capital punishment

The penalty of death for the commission of a crime.

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Penalizes those convicted of certain classes of crimes by killing them. While many societies practice capital punishment, most developed countries had abolished death sentencing by 2003. The European Union mandates, and international covenants favor, abolition of this practice. Although outlawed in some states, in 2003 capital punishment was legal in thirty‐eight states, the federal government, and the U.S. military.

The word capital comes directly from the Latin capitalis, “of the head.” Across human history, beheading has probably been the most frequent mode of dispatch. Sanctioned methods of execution in the United States have included death by electrocution, poison gas, hanging, and firing squad. Concern regarding their cruelty has led to lethal injection as the preferred method.

Historical interpretations of the Constitution support capital punishment's legality. The Eighth Amendment, applied to the states through the Fourteenth Amendment, prohibits inflicting cruel and unusual punishments, but no Supreme Court majority has interpreted that phrase to prohibit all forms of capital punishment in all circumstances. The phrase “cruel and unusual” historically referred to punishments that were far more serious than the offense involved, to torture, and to forms of execution that prolonged the pain of dying. Further, the Fifth and Fourteenth Amendments implicitly sanction capital punishment by stating that one cannot “be deprived of life … without due process of law.”

However, interpretive approaches that stress the evolving character of constitutional norms have enabled the Supreme Court to address the complex moral and empirical questions associated with capital punishment. Since Furman v. Georgia (1972), which nullified all death sentences imposed without statutory guidelines, critics of the death penalty have attacked it on several fronts.

First, it is hypocritical to punish heinous crimes by means of a heinous crime—the deliberate taking of another human life. Second, research does not confirm the claim that capital punishment is an effective general deterrent. Third, once inflicted, the death penalty's irreversibility prevents correcting those instances in which the criminal justice system convicts the wrong person. Over one hundred persons have been freed from America's death rows on grounds of innocence since the mid‐1970s, demonstrating the system has indeed been convicting innocents, and suggesting it may be executing them as well. Though the Court has required a greater degree of reliability in these cases, legislators and governors are increasingly moving beyond the Constitution's minimum protections to assure against mistake. When Illinois had sent thirteen innocents to death row, the risk of mistaken execution led then‐Governor George Ryan to announce a moratorium on executions in 2000 and to eventually commute the death sentences of all those on the Illinois death row in 2003. The state legislature followed, enacting reforms. A moratorium movement has made strides around the country, prompting study commissions focusing not only on the perceived unreliability of the process, but also on concerns about arbitrariness, discrimination, and the comparative cost of the death penalty as opposed to life imprisonment. In speaking engagements, some Supreme Court justices have echoed a number of these concerns.

Fourth, administration of capital punishment in law and practice is inconsistent with retributive theories of punishment.

Fifth, data on those who receive the death penalty show that the criminal justice system does not apply it in proportion to the seriousness of the crime. Rather, it appears to be imposed on a randomly selected subset of those convicted of capital offenses, often the poor. Prosecutorial discretion in charging and the discretionary practice of plea bargaining virtually assure this randomness. As this randomness suggests, no definitive study has isolated a strong racial bias in death sentencing. However, aggregate data convincingly show that the death penalty is more frequently imposed on those who victimize whites than those who victimize blacks.

Sixth, as a class, paroled murderers show lower recidivism rates for their crimes than do most classes of felons. There is no evidence that the death penalty, as opposed to long‐term imprisonment, is an effective specific deterrent. Murderers on death row are more likely to engage in violent crimes within prison than are those serving life terms.

