Death Penalty in the United States

On the path of its development, humankind is leaning toward increasingly humane methods of providing justice and executing punishment. However, at the same time, the legislation of a number of countries, guaranteeing everyone the right to life, still retains the possibility of applying an extremely cruel method of punishment ‑ the death penalty. Meanwhile, the human right to life is inextricably linked with the movement to abolish the death penalty.

The death penalty is one of the oldest punishments known to humankind and applied since ancient times, starting from primitive communal systems. It was applied before criminal law arose in the modern sense of the word. The question of the possibility of using the death penalty was relevant to one degree or another throughout the entire existence of the state. At the same time, it is one of the most pressing issues not only in criminal law and jurisprudence but in many other sciences, such as philosophy, psychology, sociology, etc.

The death penalty as a political and legal institution, characteristic of the historical and state development of all countries and peoples, has always been of interest from a scientific point of view. At the same time, many researchers have touched on various aspects of this problem in their writings, but a unified approach to understanding the essence of this phenomenon has not yet been developed in all its dimensions: historical, political, legal, moral, and ethical, national-state, etc. The death penalty institution is one of the most heatedly discussed both from the point of view of criminal law science and practice, and compliance with the principles of constitutional and international law (Lantin, 2017). Despite the apparently obvious tendency to limit the death penalty in the modern world, the issue of capital punishment is not only relevant for modern public and legislative policy, law enforcement practice and legal science, but also reveals increasingly more new aspects and relationships with other areas of the legal system and public life. Currently, all states of the world can be conditionally divided into 4 main groups: 1) states that have completely excluded the death penalty from their legislation (for example, Germany, Sweden, etc.); 2) states that have retained the possibility of using the death penalty in wartime (for example, Great Britain); 3) states that formally retain the death penalty in law, but do not put it into practice (for example, Russia); 4) states that preserve the death penalty in law and actively apply it in practice (for example, China, Iran, and the USA) (Lantin, 2017).

The main debate issues related to the death penalty are the following: the existence of the right of the state to deprive of life; the political and legal significance of this type of punishment, and, accordingly, the expediency of its presence in the state legal system. This also includes the possibility of making irreversible judicial errors, requiring the replacement of the death penalty with alternative penalties, and a number of others. Of particular importance in this regard is the study of the evolution, current state and development trends of the death penalty institution in the United States due to the variety of legislative frameworks for its application and the relevant judicial practice. This is in contrast to European states that not only abolished the death penalty but also consider a prohibition on the use of the death penalty execution as an indispensable attribute of a modern democratic legal state.

• The complexity and inconsistency of the state doctrine and political and legal practice in relation to the death penalty is complemented by the extreme decentralization of North American federalism. This puts the state criminal and penal legislation as well as the formation and functioning of the state judicial system in dependence from the diversity of states’ legislative initiatives (Zavatta, 2017). The effect of these factors, combined with significant differences in the political, social, and legal traditions of different states, leads to an extremely diverse practice of the death penalty institution in the modern US (Garrett et al., 2017). This makes it difficult to discuss and adopt a unified federal socio-legal and ethical doctrine regarding the admissibility of the death penalty.
• In many states, as studies at Columbia University have shown, their so-called “death belts” have formed, where a conservative-minded population actively advocates the death penalty (Maratea, 2019). The main trend is the same as in the country as whole ‑ death sentences are passed mainly in the south of these states. It is no coincidence that in the US, the practice of using the death penalty is called the “geographical lottery” (Maratea, 2019).
• The goals of criminal repression should not be achieved by any means, not at any cost. In a state governed by the rule of law, the fight against crime must be conducted through democratic and, if possible, humane methods.

