Capital punishment in the United States

This article is about capital punishment in the U.S. as a general overview. For the federal government's capital punishment laws, see Capital punishment by the United States federal government.

Part of a series on
Capital punishment
Issues
Debate · Religion and capital punishment · Wrongful execution · Drugs
Current use
Belarus · China (PRC) · Cuba · Egypt · India · Iran · Iraq · Japan · Malaysia · Mongolia · North Korea · Pakistan · Saudi Arabia · Singapore · South Korea · Taiwan (ROC) · Tonga · United States · Vietnam
Past use
Australia · Austria · Belgium · Bhutan · Brazil · Bulgaria · Canada · Cyprus · Denmark · Ecuador · France · Germany · Hong Kong · Israel · Italy · Mexico · Netherlands · New Zealand · Norway · Philippines · Poland · Portugal · Romania · Russia · San Marino · South Africa · Spain · Sweden · Switzerland · Turkey · United Kingdom · Venezuela
Current methods
Decapitation · Electrocution · Gas chamber · Hanging · Lethal injection · Shooting (Firing squad) · Stoning · Nitrogen asphyxiation (proposed)
Past methods
Boiling · Breaking wheel · Burning · Crucifixion · Crushing · Disembowelment · Dismemberment · Drawing and Quartering · Execution by elephant · Flaying · Impaling · Sawing · Slow slicing
Other related topics
Crime · Death row · Last meal · Penology
v · d · e

Death penalty statutes in the United States
Color key:

  No current death penalty statute

  Retentionist, not applied since at least 1976

  Retentionist, has performed execution since 1976

  Retains in law; either statute/method ruled unconstitutional, penalty abolished only prospectively, or abolition has yet to take effect

Capital punishment in the United States, in practice, applies only for aggravated murder and more rarely for felony murder.^[1] Capital punishment was a penalty at common law, for many felonies, and was enforced in all of the American colonies prior to the Declaration of Independence. Following the American Revolution the Anglo-American common law was maintained in the United States, capital punishment with it.

The methods of execution and the crimes subject to the penalty vary by jurisdiction and have varied widely throughout time, though today they are usually done by poisoning the criminal. Thirty-four jurisdictions have banned it by law, others have suspended its use, and others are trying to expand its applicability. There were 37 executions in the United States in 2008,^[2] the lowest number since 1994^[3] (largely due to lethal injection litigation revolving around a now resolved constitutional question).^[4][5] There were 46 executions in 2010, 44 by lethal injection, one by electric chair (in Virginia), and one by firing squad (in Utah).^[6]

Capital punishment has often been a contentious social issue in the United States; 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, and there has long been strong opposition from some sectors of the population. While public support today is lower than it was in the 1980s and '90s (in 1994 it reached an all-time high of 80%), it has been largely static over the past decade.^[7] A 2011 Gallup poll showed 61% of Americans favored it in cases of murder while 35% opposed it, the lowest level of support recorded by Gallup since 1972.^[8] When life in prison without parole is listed as a poll option, the support for the death penalty drops substantially; a 2010 Gallup poll found 49% preferring the death penalty and 46% favoring life without parole.^[9]

History

The Huntsville Unit in Huntsville, Texas is the location of the execution chamber of the state of Texas.

The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall,^[10] who was executed by firing squad at the Jamestown colony for allegedly spying for the Spanish government.^[11]

The Espy file,^[12] 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. 4,661 executions occurred in the U.S. in the period from 1930 to 2002 with about two-thirds of the executions occurring in the first 20 years.^[13] Additionally, the United States Army executed 135 soldiers between 1916 and 1999.^[14][15][16]

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.^[17] 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.^[18]

States without capital punishment

Michigan

Historically, several states have always been without capital punishment, the earliest being Michigan, which has never conducted a single 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.^[19][20][21] 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.^[22]

Alaska and Hawaii

The newest two states, Alaska and Hawaii, abolished the death penalty prior to statehood. Alaska, however, had executed eight men during the earlier territorial government (1900–1959) and even earlier "Miner's Courts" had executed a number of men in the 19^th century.^[23]

Other states

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, and Vermont. 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,^[24] 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

As of March 2011, the following U.S. states have fully abolished the death penalty: Alaska, Hawaii, Illinois, Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin. The District of Columbia has also abolished the death penalty; New Mexico may yet execute two condemned inmates sentenced prior to 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.^[25]

Only three of the above states have legislatively abolished the death penalty in the so-called "modern era of capital punishment", 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,^[26] 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).^[27][28][29] However, in states with a large death row population and regular executions, including California and Texas,^[30][31] the death penalty remains strongly in the landscape and is unlikely to end at any time soon.^{[32][33][34][35][36][37]}

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,^[38][39] 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.^[40] 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. The Governor, a critic of the Court's decision, has yet to give final approval to the bill, though he is highly likely to do so.^[41][42][43]

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.

