Capital punishment in the United States 美国的死刑（1）

 

Capital punishment in the United States can be administered for a wide variety of crimes ranging from drug trafficking crimes that result in a person's death, to aggravated murder. However, in practice, it is reserved only for homicide-related crimes including aggravated murder, felony murder, and contract killing. Capital punishment was a penalty at common law, for many felonies, and was enforced in all the American colonies prior to the Declaration of Independence. The death penalty is currently a legal sentence in 33 states and in the federal civilian and military legal systems. The methods of execution and the crimes subject to the penalty vary by jurisdiction and have varied widely throughout time, though the most common method in recent decades has been lethal injection. There were 37 executions in the United States in 2008, the lowest number since 1994 (largely due to lethal injection litigation revolving around a now resolved constitutional question). There were 43 executions in 2011, all by lethal injection. In 2011, 13 states executed 43 inmates; in 2010, 46 people were executed.

 

Capital punishment is a contentious social issue in the US. While historically a large majority of the American public has favored it in cases of murder, the extent of this support has varied over time. There has long been strong opposition to capital punishment in the United States from certain sectors of the population, and as of 2012, seventeen states (as well as Washington, D.C.) have banned its use. While the level of public support today is lower than it was in the 1980s and 1990s (reaching an all-time high of 80 percent in 1994), it has been largely static over the past decade. A 2011 Gallup poll showed 61 percent of Americans favored it in cases of murder while 35 percent opposed it, the lowest level of support recorded by Gallup since 1972. When life in prison without parole is listed as a poll option, the public is more evenly divided; a 2010 Gallup poll found 49 percent preferring the death penalty and 46 percent favoring life without parole.

 

 

History

The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall, who was executed by firing squad at the Jamestown colony for allegedly spying for the Spanish government.

 

The Espy file, compiled by M. Watt Espy and John Ortiz Smykla, lists 15,269 people executed in the United States and its predecessor colonies between 1608 and 1991. In the period from 1930 to 2002, 4,661 executions were carried out in the U.S, about two-thirds of them in the first 20 years. Additionally, the United States Army executed 135 soldiers between 1916 and 2012.

 

The largest single execution in United States history was the hanging of 38 Dakota people convicted of murder and rape during the brutal Dakota War of 1862. They were executed simultaneously on December 26, 1862, in Mankato, Minnesota. A single blow from an axe cut the rope that held the large four-sided platform, and the prisoners (except for one whose rope had broken and who had to be re-hanged) fell to their deaths. The second-largest mass execution was also a hanging: the execution of 13 African American soldiers for taking part in the Houston Riot in 1917. The largest non-military public mass execution in one of the original thirteen colonies occurred in 1723, when 26 convicted pirates were hanged in Newport, Rhode Island by order of the Admiralty Court.

 

States without capital punishment

Abolition before statehood

Historically, several states have always been without capital punishment, the earliest being Michigan, which has not conducted an execution since it entered the Union. (However, one federal execution occurred in Michigan in 1938.) Shortly after attaining statehood, Michigan abolished the death penalty for ordinary crimes, becoming the first English-speaking government in the world to abolish the death penalty for all crimes except treason. In 1963, Michigan amended its constitution to prevent later attempts at reinstatement. Every attempt through referendums and voter initiatives to reinstate the penalty since 1963 has failed, the latest being a failed attempt at a referendum in 2004.

 

The newest two states, Alaska and Hawaii, abolished the death penalty prior to statehood. Alaska however executed eight men during the earlier territorial government (1900–1959).

 

Other early repeals

Other states with long tenures of no death penalty include Wisconsin (with the distinction of being the only state to perform a single state-level execution in its history, and also the first to abolish the death penalty for all crimes), Rhode Island (although later reintroduced, it was unused and abolished again), Maine, North Dakota, Minnesota, West Virginia, Iowa, andVermont. The District of Columbia has also abolished the death penalty; it was last applied there in 1957. One state, Oregon, abolished the death penalty through an overwhelming majority in a 1964 public referendum, but reinstated it in a 1984 joint death penalty/life imprisonment referendum by an even higher margin, after a similar 1978 referendum succeeded but was not implemented due to judicial rulings.