On the other hand, sociological theory, at least since Émile Durkheim, has posited that setting absolute outer limits on deviance is a necessary component of group identification and survival. Justice Oliver Wendell Holmes wrote, in The Common Law (1881), “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong” (1938 ed., p. 41). Public opinion supporting the death sentence appears strong, at 74 percent in 2003. However, when life imprisonment with absolutely no possibility of parole is considered as the alternative punishment, only a slim majority (54 percent) supports death. Sentencing juries, too, increasingly choose a life without parole sentence over the death penalty. By this measure then, support for the death penalty may appear to be slipping. Supporters also urge that by some modern models of social interaction, parties must occasionally threaten to take irrational and extreme actions in order to strengthen their capacity to negotiate resolutions of conflict peacefully. Finally, they contend the precise effects of the death penalty versus less harsh punishment are impossible to measure because due process of law prohibits conducting controlled experiments.

In Gregg v. Georgia (1976) the Court majority upheld death‐sentencing when the legislature created statutory standards to guide the sentencing body's discretion in a separate trial where additional evidence relevant to sentencing could be adduced. A companion case, Woodson v. North Carolina, rejected a mandatory death penalty for all capital murderers, finding the Eighth Amendment evolving standards of decency required the individualized consideration of aggravating and mitigating circumstances. Ring v. Arizona (2002) required that juries, not judges, determine the presence of the aggravating factors that made one death‐eligible, and that these factors be proven beyond a reasonable doubt.

Before Furman, most executions had been for murder, some for rape, and a few for kidnapping, treason, espionage, and aircraft piracy. In Coker v. Georgia (1977), the Court barred the death penalty for rape of an adult woman. Today, nearly all death sentences are imposed for homicide.

Looking to objective indicators of the evolving standards of decency, the Court has reserved the death penalty for those most culpable offenders: The actual killer, or the accomplice who attempts to kill, intends to kill, or is a major participant in an accompanying felony and possesses a reckless indifference to human life, is death‐eligible (Tison v. Arizona, 1987). But the mentally retarded (Atkins v. Virginia, 2002), the insane (Ford v. Wainwright, 1986), and those under sixteen at the time of the offense (Thompson v. Oklahoma, 1988) are not.

Between the Gregg decision in 1976 and 1 July 2003, there were 882 persons executed in 33 jurisdictions. Over three‐fourths of these executions occurred below the Mason‐Dixon line, led by Texas (311) and Virginia (89). The pace of executions rose sharply in the 1990s, perhaps in part as a consequence of the 1996 Anti‐Terrorism and Effective Death Penalty Act's trimming back of federal habeas corpus relief mechanisms. At midyear 2003, over 3,500 persons awaited execution: 98 percent male, and 54 percent of minority race.

Significant decisions in 2002 and in 2003 (regarding ineffective assistance of penalty phase counsel, Wiggins v. Smith), indicate the Court majority is willing to exert controls over the development of capital punishment policies and procedures that they had largely left to state legislatures, courts, and governors. Still, since many state judges and all the others face electoral challenges, conventional political processes will continue to play a major role in shaping future death penalty polices, including possible moratorium measures.

See also Race Discrimination and the Death Penalty.

Bibliography

• Hugo Adam Bedau, ed., The Death Penalty in America (1982; 1997).
• Death Penalty Information Center, Death Penalty Information Center Home Page. http://www.deathpenaltyinfo.org

— Lief H. Carter; revised by Margery M. Koosed

For more information on capital punishment, visit Britannica.com.

Capital punishment was formerly of central importance in all European criminal justice systems. Although the history of capital punishment in Scotland has been little studied, it is clear that hanging was the standard method of executing on both sides of the border. Under English law, decapitation, hanging, drawing, and quartering, or (in the case of women) burning at the stake were reserved for traitors.

Evidence from burial sites suggests that capital punishment was known in Anglo-Saxon England. Calculating levels of capital punishment for this and the medieval period is impossible, although it seems they were low. This changed drastically in the Tudor period. By Elizabeth's reign many convicted criminals were executed, a trend which continued after 1603.