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.^[44]

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.^[45]

Suspension by Supreme Court

Further information: Furman v. Georgia

Executions in the US since 1960

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 the imposition of the death penalty in a consolidated group of cases to be unconstitutional, on the grounds of cruel and unusual punishment in violation of the eighth amendment to the United States Constitution.

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,^{[citation needed]} 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 Since 1976
(by jurisdiction)

Jurisdiction	Executions[nb 1]	Current death row inmates[nb 2]
Texas	477	321
Virginia	109	11
Oklahoma	96	77
Florida	71	398
Missouri	68	50
Alabama	55	206
Georgia	52	103
Ohio	46	159
North Carolina	43	165
South Carolina	43	63
Louisiana	28	86
Arizona	28	138
Arkansas	27	43
Indiana	20	14
Mississippi	15	60
Delaware	15	20
California	13	721
Illinois	12	0[nb 3]
Nevada	12 (11*)	81
Utah	7	9
Tennessee	6	87
Maryland	5	5
Washington	5	8
Nebraska	3	12
Pennsylvania	3*	219
Federal govt	3	61
Montana	3	2
Kentucky	3	36
Idaho	2 (1*)	15
Oregon	2*	34
Colorado	1	4
Connecticut	1*	10
New Mexico	1*	2[nb 4]
South Dakota	1*	3
Wyoming	1	1
Kansas	0	9
New Hampshire	0	1
U.S. Military	0	6
Total[nb 5]	1,277	3,250
* = So far, Connecticut, Oregon, Pennsylvania, and South Dakota have executed only "volunteers"; of the 12 prisoners executed in Nevada so far, 11 wanted to be executed; Idaho has executed one volunteer and one prisoner against his will. No current death penalty statute: Alaska, Hawaii, Illinois[nb 3], Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico[nb 4], North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, District of Columbia, American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and U.S. Virgin Islands. Statute ruled unconstitutional: Massachusetts[nb 6] and New York[nb 7]. Notes: ^ As of November 18, 2011; source ^ As of January 1, 2011; source ^ a b "Quinn signs death penalty ban, commutes 15 death row sentences to life". Chicago Tribune. March 9, 2011. http://newsblogs.chicagotribune.com/clout_st/2011/03/quinn-signs-death-penalty-ban-commutes-15-death-row-sentences-to-life.html. Retrieved March 9, 2011.  ^ a b On March 18, 2009, New Mexico banned the use of the death penalty, but the new law did not affect the sentences of the two inmates currently on death row, and the ban is not retroactive meaning those convicted of crimes committed before July 1, 2009 may still be sentenced to death under the pre-existing death penalty statute.[1] ^ Some inmates are on death row in more than one state, so the total may be lower than sum of state numbers. ^ Massachusetts's death penalty statute was ruled unconstitutional in 1984. source The most recent execution was in 1947. The state has no death row. ^ On June 24, 2004, the death penalty statute of New York was declared unconstitutional. The last person who was still on death row was re-sentenced to life in prison without parole on October 24, 2007. source The most recent execution was in 1963. The state has no death row. This box: view · talk · edit

Capital punishment resumed

Further information: Gregg v. Georgia

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,^[46] 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.^[47]

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.^[48] Connecticut is considering legislation to abolish its death penalty in the current legislative session. 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.^[49] Current governor Dan Malloy indicated he would sign a bill abolishing the death penalty if it was passed by the General Assembly.^[50]

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, 1,210 people have been executed, almost exclusively by the states, with most occurring after 1990. Texas has accounted for over a third of modern executions^[30][31] (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 states that have the death penalty 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.^[51]

Crimes subject to capital punishment

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.^[52]

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,^[53] 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 Connecticut and Florida;^[54] train wrecking which leads to a person's death, and perjury which leads to a person's death in California.^[52][55][56]

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.^[57]

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."^[58] 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."^[59]

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.^[60][61]

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.