 

Recent abolition

The following seventeen U.S. states do not currently have an enforceable death penalty statute:

   Alaska

   Hawaii

   Illinois

   Iowa

   Maine

   Michigan

   Minnesota

   New Jersey

   North Dakota

   Rhode Island

   Vermont

   West Virginia

   Wisconsin

   New York

   Massachusetts

   Connecticut

   New Mexico

 

The District of Columbia also has no death penalty. The current law in Arkansas was overturned on separation of powers issues but the death penalty was not ruled unconstitutional.

 

New Mexico may yet execute two condemned inmates sentenced prior to abolition. Connecticut may also execute eleven inmates sentenced before abolition. In Illinois, where recent abolition legislation took effect on July 1, 2011, all former death row inmates have been moved to regular jail cells.

 

As of 1995, the United States Supreme Court ruled the televised executions of prisoners unconstitutional.

 

Only four of the above states have legislatively abolished the death penalty in the so-called "modern era of capital punishment" (that is, post-Gregg v. Georgia), and only two have attained de facto abolition through their state judiciaries; the remainder either abolished capital punishment before the moratorium was lifted, or had statutes that were struck down and did not reinstate the death penalty.

 

In 2007, New Jersey became the first state to repeal the death penalty in the modern system of capital punishment, followed by New Mexico in 2009 (though not retroactively, permitting the future execution of two inmates on the state's death row), and Illinois in 2011 (with the Governor commuting the death sentences of all death row inmates). However, in states with a large death row population and regular executions, including Texas, the death penalty remains strongly in the landscape and is unlikely to end any time soon.

 

Four states in the modern era, Nebraska in 2008, New York and Kansas in 2004, and Massachusetts in 1984, had their statutes ruled unconstitutional by state courts. The death rows of New York and Massachusetts were disestablished. Of the four states, only Nebraska has performed executions since the constitutionality of capital punishment was affirmed by the Supreme Court in 1976, the four states having done so last in 1997, 1963, 1965, and 1947, respectively. In New York and Massachusetts attempts to restore the death penalty were unsuccessful, while Kansas successfully appealed State v. Kleypas, the Kansas Supreme Court decision that declared the state's death penalty statute unconstitutional, to the U.S. Supreme Court – and death sentences continue to be sought. New York had previously abolished the death penalty temporarily, in 1860. Nebraska has performed three executions since 1976, all in the 1990s; its statute has been ineffective since February 8, 2008, when the method used, electrocution, was ruled unconstitutional by the Nebraska Supreme Court. However, Nebraska since enacted a bill providing executions by lethal injection.

 

On April 5, 2012, the State Senate of Connecticut passed a bill (20 to 16) that would abolish the death penalty for future crimes. The House had passed similar bills in earlier sessions, but they had always failed to win approval in the Senate. The bill was later passed in the House on April 11 (86 to 62), and on April 25, Governor Dan Malloy signed the bill. Connecticut has executed only one person in the last 50 years. Like New Mexico's, Connecticut's repeal of capital punishment is not retroactive, and the 11 inmates currently on the state's Death Row may still be executed, and those convicted of capital crimes committed before the date in which the repeal went into effect may still be subject to capital punishment.

 

The only jurisdictions with constitutional death penalty statutes that have not performed an execution since 1976 are New Hampshire, Kansas, and the United States military, although all have populated death rows. In addition, New Jersey did not execute any prisoners between 1976 and the abolition of the death penalty in 2007.

 

Puerto Rico

The U.S. territory of Puerto Rico has no death penalty. Puerto Rico instituted a four-year moratorium on the use of the death penalty in 1917. The last execution took place in 1927 and the Puerto Rican legislature abolished the death penalty in 1929.

 

Puerto Rico's constitution expressly forbids capital punishment, stating "The death penalty shall not exist", setting it apart from all US states and territories other than Michigan, which also has a constitutional prohibition (eleven other states and the District of Columbia have abolished capital punishment through statutory law); however, capital punishment is still applicable to offenses committed in Puerto Rico, if they fall under the jurisdiction of the federal government, though federal death penalty prosecutions that have occurred in Puerto Rico have generated significant controversy.

 

Suspension by Supreme Court

Capital punishment was suspended in the United States from 1972 through 1976 primarily as a result of the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972). The last pre-Furman execution was that of Luis Monge on June 2, 1967. In this case, the court found that the death penalty was being imposed in an unconstitutional manner, on the grounds of cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. The Supreme Court has never ruled the death penalty to be per se unconstitutional.