The 18th cent. provides better documentation on ceremonies and crowd reactions at executions. It also experienced a lower level of executions than the early 17th, with many convicted persons being reprieved, notably before being transported to the American colonies. The early 19th cent. experienced a rapid transition in thinking on punishment. Transportation to Australia or incarceration in one of the new prisons became the standard punishment for serious, non-homicidal offenders. By the mid-19th cent. capital punishment was restricted to murderers and, after 1868, was carried out inside prisons rather than in public. By that date the abolition of the death penalty was already being mooted. Debate on this issue surfaced intermittently in the 20th cent., leading to its abolition for all practical purposes in 1965.

The penalty of death for a person convicted of a serious crime, such as intentional murder, is called capital punishment. Capital is derived from the Latin word capitalis, which means “of the head.” Throughout human history, beheading a person has been the most frequent form of killing someone as punishment for a serious crime. Current methods of carrying out capital punishment in the United States are electrocution, firing squad, hanging, poison gas, and lethal injection. The use of lethal injection has become the most common way of carrying out the death penalty in the United States; it is the method used in 17 states.

Capital punishment has been practiced in the United States since the founding of the republic. During the founding period, several crimes were punishable by death in the 13 states: murder, treason, piracy, arson, rape, robbery, burglary, sodomy, counterfeiting, horse theft, and slave rebellion. Today, in the 36 states that permit capital punishment, premeditated murder is virtually the only crime for which the punishment is death. Fourteen states and the District of Columbia have banned the death penalty. The United States government may impose the death penalty for certain federal crimes, such as treason.

In 1972 the U.S. Supreme Court ruled in Furman v. Georgia that the death penalty could not be imposed without legal guidelines that define precisely the crime and conditions for a sentence of death. A jury in Georgia had convicted William Furman, a black man, of murdering a white man and had sentenced him to death. Under Georgia law, the jury had complete power to decide whether a convicted murderer should receive the death penalty. The Legal Defense Fund of the National Association for the Advancement of Colored People (NAACP) filed an appeal on Furman's behalf. It argued that state laws that gave a jury free rein to impose capital punishment could be unfair. The NAACP lawyers pointed to evidence that blacks convicted of murdering whites were much more likely to be punished by death than whites convicted of murder.

A divided Court (5 to 4) agreed with the NAACP position and, for the first time, nullified a death penalty on the basis of the 8th Amendment, which forbids “cruel and unusual punishments.” Justices William Brennan and Thurgood Marshall argued, in separate concurring opinions, that the death penalty is morally wrong and is always a violation of the “cruel and unusual punishments” clause of the 8th Amendment, as applied to the states through the due process clause of the 14th Amendment. Three other Justice—William O. Douglas, Potter Stewart, and Byron White—wrote separate concurring opinions in which they agreed only that the Georgia system for imposing capital punishment, at issue in this case, was unconstitutional because it led to random and unfair decisions about who should receive the death penalty.

After the Furman decision, there was a halt in the use of the death penalty by all 50 state governments. The Georgia government passed a new law regarding capital punishment to address the problems raised by the Court in Furman. It created a two-phase procedure for imposing the death penalty in murder cases: the trial phase and the sentencing phase. In the trial phase, a jury would determine a defendant's guilt or innocence. If the defendant was found guilty, the state could request the death penalty. During phase two, there would be a second jury trial with the sole purpose of deciding whether to impose the death penalty. The Georgia law specified mandatory guidelines for determining whether to impose capital punishment. Thus, the law was designed to limit the jury's discretion and eliminate the kind of arbitrary application of the death penalty to which the Court objected in the Furman case.

The new Georgia law on capital punishment was tested in Gregg v. Georgia (1976), in which the Court decided that the death penalty for people convicted of first-degree murder is constitutional. The Court also upheld the Georgia law and praised it as a model for other states to follow. Many states have either adopted the Georgia law or created a similar one. The Gregg decision appears to have settled the capital punishment issue in favor of the death penalty, as long as it is imposed only in convictions for murder in the first degree and only according to certain clearly spelled out procedures and conditions.