Over 60 countries still use the death penalty for various categories of crimes. These include many former republics of the Soviet Union, Cuba, a number of Asian countries (Afghanistan, Bangladesh, Vietnam, India, Indonesia, China, DPRK, Republic of Korea, Singapore, Pakistan, Japan, etc.), a whole group of African states (Sudan, Uganda, Nigeria, etc.), and almost all Arab states (Egypt, Libya, Jordan, Iran, Iraq, Syria, etc.) (Fletcher, 2014). Some of these countries use the death penalty particularly intensively. Among them, there are Iraq, Iran, China, North Korea, Sudan, Nigeria, Saudi Arabia, and the US. It is surprising that the world flagship of democratic values and human rights ‑ the US is evidently on par with states and discriminatory regimes that severely violate human rights. Moreover, the US occupies one of the leading places on this shameful list.

• There are the traditional arguments against the death penalty (the possibility of an irreparable judicial error, immorality, cruelty, significant expenditures of public funds) in the US. However, at the same time, an indication of a steady and widespread practice of violating the constitutional principle of equality gains increasing significance. This is important as it is about the implementation of such a fundamental human right as the right to life.
  • The global trend towards the humanization of punishment and the complete rejection of the death penalty in the US today has not found full recognition. The US judicial system is arbitrary and inhumane today.
  • It was assumed that lethal injection would be a more humane method of executing the death sentence than an electric chair or gas chamber. However, the effect of the injected drugs caused agony in many prisoners for several hours (Petersen, 2016). In search of an alternative to the aforementioned humane method of execution, the states of America attempted to use the inhalation of nitrogen method. The states of Oklahoma, Alabama, and Mississippi have begun to use nitrogen for executions and have developed protocols for its use. This method has been studied neither by theoreticians nor practitioners; therefore, the question arises whether the newly introduced method of executing death sentences will lead to new problems. There is only a small part of information about a person’s death from nitrogen (Williams, 2012). Such “experiments” are in essence no different from the experiments of the Nazis conducted in the concentration camps of Nazi Germany.
• There is a relationship between racial discrimination and the death penalty institution in the US. As the materials of various studies show, the maximum correlation between the number of death sentences and the number of the executed due to racial factors is more than convincing evidence of racial inequality, disgracing the criminal justice system not only in the eyes of Americans but also in the face of the world community (Maratea, 2019).
  • An analysis of official statistics and the latest American scientific research reveals the main aspects of racial discrimination within the framework of the death penalty issue. This includes the racial identity of the victim of the crime, the race of the convicted person, the vast majority of whites among federal and state prosecutors, and the jury’s biased attitude to the accused African-Americans. The fact that 98% of the attorneys in the states using the death penalty are white and only 1% are African-Americans has a great influence on the practice of imposing the death penalty (Palmer, 2013). According to the researchers, a small number of “aggressive prosecutors” who are ready to apply capital punishment whenever possible are responsible for many death sentences (Bright, 2015, p. 680-681) Thus, from 1976 to 2014, in Harris County alone (including Houston), which is called the “capital of the death penalty” in the US, 122 people were sentenced to death – this is more than in any other state (with the exception of Texas) (Petersen, 2016).
    The main methods, in this case, are the appointment of weak, incompetent lawyers as advocates and the exclusion of the representatives of racial and national minorities from the jury. If a lawsuit takes place in a county with a significant representation of racial and national minorities, officials seek to prove the possibility of federal jurisdiction to get the same result: a white jury for an African American (Petersen, 2016).
  • Despite certain trends in the restriction of the death penalty, modern legal regulation and application practice demonstrate the persistence of the negative aspects of this institution’s development (Richards & Smith, 2014). One of the most important problems remains the preservation of racial prejudice and, as a result, racial discrimination in this area. The minimal representation of racial minorities in the structure of the prosecutor’s office, courts, and jurors entails the formation of a special environment of “court as a white space.” This, in turn, leads to obvious imbalances in the statistics of the ratio of white and non-white Americans as victims and those sentenced to death criminals (Phillips, 2012).
    As far back as 1990, the US Bureau of General Statistics submitted to Congress the results of 28 detailed studies that clearly indicated the presence of “a specific model indicating racial discrimination at all stages of the legal process” (Palmer, 2013, p. 56). More recent studies indicate a continuing trend – African-Americans make up 36% of all executed in the last 30 years and 43% of those on the death row, although the share of African-Americans among the country’s population does not exceed 12% on average (Petersen, 2016). It is notable that 87% of all blacks executed in the US are convicted of killing white people, although the number of people killed among the white population of the country and the black population is almost the same (Petersen, 2016).
  • The fundamental problem of the use of the death penalty in the US is the lack of the equal treatment of the residents of various states and representatives of different racial and national groups. This fundamental problem can hardly be solved under conditions of maintaining significant decentralization in the system of criminal law regulation and systemic institutionalized differences in the legal status of the representatives of various racial and national groups (especially African Americans and Latin Americans) in the US criminal law system (Bright, 2015).
  • The absence of a systemic struggle in the modern US against institutionalized forms of racial discrimination in such an existential sphere as the use of the death penalty makes this institution inconsistent with the basic principles of humanity, equality, and justice of the 21st century. It requires the abolition of the death penalty or the establishment of clear federal standards for its application. The most important step in combating racial and national discrimination should be the unification of the use of the death penalty at the federal level. Such unification can be carried out in three forms – amending the US Constitution, enacting federal law and changing the case-law of the US Supreme Court.
    • The general preventive role of the death penalty is obvious.
    • Supporters of the use of the death penalty believe that its generally preventive role as a form of punishment is quite large (Hnidka, 2016). The use of the death penalty for crimes of special gravity is consistent with the achievement of the goal of punishment, as the restoration of social justice. The meaning of this is that pity for executioners becomes cruelty towards victims (Hnidka, 2016).
    • The decision on the complete abolition of the death penalty depends on a number of factors, including public opinion, which indicates the unwillingness of American society to take such a humane measure as life imprisonment with a complete abolition of the death penalty (Palmer, 2013). In view of the exceptional nature of the death penalty and its application for particularly grave crimes that encroach on life to achieve such a goal as restoring social justice, it seems unreasonable to put political interests above universal human interests (Garfield, 2015).