 

In Furman, the United States Supreme Court considered a group of consolidated cases. The lead case involved an individual convicted under Georgia's death penalty statute, which featured a "unitary trial" procedure in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment.

 

In a five-to-four decision, the Supreme Court struck down the imposition of the death penalties in each of the consolidated cases as unconstitutional. The five justices in the majority did not produce a common opinion or rationale for their decision, however, and agreed only on a short statement announcing the result. The narrowest opinions, those of Byron White and Potter Stewart, expressed generalized concerns about the inconsistent application of the death penalty across a variety of cases but did not exclude the possibility of a constitutional death penalty law. Stewart and William O. Douglas worried explicitly about racial discrimination in enforcement of the death penalty. Thurgood Marshall and William J. Brennan, Jr. expressed the opinion that the death penalty was proscribed absolutely by the Eighth Amendment as "cruel and unusual" punishment.

 

Though many observers expected few, if any, states to readopt the death penalty after Furman, 37 states did in fact enact new death penalty statutes which attempted to address the concerns of White and Stewart. Some of the states responded by enacting "mandatory" death penalty statutes which prescribed a sentence of death for anyone convicted of certain forms of murder (White had hinted such a scheme would meet his constitutional concerns in his Furman opinion).

 

Other states adopted "bifurcated" trial and sentencing procedures, with various procedural limitations on the jury's ability to pronounce a death sentence designed to limit juror discretion. The Court clarified Furman in Woodson v. North Carolina, 428 U.S.280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976), 431 U.S. 633 ( 1977), which explicitly forbade any state from punishing a specific form of murder (such as that of a police officer) with a mandatory death penalty.

 

Capital punishment resumed

In 1976, contemporaneously with Woodson and Roberts, the Court decided Gregg v. Georgia, 428 U.S. 153 (1976) and upheld a procedure in which the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides the defendant's guilt; if the defendant is innocent or otherwise not convicted of first-degree murder, the death penalty will not be imposed. At the second hearing, the jury determines whether certain statutory aggravating factors exist, and whether any mitigating factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty – either death or life in prison, either with or without parole.

 

The 1977 Coker v. Georgia decision barred the death penalty for rape, and, by implication, for any offense other than murder. The current federal kidnapping statute, however, may be exempt because the death penalty applies if the victim expires in the perpetrator's custody, not necessarily by his hand, thus stipulating a resulting death, which was the wording of the objection. In addition, the federal government retains the death penalty for such non-murder offenses as treason, espionage and crimes under military jurisdiction; there has been no challenge to these statutes as of 2007.

 

Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. But the pace was quite halting due to use of litigation tactics which involved filing repeated writs for habeas corpus, which succeeded for many in delaying their actual execution for many years. Although hundreds of individuals were sentenced to death in the U.S. during the 1970s and early 1980s, only ten people besides Gilmore (who had waived all of his appeal rights) were actually executed prior to 1984.

 

The United States Supreme Court, though, has placed two major restrictions on the use of the death penalty. First, the Supreme Court case of Atkins v. Virginia, decided June 20, 2002, held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Generally, a person with an IQ below 70 is considered to be mentally retarded. Prior to this decision, between 1984 and 2002 forty-four mentally retarded inmates were executed.

 

Second, in 2005 the Supreme Court's decision in Roper v. Simmons, 543 U.S. 551 (2005), abolished executions for persons under the age of 18 at the time of the crime.

New Mexico repealed its death penalty statute on March 17, 2009, becoming the second state (after New Jersey) to abolish the death penalty since executions resumed in 1976 (However, the only prisoner executed after 1976 wanted to be executed). The law, signed by Governor Bill Richardson, took effect on July 1, 2009 and replaces the death penalty with a life sentence without the possibility of parole. The law, though, is not retroactive – inmates currently on New Mexico's Death Row and persons convicted of capital offenses committed before this date may still be sentenced to death under New Mexico's pre-existing death penalty statute. Connecticut abolished its death penalty on April 25, 2012. Like New Mexico, the repeal is not retroactive, leaving 11 inmates on death row. A bill to abolish the death penalty was vetoed by former governor M. Jodi Rell in June 2009 after it easily passed in the General Assembly. Current governor Dan Malloy indicated he would sign a bill abolishing the death penalty if it was passed by the General Assembly.