Justices William Brennan and Thurgood Marshall were the two dissenters in the Gregg case. They continued to argue that capital punishment is always a violation of the 8th Amendment's “cruel and unusual punishments” clause. By contrast, the defenders of limited uses of capital punishment argue that the U.S. Constitution sanctions the death penalty. They point to the 5th and 14th Amendments, which restrain the government from taking away a person's “life, liberty, or property, without due process of law.” These constitutional provisions imply that a person may, under certain conditions, be deprived of life, as long as due process of law is observed. A large majority of Americans have agreed, in public opinion polls, that the death penalty is an acceptable punishment for first-degree murder.

See also Cruel and unusual punishment

Sources

• Hugo Adam Bedau, ed., The Death Penalty in America (New York: Oxford University Press, 1982).
• Vincent Buranelli, The Eighth Amendment (Englewood Cliffs, N.J.: Silver Burdett, 1991).
• Welsh S. White, The Death Penalty in the Nineties: An Examination of the Modern System of Capital Punishment (Ann Arbor: University of Michigan Press 1991)

The history of capital punishment in the United States provides a means of understanding the dynamics of change and continuity. Changes in the arguments for and against capital punishment are indicative of larger developments regarding the saving and taking of human life by the state. The death penalty, optional or mandatory, is invoked for "capital crime," but no universal definition of that term exists. Usually capital crimes are considered to be treason or terrorist attacks against the government, crimes against property when life is threatened, and crimes against a person that may include murder, assault, and robbery. Criminal law is complex and involves many legal jurisdictions and social values. The existing statutory law and the circumstances of any case can mitigate the use of capital punishment. The power of a jury to decide for or against capital punishment is the dynamic element in its history.

Arguments for and Against Capital Punishment

The arguments for the death penalty and for its abolition have remained fairly constant since the seventeenth century. Advocates for the death penalty claim that the practice is justified for several reasons: retribution, social protection against dangerous people, and deterrence. Abolitionists' response is that the practice is not a deterrent; states without the practice have the same murder rates over time as those with the law. Moreover, the imposition of the death penalty comes from many factors, resulting from cultural and social circumstances that might have demonstrated irrationality and fear on society's part. The result might be a miscarriage of justice, the death of an innocent person.

Religious groups have put forth several arguments regarding capital punishment. One argument states that perfect justice is not humanly possible. In the past God or his representatives had authority over life and death, but the people or their representatives (the state and the criminal justice system) have become God in that respect, an act of tragic hubris.

A secular argument against capital punishment is that historically the verdict for capital punishment has been rendered most frequently against the poor and against certain ethnic groups as a means of social control. Another argument claims that the death penalty is just an uncivilized activity.

The discovery of DNA provides an argument against capital punishment by stressing that the absence of a positive reading challenges other physical evidence that might indicate guilt. The finality of judgment that capital punishment serves is thus greatly limited. The fullest legal and judicial consequences are still evolving in American jurisprudence.

While these arguments whirl around the academy, the legal system, and public discourse, one method of understanding the issue is to examine its historical nature. Western societies in the seventeenth century slowly began replacing public executions, usually hangings, with private punishment. The process was slow because the number of capital crimes was great. By the nineteenth century, solitary confinement in penitentiaries (or reformatories) was the norm, with the death penalty reserved for first-degree murder.

History of Capital Punishment

Initially moral instruction of the populace was the purpose of public execution. As juries began to consider the causes of crime, the trend toward private execution emerged. In both cases the elemental desire for some sort of retribution guided juries' decisions.

Generally English law provided the definition of capital offenses in the colonies. The numbers of offenses were great but mitigating circumstances often limited the executions. The first execution of record took place in Virginia in 1608. The felon was George Kendall, who was hanged for aiding the Spanish, a treasonable act. Hanging was the standard method, but slaves and Indians were often burned at the stake.