The last executions solely for crimes other than homicide:

Crime	Convict	Date	State
Aiding a runaway slave	Starling Carlton	1859	South Carolina
Arson	George Hughes, George Smith, and Asbury Hughes	188408August 1884	Alabama
Burglary	Frank Bass	19410808August 8, 1941	Alabama
Criminal assault	Rudolph Wright	19620111January 11, 1962	California
Concealing the birth/death of an infant	Hannah Piggen	1785	Massachusetts (Middlesex County)
Conspiracy to Commit Murder	Five unnamed Yuki men	18630721July 21, 1863	California[62]
Counterfeiting	Thomas Davis	18221011October 11, 1822	Alabama
Desertion	Eddie Slovik	19450131January 31, 1945	Sainte-Marie-aux-Mines, France (Firing squad).[63]
Espionage	Ethel and Julius Rosenberg	19530619June 19, 1953	New York (Federal execution)
Forgery	Unknown defendant	18400306March 6, 1840	South Carolina
Horse stealing (Grand Larceny)	Theodore Velenquez	18520130January 30, 1852	California[64]
Kidnapping	Billy Monk	19601121November 21, 1960	California
Piracy (Slave Trading)	Nathaniel Gordon	18620221February 21, 1862	New York (Federal execution)
Rape	Ronald Wolfe[65]	19640508May 8, 1964	Missouri
Robbery	James Coburn	19640904September 4, 1964	Alabama
Slave revolt	Caesar, Sam, and Sanford (slaves)	18601019October 19, 1860	Alabama
Theft	Jake (slave)	18551203December 3, 1855	Alabama
Train Robbery	Black Jack Ketchum	19010426April 26, 1901	New Mexico Territory
Treason	John Conn	1862	Texas
Sodomy/buggery/bestiality	Joseph Ross	17851220December 20, 1785	Pennsylvania (Westmoreland County)
Witchcraft	Manuel[66][66]	17790615June 15, 1779	Illinois Country (present-day Illinois)

The 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.^[67] (Clemency or pardon, through which the Governor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.^[68])

Direct review

If a defendant is sentenced to death at the trial level, the case then goes into a direct review.^[69] 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.^[70] 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.^[69] 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.^[71] 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.^[71] About 60% survive the process of direct review intact.^[72]

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.^[73] 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.^[74] 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.^[75] 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% of death sentences are overturned on state collateral review.^[76]

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.^[77]

Review through federal habeas corpus is narrow in theory, but it is important in practice. According to Eric Freedman, 21% of death penalty cases are reversed through federal habeas corpus.^[76]

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."^[78] 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% of the habeas petitions filed by death row inmates were granted."^[79] 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.^[80]

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.^[81] 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.

Mitigating factors

The United States Supreme Court in Penry v. Lynaugh and the United States Court of Appeals for the Fifth Circuit in Bigby v. Dretke have been clear in their decisions that jury instructions in death penalty cases that do not ask about mitigating factors regarding the defendant's mental health violate the defendant's Eighth Amendment rights, saying that the jury is to be instructed to consider mitigating factors when answering unrelated questions. This ruling suggests that specific explanations to the jury are necessary to weigh mitigating factors.

Methods

The former State of Louisiana execution chamber at the Red Hat Cell Block in the Louisiana State Penitentiary in West Feliciana Parish. The electric chair is a replica of the original.

Usage of lethal injection for executions in the United States
Color key:

  State uses only this method

  State uses this method primarily but has secondary methods

  State has never used this method

  State once used this method, but no longer does

Number of executions each year by the method used in the United States and the earlier colonies from 1608 to 2004. The adoption of electrocution caused a marked drop off in the number of hangings, which was used even less with the use of the gas chamber. After Gregg v. Georgia, most states changed to lethal injection, leading to its rise.