The use of the death penalty is necessitated by an uncompromising fight against the most dangerous crimes. It is not an act of intention for a committed crime, but it pursues the goal of general and special crime prevention (Richards & Smith, 2014).

• Back in the 70s and 80s of the last century, the US abandoned the idea of rehabilitating prisoners, as “the vast majority of offenders again and again pass through the “revolving doors” of the judicial system” (Garfield, 2015, p 84) Accordingly, in the 90s, they extended the death penalty to 50 federal crimes against the most dangerous criminals: terrorists, members of organized criminal groups, pathologically aggressive and situationally aggressive people, and sexual maniacs (Garfield, 2015).
• Defending the right of a malicious killer to life, some scholars cite the constitutional provision that human life is the greatest value, forgetting that the lives of those people who were brutally killed by a criminal are also a value.
• Given the inability of the state to combat the increasing crime rate and the activities of criminal communities and serial killers, the death penalty is the only measure that, by virtue of its preventive influence, is capable of protecting both a specific person and society as a whole from mass criminal aggression.
• Capital punishment for the most serious crimes against life is undoubtedly entitled to execution. Its application has a serious deterrent effect, and it plays an important role in the system of measures to combat crime. The moratorium on the application of capital punishment today does not correspond to the ideas of the majority of citizens about justice (Zavatta, 2017).
• Waiting for death is a terrible punishment in itself; it is frightening to imagine what a person going to death feels, and, perhaps, this expectation to some extent compensates for the suffering that the criminal inflicts on their victim.

Many jurists say that the death penalty is a deterrent to people who have committed a crime (Zavatta, 2017). However, in many countries, where the death penalty is used, the number of crimes does not change (Zavatta, 2017). Therefore, it is possible to say that the death penalty will not stop the crimes committed, and, at the moment, there is only one alternative to the death penalty – life imprisonment. The death penalty as such is not a punishment. It is revenge, instant retaliation, but life imprisonment is truly a punishment. Statements about the possibility of intimidating potential criminals with death are not confirmed in practice, except for subjective views. However, they hide behind the desire for retaliation, murder, an imaginary purification of society, a spectacle, and not the punishment of a criminal, because life imprisonment without the right to release has a less effective impact on the human life.

