Should We Resume Capital Punishment Federally?
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KEY SOURCES
Department of Justice
American Law and Economics Review
Supreme Court: Gossip v. Gross
Journal of Criminal Law and Criminology
RAND Corporation
American Enterprise Institute
National Research Council
Duke University
Louisiana Law Review
National Academy of Sciences
Death Penalty Information Center
National Conference of State Legislatures
CATO Institute
WHY THIS QUESTION MATTERS:
In July 2019, the U.S. Attorney General announced that the federal government would “resume capital punishment” by scheduling the execution of five federal prisoners on death row. While the executions were originally scheduled for December 2019 and January 2020, a legal battle delayed the execution process. These long litigation periods are quite common, with the average prisoner being held on death row for 20 years and 3 months before execution is carried out.
However, a recent Supreme Court ruling has cleared the way for federal executions to resume. Before this, only three federal executions had been carried out over the last five decades.
This article walks through the support and opposition of a death penalty, or capital punishment, at the federal level.
STATE DEATH PENALTY
The death penalty remains legal in 29 states. However, only a small portion of states actually carry out executions on a regular basis. Since 2009, five states have legislatively abolished the death penalty: New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), New Hampshire (2019) and Colorado (2020). Meanwhile others have expanded it via updates to aggravating factors.
Supreme Court ruling have also narrowed the death penalty’s application in states. The rulings state that individuals who are juvenile offenders, mentally disabled, or convicted of raping a child where death was not the intended or actual result are not eligible for capital punishment.
From a state level, just eight states accounted for all executions as of 2017. In comparison, 20 states were actively carrying out executions in 1999.
FEDERAL DEATH PENALTY
The death penalty is also legal federally. According to the Department of Justice, the defendant is eligible for a capital sentence when:
The defendant is charged with a crime for which the death penalty is a legally authorized sanction.
The defendant intended or had a high degree of culpability with respect to the death of the victim.
And, one or more aggravating factors specified in a statutory list are present in the case. Aggravating factors included killing after substantial planning, killing of multiple victims, etc.
To seek a capital sentence, the defendant must be appointed two lawyers and the guilt-determination phase is followed by a second hearing to determine if capital punishment is warranted.
The most recent federal execution occurred in 2003.
RECENT TRENDS
In 2014, the capital punishment debate made headlines after a botched execution in Oklahoma. This incident prompted the Justice Department to conduct a broad review of capital punishment and issues of lethal injections.
In July 2019, the U.S. Attorney General declared that the review has been completed and a new single lethal injection would replace the three-drug cocktail that was previously used in federal executions. This announcement prompted new debate over this highly contentious topic.
What do you think?
The Common Thread
The justice system should be fair and provide adequate retribution for the crime committed.
FIND YOUR Thread
Proponents of the death penalty say that the only adequate retribution for heinous crimes is capital punishment, which will also help deter future crime. Opponents say that the justice system is imperfect and adequate retribution comes from lifelong prison sentences, which avoids potential to execute a wrongly convicted individual.
Yes, we should resume capital punishment federally.
Reason 01
The death penalty deters crime and is only used to provide retribution for the most heinous crimes.
The death penalty is reserved for the most heinous crimes. When the federal government announced it would resume capital punishment, it moved to schedule executions for death-row inmates convicted of “murdering, and in some cases torturing and raping, the most vulnerable in our society-- children and elderly.” Department of Justice
Research by the American Law and Economics Review shows that a death penalty punishment discourages people from committing these heinous acts out of fear of retribution. Results suggest that each execution results in an average of 18 fewer murders. American Law and Economics Review
Additionally, a death sentence is a mechanism to provide justice and closure for victims’ families. Supreme Court Justice Scalia wrote, “I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough.” Supreme Court: Gossip v. Gross
Reason 02
The process for death penalty convictions is rigorous and fair.
Death penalty trials are more rigorous than other criminal proceedings. In cases where a capital sentence is sought, the defendant is entitled to the appointment of two lawyers and, if convicted, the guilt-determination phase of the trial is followed by a special hearing to determine whether a sentence of death is justified. The government must prove the existence of aggravating factors beyond a reasonable doubt, and the jury must unanimously agree that such a factor or factors have been established. Department of Justice
Lawyers representing defendants are skilled, oftentimes large law firms provide pro-bono council to death row defendants. Journal of Criminal Law and Criminology
Finally, an exhaustive study by the RAND Corporation found that there was no evidence of racial bias in capital cases. RAND Corporation
Reason 03
An efficient death penalty process will relieve taxpayer burden and lengthy trials.
The death penalty is explicitly constitutional based on the Fifth Amendment, which permits capital punishment with “due process of law.” Supreme Court: Gossip v. Gross
Death penalty opponents drive the cost of the process up significantly through lengthy litigation and complaints. Without these delays, the death penalty would allow justice to be served without burdening the taxpayer with the cost of a life sentence. American Enterprise Institute
No, let’s not resume capital punishment federally.
Reason 01
The death penalty doesn’t deter crime and may be unconstitutional.
In the 2014 Supreme Court case, Justice Stephen Breyer argued that the death penalty may be unconstitutional based on the Eighth Amendment, which forbids “cruel and unusual punishments.” Supreme Court: Glossip v. Gross
The National Research Council found that criminals are mainly concerned about whether they’ll be caught and not about their ensuing punishment. They concluded that the existing evidence on using the death penalty as a deterrent for homicide is inconclusive. National Research Council
The process is also expensive and time consuming. A Duke University study found that in North Carolina the cost of executing a prisoner was $2.16 million more than if that individual had served a life sentence in prison. This is largely due to costs at the trial level. Duke University
Reason 02
The process for death penalty convictions highlights bias and may punish innocent individuals.
Empirical research has exposed a pattern of bias, where extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence. In Louisiana, if a victim is white, the defendant was 2.6 times more likely to be sentenced to death than if the victim was black. The Journal of Criminal Las & Criminology & Louisiana Law Review
The death penalty also risks punishing innocent people. Researchers estimate that 4.1% of death-sentenced defendants would be exonerated if they were left on death row indefinitely, meaning they would have eventually been found innocent. Since 1973, more than 165 people who were sentenced to death were wrongly convicted and later exonerated based on new evidence. National Academy of Sciences & Death Penalty Information Center
Reason 03
Increasing or maintaining use of the death penalty goes against global trends.
Nationally, the annual number of U.S. executions peaked at 98 in 1999 and has fallen sharply in the years since. Five states have also legislatively abolished the death penalty since 2009. Why should the federal death penalty apply even in states that have opted out of capital punishment? Pew Research Center, National Conference of State Legislatures, Death Penalty Information Center
In Europe, capital punishment remains legal only in Belarus. Globally, the number of recorded executions dropped by 31% between 2017 and 2018, and the vast majority of recorded executions happen in Iran, Saudi Arabia, Vietnam and Iraq. The United States' reinstatement of the Federal capital punishment runs counter to the global trend. CATO Institute
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