Both the state and the church favored public executions in Puritan New England. Sermons touted the importance of capital punishment to maintain good civil order and prepare the condemned to meet his maker. He was a "spectacle to the world, a warning to the vicious." Over time the event became entertainment and an occasion for a good time; much later vicious vigilante lynchings served a similar purpose. Order had to be maintained.

The American Revolution sparked an interest in re-form of the death penalty as appeals for justice and equity became public issues. William Penn and Thomas Jefferson were early critics of capital punishment. The rebellion against Great Britain was more than a mere "political" event. Encouraged by Montesquieu's writings, Cesare Beccaria's Essay on Crime and Punishment (1764), and others, philosophers began the ideological critique of capital punishment. Benjamin Rush's Enquiry into the Effects of Public Punishments upon Criminals and upon Society (1787) was a pioneer effort toward reforming the method of executions.

For a time, events moved quickly in the young republic. Pennsylvania established the world's first penitentiary in 1790 and the first private execution in 1834. The adoption of the Bill of Rights in 1791 set the stage for the interpretative struggle over "cruel and unusual punishment [being] inflicted." John O'Sullivan's Report in Favor of the Abolition of the Punishment of Death by Law (1841) and Lydia Maria Child's Letters From New York (1845) were important items in antebellum reform. In 1847 Michigan abolished capital punishment. But the Civil War and Reconstruction pushed the issue off the national agenda for several years.

The Supreme Court

In 1879, the Supreme Court upheld death by firing squad as constitutional in Wilkerson v. Utah. By the end of the twentieth century Utah was the only state using that method. In 1890 in re Kemmler, the Supreme Court ruled death by electric chair to be constitutional. In a sense this case validated the use of private executions over public hangings. Enamored with the wonders of electricity, Gilded Age reformers believed this method was more humane. In 1947, the Supreme Court ruled in Louisiana ex rel. Francis v. Resweber that a second attempt at execution, after a technical failure on the first try, did not constitute cruel and unusual punishment. On humanitarian grounds, in 1921 Nevada passed the "Humane Death Bill" permitting the use of the gas chamber. The Supreme Court approved the bill and invoked Kemmler when Gee Jon appealed it. Jon then became the first person to die in the gas chamber on 8 February 1924.

With the rise of twentieth-century communications and the civil rights movement, public opinion slowly become more critical of execution. In a multitude of cases the issue was debated on two fronts: cruel and unusual punishment and the standard of due process and equity as stated in the Fourteenth Amendment. Furman v. Georgia (1972) created a flurry of legislative activity with its ruling that the administration of capital punishment violated both the Eighth and Fourteenth Amendments. Other cases, such as Gregg v. Georgia and Woodson v. North Carolina (1976), further confused the complex issue by once again allowing the constitutionality of capital punishment in some cases and not in others.

As membership on the Supreme Court changed, the prospect for the national abolition of capital punishment grew dimmer. Advocates of death by lethal injection came forward and claimed the method was humane, efficient, and economical. The Supreme Court has been hesitant to make a definitive statement as to whether or not capital punishment is constitutional. The result is a sizable body of cases dealing with due process. In 1995 the number of executions reached its highest level since 1957. The Society for the Abolition of Capital Punishment, established in 1845, was the first national organization to fight capital punishment. Their goal has yet to be reached.

Bibliography

ABC-Clio. Crime and Punishment in America: A Historical Bibliography. Santa Barbara, Calif.: ABC-Clio Information Services, 1984. Excellent guide to the literature.

Brandon, Craig. The Electric Chair: An Unnatural American History. Jefferson, N.C.: McFarland, 1999. A candid narrative about the place of the "chair" in America.

Friedman, Lawrence. Crime and Punishment in American History. New York: Basic Books, 1993. First-rate account.

Lifton, Robert Jay, and Greg Mitchell. Who Owns Death?: Capital Punishment, the American Conscience, and the End of Executions. New York: William Morrow, 2000. The authors oppose capital punishment; however, the narrative regarding the conflicts among prosecutors, judges, jurors, wardens, and the public is informative.