• The inhumanity of the death sentence is determined by the fact that revenge and other possible motives of punishment should not be taken as the basis of relations in society. Such punishments do not pursue any goals other than intimidation, retribution, and, thus, society is slipping into medieval morality and worldview. The death penalty is a sign of a culture of violence, not a way to get away from it; it is extremely offensive to human dignity (Palmer, 2013). The death penalty, in its essence, excludes the possibility of rehabilitation and reconciliation; it provokes the solution of complex problems of humankind in primitive ways, instead of contributing to an understanding of their causes and the search for constructive approaches. In addition, the death penalty prolongs the suffering of the relatives of the victim and causes the same suffering to the relatives of the murdered convict. Additionally, it requires resources and energy that should be directed at combatting violent crimes and helping those who have suffered from them.
  Many politicians continue to believe that they will be able to solve acute social and political problems by executing several or even hundreds of prisoners. Many people in different parts of the country still do not realize that the death penalty does not make society more secure, but only hardens it.
• Even if it is recognized that the fact of impending punishment is taken into account by some people when committing a crime, then this can, apparently, be discussed only for those crimes that are preceded by a certain calculation, weighing the pros and cons, that is, the struggle of motives. This may be applied to state crimes, theft and other property, economic crimes, and abuse of service. As for the murder, the most serious cases of which are punishable by death, the so-called struggle of motives before its commission is quite rare. According to conclusions made during many years of criminological observations, the proportion of premeditated killings ranges from 5-10% of the total number of acts committed (Palmer, 2013). If to add to this the fact that about 80% of murders are committed in a state of alcohol or drug intoxication, then it is possible to assume that this crime is more likely to be situational and does not involve ‘sober thinking’ about the impending consequences (Lantin, 2017). Maybe that is why the English scientist N. Walker came to a conclusion that both the presence and absence of the death penalty have no effect on the rate of killings in countries (Williams, 2012). Researchers point out that most often, crimes are committed in a state of excitement, under the influence of alcohol or a drug; some criminals are people who are unbalanced or not quite mentally healthy, and, therefore, in such cases, the death penalty cannot play the role of a deterrent to crime (Williams, 2012).
  Studies at the turn of the 21st century again noted the absence of any statistical signs indicating a deterrent effect of the death penalty (Zavatta, 2017). Moreover, a study conducted by the New York Times in late 2000 showed that over the past twenty years, murder rates in states where the death penalty has not been applied have been 48 to 101% lower than in the states where death sentences is enforced; it also showed that the homicide rate in 12 states that do not use the death penalty is 1.7 times lower than the average homicide rate in the US (Palmer, 2013).
• The European standard for the abolition of the death penalty is acceptable. It is useful to take further steps in this direction, forming an appropriate law enforcement practice, increasing the legal consciousness of citizens and influencing the criminal situation in order to reduce crime, especially grave crimes (Hnidka, 2016).

Since the justice system created by people is not immune to errors, it is, thus, impossible to completely exclude the risk of conviction for the execution of innocent people.

• The risk of a fatal error and the execution of an innocent person is rather real – and this happens more often than one can imagine (Hnidka, (2016). In addition, innocent people can be executed not only as a result of a miscarriage of justice but also purposefully: the death penalty in some cases is an infamous way to get rid of political opponents.
• In recent years, research has called for the rejection of the generally accepted view that unfair convictions are comparatively rare. There are many lawyers and judges who confidently state that the number of erroneous sentences is negligible, as the authors of some studies write (Bright, 2015). The Supreme Court member Antonin Scalia, for example, cited data from a 2006 article in the New York Times alleging that particularly serious felonies account for 0.027 errors; in other words, 99.973% of sentences are made correctly (Bright, 2015). However, in addition to the fact that these data are incorrect, even in the case of a negligible percentage of erroneous death sentences, it is about human life.
  From 1973 to 2015, approximately 156 people were released from death row in the US with the removal of charges (Bright, 2015). In some cases, the introduction of DNA tests has contributed to this. Some of them spent even several decades on death row. At the same time, some of them were found posthumously innocent. Moreover, one cannot ignore the fact that part of the executions was carried out without due evidence of guilt.

