wcadp/ talkpt.htm“, outcalled 09/20/99

^[17]Grisham, John; The Chamber, London 1997. p. 180

^[18] Grisham, John; The Chamber, London 1997. p. 180

^[19] Grisham, John; The Chamber, London 1997. p. 179

^[20] up to five minutes rather than 30-60 seconds

^[21] Only Iran, Nigeria, Pakistan; Saudi Arabia, the United States and Yemen execute people for crimes committed as a minor.

^[22] Boulanger, Christian, Heyes, Vera u.a.; Zur Aktualität der Todesstrafe, Interdisziplinäre Beiträge gegen eine unmenschliche, grausame und erniedrigende Strafe, Berlin 1997. p. 111