Marquart, James W., Selfon Ekland-Olson, and Jonathan R. Sorensen. The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923–1990. Austin: University of Texas Press, 1994. A detailed and informative state study.

Masur, Louis P. Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865. New York: Oxford University Press, 1989. A brilliant cultural analysis.

Vila, Bryan, and Cynthia Morris, eds. Capital Punishment in the United States: A Documentary History. Westport, Conn.: Greenwood Press, 1997. With a chronology of events and basic legal and social documents, a basic source.

—Donald K. Pickens

The lawful infliction of death as a punishment; the death penalty.

Capital punishment continues to be used in the United States despite controversy over its merits and over its effectiveness as a deterrent to serious crime. A sentence of death may be carried out by one of five lawful means: electrocution, hanging, lethal injection, gas chamber, and firing squad. As of 1995, thirty-eight states employed capital punishment as a sentence; twelve states — Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin — and the District of Columbia did not.

The first known infliction of the death penalty in the American colonies occurred in Jamestown Colony in 1608. During the period of the Revolutionary War, capital punishment apparently was widely accepted — 162 documented executions took place in the eighteenth century. At the end of the war eleven colonies wrote new constitutions, and, although nine of them did not allow cruel and unusual punishment, all authorized capital punishment. In 1790 the First Congress enacted legislation that implemented capital punishment for the crimes of robbery, rape, murder, and forgery of public securities. The nineteenth century saw a dramatic increase in the use of capital punishment with 1,391 documented executions. The death penalty continued as an acceptable practice in the United States for some time.

In 1967 a national moratorium was placed on capital punishment while the Supreme Court considered its constitutionality. In 1972 it appeared that the Court had put an end to the death penalty in the case of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed 2d 346, declaring certain capital punishment laws to be unconstitutionally cruel and unusual because juries were applying them arbitrarily and capriciously. It appeared that Furman would mark the passing into history of capital punishment in this country.

By 1976, Georgia, Florida, and Texas had drafted new death penalty laws and this time, the Supreme Court upheld them. Of the nine Supreme Court justices, only two, William J. Brennan, Jr., and Thurgood Marshall, persisted in the belief that capital punishment is unconstitutional per se. Capital punishment had survived and so had the controversies surrounding it.

Though the Supreme Court has held that the Constitution permits the use of capital punishment, decisions on this issue have divided the Court and done little to convince opponents of the death penalty's fairness. Critics have argued that the death penalty is a cruel and unusual punishment, that it is applied in a racially discriminatory manner, that it lacks a deterrent effect, and that it is just plain wrong.

Cruel and Unusual Punishment

The Eighth Amendment of the U.S. Constitution prohibits the government from inflicting "cruel and unusual punishments." The controversy over the constitutionality of the death penalty lies in the ambiguity of the phrase "cruel and unusual." The first meeting of Congress addressed the phrase for only a few minutes. Congressman William Smith of South Carolina foreshadowed the controversy to come when he stated that the wording of the Eighth Amendment was "too indefinite."

Whereas some argue that the phrase "cruel and unusual" refers to the type of punishment inflicted (such punishments as the severing of limbs would almost certainly be considered cruel and unusual), others feel that the phrase refers to the degree and duration of the punishment. The Supreme Court has rejected both interpretations, leaving the death penalty a legal means of punishing certain criminals.

The Fifth Amendment seems to supply a clearer basis for assuming the constitutionality of the death penalty. This amendment states that no one shall be "deprived of life, liberty, or property, without due process of law. From this language one can conclude that with due process of law, capital punishment may be imposed.

In Furman, the justices who found the death penalty to be unconstitutional pointed to the language of the Eighth Amendment as the basis of their decision. Chief Justice Warren E. Burger, who filed a dissenting opinion, relied heavily upon the language of the Fifth Amendment to support his argument that the death penalty was constitutional.