On December 18, 2007, the United Nations General Assembly adopted resolution 62/149 calling for a worldwide moratorium on executions. The resolution was adopted by an overwhelming majority of votes: 104 UN member states voted in favor, 54 countries voted against, and 29 abstained (Williams, 2012).

• The UN resolution on the moratorium on executions is not a binding document, but it has significant moral and political weight. It is a reminder of the obligation to achieve the abolition of the death penalty, which the UN member states have entrusted. In addition, it is an important tool to help countries where the death penalty still exists to change their views on the use of this type of punishment. By retaining the death penalty, the US is undermining its authority as a defender of human rights around the world.
• The death penalty is the ultimate form of depriving a person of his or her rights. It represents a deliberate and cold-blooded deprivation of human life by the state in the name of the so-called justice. It violates the right to life proclaimed in the Universal Declaration of Human Rights (Hnidka, 2016). This is a cruel, inhuman, and degrading form of punishment, whatever form it takes.

Overall implications and conclusion

On the one hand, there is a gradual reduction in the number of states that de jure or de facto apply the death penalty; annually over the past years, abolitionist bills have been introduced in 12-17 states (in the first half of 2016, in nine states) (Davis & Snell, 2018). On the other hand, there are regressive movements that advocate for the use of the death penalty or its application, and, in some cases, restoring capital punishment (Zavatta, 2017). The Anglo-Saxon legal family respects the human right to life, guaranteeing the abolition of the death penalty, and only the US is an exception. It is clear that, in deciding on the death penalty, one should turn not only to the experience of the EU, which, to a certain degree, may be alien to Americans, but also to the legacy of the founding fathers. In this case, it seems possible to achieve a public understanding of the inadmissibility of the death penalty at the deepest level of public consciousness.

References

Bright, St. (2015). The role of race, poverty, intellectual disability, and mental illness in the decline of death penalty. University of Richmond Law Review,49(3), 671-692.

Davis, E., & Snell, T. (2018). Capital Punishment, 2016. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

Fletcher, W.A. (2014). Our broken death penalty. New York University Law Review, 89(3), 805-829.

Garrett, B. L., Jakubow, A. & Desai, A. (2017). The American Death Penalty Decline. Journal of Criminal Law & Criminology, 107(4), 561-636. Web.

Garfield, D. K. (2015). The death penalty: Capital punishment in the USA. CreateSpace Independent Publishing Platform. Web.

Hnidka, R. (2016). European perspective and legal framework of death penalty. Izzivi Prihodnosti, 1(4), 159-171.

Lantin, R. G. (2017). The death penalty debate: A look at the main arguments. International Journal of Humanities and Social Science, 7(3), 43-47.

Maratea, R. J. (2019). Killing with prejudice: Institutionalized racism in American capital punishment. NYU Press. Web.

Palmer, L. (2013). The death penalty in the United States: A complete guide to federal and state laws. McFarland. Web.

Petersen, N. (2016). Examining the sources of racial bias in potentially capital cases: A case study of police and prosecutorial discretion. Race and Justice, 7(1), 7-34. Web.

Phillips, S. (2012). Continued racial disparities in the capital of capital punishment: the Rosenthal era. Houston Law Review, 50, 131-155.

Richards, T. N., & Smith, D. (2014). Current issues and controversies in capital punishment. American Journal of Criminal Justice, 40(1), 199-203.

Williams, K. (2012). Most Deserving of Death?: An Analysis of the Supreme Court’s Death Penalty Jurisprudence. Routledge.

Zavatta, L. (2017). Controversial theories on the death penalty. Beijing Law Review, 08(02), 212-225.