 

Possibly in part due to expedited federal habeas corpus procedures embodied in the Antiterrorism and Effective Death Penalty Act of 1996, the pace of executions has picked up. Since the death penalty was reauthorized in 1976, 1,280 people have been executed, almost exclusively by the states, with most occurring after 1990. Texas has accounted for over a third of modern executions (and over four times as many as Virginia, the state with the second-highest number); California has the greatest number of prisoners on death row, but has held relatively few executions. See the table for executions and death row inmates by jurisdiction.

 

 

New concerns post-Furman

In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, “Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions," surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions remain marked by local “idiosyncrasies,” suggesting they are not in keeping with the spirit of the Supreme Court’s directive. This means that “the very types of unfairness that the Supreme Court sought to eliminate” may still “infect capital cases.” Wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 “special circumstances,” making nearly all premeditated murders potential capital cases. The 37 death penalty states have varying numbers and types of “death qualifiers” – circumstances that allow for capital charges. The number varies from a high of 34 in California to 22 in Colorado and Delaware to 12 in Texas, Nebraska, Georgia and Montana. The study's authors call for reform of state procedures along the lines of reforms in the federal system, which the U.S. Department of Justice initiated with a 1995 protocol. Crimes subject to the death penalty vary by jurisdiction. All jurisdictions that use capital punishment designate the highest grade of murder a capital crime, although most jurisdictions require aggravating circumstances. Treason against the United States, as well as treason against the states of Arkansas, California, Colorado, Georgia, Louisiana, Mississippi, Missouri, and Washington are capital offenses.

 

Other capital crimes include: the use of a weapon of mass destruction resulting in death, espionage, terrorism, certain violations of the Geneva Conventions that result in the death of one or more persons, and treason at the federal level; aggravated rape in Louisiana, Florida, and Oklahoma; extortionate kidnapping in Oklahoma; aggravated kidnapping in Georgia, Idaho, Kentucky and South Carolina; aircraft hijacking in Alabama; drug trafficking resulting in a person's death in Florida; train wrecking which leads to a person's death, and perjury which leads to a person's death in California.

 

Additionally, the Uniform Code of Military Justice allows capital punishment for a list of offenses during wartime including: desertion, mutiny, spying, and misconduct before the enemy. In practice, no one has been executed for a crime other than murder or conspiracy to murder since James Coburn was executed for robbery in Alabama on September 4, 1964.

 

On June 25, 2008 in Kennedy v. Louisiana, the U.S. Supreme Court ruled against Louisiana's death penalty for child rapists, saying "there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons." The Court went further, ruling out the death penalty for any crime against an individual (as opposed to "offenses against the state," such as treason or espionage, or crimes against humanity) "where the victim’s life was not taken."

 

As of November 2008, there is only one person on death row facing capital punishment who has not been convicted of murder. Demarcus Sears remains under a death sentence in Georgia for the crime of "Kidnapping With Bodily Injury." Sears was convicted in 2006 for the kidnapping and bodily injury of victim Gloria Ann Wilbur. Wilbur was kidnapped and beaten in Georgia, raped in Tennessee, and murdered in Kentucky. Sears was never charged with the murder of Wilbur in Kentucky, but was sentenced to death by a jury in Georgia for "Kidnapping with Bodily Injury".

 

Several people who were executed have received posthumous pardons for their crimes. For example, slave revolt was a capital crime, and many who were executed for that reason have since been posthumously pardoned.

 

Congress acted defiantly toward the Supreme Court by passing the Drug Kingpin Act of the late 1980's and the Federal Death Penalty Act of 1994 that made roughly fifty crimes punishable by death, including crimes that do not always involve the death of someone. Such non-death capital offenses include treason, espionage (spying for another country), high-level drug trafficking, and sabotaging the national economy. Since no one, as of yet, has been sentenced to death for such non-death capital offenses, the Supreme Court has not ruled on their constitutionality.

 

 

Legal process

The legal administration of the death penalty in the United States is complex. Typically, it involves four critical steps: (1) sentencing, (2) direct review, (3) state collateral review, and (4) federal habeas corpus. Recently, a narrow and final fifth level of process – (5) the Section 1983 challenge – has become increasingly important. (Clemency or pardon, through which theGovernor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.) The number of new death sentences handed down peaked in 1995–1996 (309). There were 104 new death sentences handed down in 2010, the lowest number since 1973 (44).