Racial Bias

In 1983, Professor David C. Baldus, of the University of Iowa College of Law, published a study on the capital punishment system in the state of Georgia. The figures he assembled showed that between 1973 and 1979, killers whose victims were white were eleven times more likely to be sentenced to death than were killers whose victims were black.

Baldus's study was used by death row inmate Warren McClesky in an appeal that came before the Supreme Court (McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262). Though the Supreme Court accepted the validity of the study, it found the statistics "insufficient to demonstrate unconstitutional discrimination" or "to show irrationality, arbitrariness, and capriciousness."

Other studies have yielded equally staggering numbers regarding the statistical differences between the system's treatment of blacks and whites. For example, between 1976 and 1995, a total of 245 convicts were executed; 84 percent of their victims were white, though fewer than 50 percent of all murder victims are white. Many critics argue that statistics demonstrating racial bias in the administration of capital punishment prove that the death penalty, even if constitutional in concept, is unconstitutional as applied in the United States — violating at least the Equal Protection Clause of the Fourteenth Amendment.

Justice Lewis F. Powell, Jr., who voted with the majority in McClesky to deny a racial bias challenge to the capital punishment system, later informed a biographer that he had since come to regret his vote.

Deterrent Effect

Since the turn of the twentieth century, many studies have been conducted on the deterrent effect of capital punishment. More often than not, the results have proved inconclusive; no hard evidence exists to verify the theory that the threat of such a harsh punishment will sway criminals from their actions. In fact, some statistics indicate that the opposite is true; in some instances, states employing capital punishment have a higher incidence of homicide than neighboring states that do not employ the death penalty.

The Supreme Court justices in the Furman case, both concurring and dissenting, often referred to studies that showed no conclusive correspondence between capital punishment and the frequency with which capital crimes were committed. A later accounting revealed that during the moratorium on capital punishment, from 1967 to 1976, the national homicide rate nearly doubled. Since then, depending on the study conducted, evidence has been presented to show that capital punishment has no deterrent effect; that the implementation of the death penalty is directly related to a decrease in capital crime; and that the implementation of the death penalty is directly related to an increase in capital crime.

Though some opponents of the death penalty are quick to argue that capital punishment has no deterrent effect, many supporters feel that the purpose of capital punishment is retribution, not deterrence. Many individuals, especially those with close ties to the victim, are more often concerned that the convicted criminal pay for the crime than that other persons be deterred through punishment of the perpetrator.

Morality and Emotion

Emotions may have played a part in the Furman decision. Burger, in his dissent, warned that the Supreme Court's "constitutional inquiry … must be divorced from personal feelings as to the morality and efficacy of the death penalty." Justice Harry A. Blackmun, who joined Burger in his dissent, later renounced his belief in the death penalty for reasons that another justice saw as partly personal.

In 1994, in Callins v. Collins, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435, Blackmun wrote a dissenting opinion in which he condemned the practice of capital punishment in the United States. Blackmun argued that "no combination of procedural rules or substantive regulations ever [could] save the death penalty from its inherent constitutional deficiencies"— "arbitrariness, discrimination, caprice, and mistake." Justice Antonin Scalia criticized Blackmun's position, writing that Blackmun had based his dissent on intellectual, moral, and personal reasons, rather than on the authority of the Constitution.

Other Issues

Other controversial aspects of capital punishment disturb the public. Between 1976, when the moratorium on capital punishment was lifted, and 1995, [bl]More than fifty mentally ill or mentally impaired individuals were put to death

Nine juveniles were executed

The cost of executing a death row inmate was three to six times as much as incarcerating him or her for life without parole Despite the controversy, the constitutionality of capital punishment has been upheld and continues to be an acceptable practice in thirty-eight states, where nearly three thousand inmates waited on death row in 1995.

See: Witherspoon v. Illinois.

The infliction of the death penalty as punishment for certain crimes. (See capital offense.)