 

Direct review

If a defendant is sentenced to death at the trial level, the case then goes into a direct review. The direct review process is a typical legal appeal. An appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether the decision was legally sound or not. Direct review of a capital sentencing hearing will result in one of three outcomes. If the appellate court finds that no significant legal errors occurred in the capital sentencing hearing, the appellate court will affirm the judgment, or let the sentence stand. If the appellate court finds that significant legal errors did occur, then it will reverse the judgment, or nullify the sentence and order a new capital sentencing hearing. Lastly, if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty, a rarity, then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible. About 60 percent survive the process of direct review intact.

 

State collateral review

At times when a death sentence is affirmed on direct review, it is considered final. Yet, supplemental methods to attack the judgment, though less familiar than a typical appeal, do remain. These supplemental remedies are considered collateral review, that is, an avenue for upsetting judgments that have become otherwise final. Where the prisoner received his death sentence in a state-level trial, as is usually the case, the first step in collateral review is state collateral review. (If the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus.) Although all states have some type of collateral review, the process varies widely from state to state. Generally, the purpose of these collateral proceedings is to permit the prisoner to challenge his sentence on grounds that could not have been raised reasonably at trial or on direct review. Most often these are claims, such as ineffective assistance of counsel, which require the court to consider new evidence outside the original trial record, something courts may not do in an ordinary appeal. State collateral review, though an important step in that it helps define the scope of subsequent review through federal habeas corpus, is rarely successful in and of itself. Only around 6 percent of death sentences are overturned on state collateral review. In 2010, the death sentences of 53 inmates were overturned as a result of legal appeals or high court reversals.

 

Federal habeas corpus

After a death sentence is affirmed in state collateral review, the prisoner may file for federal habeas corpus, which is a unique type of lawsuit that can be brought in federal courts. Federal habeas corpus is a species of collateral review, and it is the only way that state prisoners may attack a death sentence in federal court (other than petitions for certiorari to the United States Supreme Court after both direct review and state collateral review). The scope of federal habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996, which restricted significantly its previous scope. The purpose of federal habeas corpus is to ensure that state courts, through the process of direct review and state collateral review, have done at least a reasonable job in protecting the prisoner's federal constitutional rights. Prisoners may also use federal habeas corpus suits to bring forth new evidence that they are innocent of the crime, though to be a valid defense at this late stage in the process, evidence of innocence must be truly compelling.

 

Review through federal habeas corpus is narrow in theory, but it is important in practice. According to Eric Freedman, 21 percent of death penalty cases are reversed through federal habeas corpus.

 

James Lieberman, a professor of law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." Similarly, a study by Ronald Tabek in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47 percent of the habeas petitions filed by death row inmates were granted." The different numbers are largely definitional, rather than substantive. Freedam's statistics looks at the percentage of all death penalty cases reversed, while the others look only at cases not reversed prior to habeas corpus review.

 

A similar process is available for prisoners sentenced to death by the judgment of a federal court.

 

Section 1983 contested

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner is ordinarily only allowed one suit for habeas corpus in federal court. If the federal courts refuse to issue a writ of habeas corpus, an execution date may be set. In recent times, however, prisoners have postponed execution through a final round of federal litigation using the Civil Rights Act of 1871 — codified at 42 U.S.C. § 1983 — which allows people to bring lawsuits against state actors to protect their federal constitutional and statutory rights.

 

Traditionally, Section 1983 was of limited use for a state prisoner under sentence of death because the Supreme Court has held that habeas corpus, not Section 1983, is the only vehicle by which a state prisoner can challenge his judgment of death. In the 2006 Hill v. McDonough case, however, the United States Supreme Court approved the use of Section 1983 as a vehicle for challenging a state's method of execution as cruel and unusual punishment in violation of the Eighth Amendment. The theory is that a prisoner bringing such a challenge is not attacking directly his judgment of death, but rather the means by which that the judgment will be carried out. Therefore, the Supreme Court held in the Hill case that a prisoner can use Section 1983 rather than habeas corpus to bring the lawsuit. Yet, as Clarence Hill's own case shows, lower federal courts have often refused to hear suits challenging methods of execution on the ground that the prisoner brought the claim too late and only for the purposes of delay. Further, the Court's decision in Baze v. Rees, upholding a lethal-injection method used by many states, has drastically narrowed the opportunity for relief through 1983.