Various methods have been used in the history of the American colonies and the United States but only five methods are currently used. Historically, burning, crushing, breaking on wheel, and bludgeoning were used for a small number of executions, while hanging was the most common method. The last person burned at the stake was a black slave in South Carolina August 1825.^[82] The last person to be hanged in chains was a murderer named John Marshall in West Virginia on April 4, 1913. Although beheading was a legal method in Utah from 1851 to 1888, it was never used.^[83]

The last use of the firing squad between 1608 and the moratorium on judicial executions between 1967 and 1977 was when Utah shot James W. Rodgers on March 30, 1960. The last use of the gallows between 1608 and the moratorium was when Kansas hanged George York on June 22, 1965. The last use of the electric chair between the first electrocution on August 6, 1890 and the moratorium was when Oklahoma electrocuted James French on August 10, 1966. The last use of the gas chamber between the first gassing on February 8, 1924 and the moratorium was when Colorado gassed Luis Monge on June 2, 1967.

The moratorium ended January 17, 1977 with the shooting of Gary Gilmore by firing squad in Utah. The first use of the electric chair after the moratorium was the electrocution of John Spenkelink in Florida May 25, 1979. The first use of the gas chamber after the moratorium was the gassing of Jesse Bishop in Nevada October 22, 1979. The first use of the gallows after the moratorium was the hanging of Westley Allan Dodd in Washington January 5, 1993. December 7, 1982 is also an important day in the history of capital punishment in the United States; Charles Brooks, Jr., put to death in Texas, was the first person executed by lethal injection.

Until the 21st century, electrocution and gassing were the most prevalent methods of execution in the United States. The electrocutions of John Evans and Horace Franklin Douglas, Jr. in Alabama, Jesse Tafero, Pedro Medina, and Allen Lee Davis in Florida, Alpha Otis Stephens in Georgia, William E. Vandiver in Indiana, Frank J. Coppola, Wilbert Lee Evans, and Derick Lynn Peterson in Virginia, and the gassings of Jimmy Lee Gray in Mississippi and Donald Eugene Harding in Arizona were botched and are often cited by opponents of capital punishment as unacceptable outcomes of such methods.

Currently, lethal injection is the method used or allowed in all of the 34 states which allow the death penalty. Nebraska required electrocution, but in 2008 the state's supreme court ruled that the method was unconstitutional. In mid-2009 Nebraska officially changed its method of execution to lethal injection.^[84][85][86] Other states also allow electricity, firing squads, hanging and lethal gas. From 1976 to November 18, 2011, there were 1,277 executions, of which 1,103 were by lethal injection, 157 by electrocution, 11 by gas chamber, 3 by hanging, and 3 by firing squad.^[87]

The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place. If the state has no death penalty, the judge must choose a state with the death penalty for carrying out the execution. For offenses under the 1988 Drug Kingpin Law, the method of executions is lethal injection. The Federal Correctional Complex in Terre Haute, Indiana is currently the home of the only death chamber for federal death penalty recipients in the United States, where inmates are put to death by lethal injection. The complex has so far been the only location used for federal executions post-Gregg; Timothy McVeigh and Juan Garza were put to death in June 2001, and Louis Jones, Jr. was put to death on March 18, 2003.

In 2004, Utah made lethal injection the only form of capital punishment. However those already on death row were grandfathered on the type of execution they chose at sentencing. At the time of the change in the law there were still three inmates on Utah's death row who had selected firing squad.

The use of lethal injection has become standard. The last execution by any other method:

Method	Date	State	Convict
Electrocution	20100318March 18, 2010	Virginia	Paul Powell
Shooting	20100618June 18, 2010	Utah	Ronnie Lee Gardner
Lethal gas	19990303March 3, 1999	Arizona	Walter LaGrand[88]
Hanging	19960125January 25, 1996	Delaware	William Bailey

The remaining two states that allow hanging^[89] are New Hampshire, which allows it at the decision of the Corrections officials,^[90] and Washington, at the decision of the prisoner.^[91]

Electrocution was the preferred method of execution during the 20th century. Electric chairs have commonly been nicknamed Old Sparky; however, Alabama's electric chair became known as the "Yellow Mama" due to its unique color. Some, particularly in Florida, were noted for malfunctions, which caused discussion of their cruelty and resulted in a shift to lethal injection as the preferred method of execution. Although lethal injection dominates as a method of execution, some states allow prisoners on death row to choose the method used to execute them.

Regardless of the method, an hour or two before the execution, the condemned person is offered religious services, and a last meal (except in Texas), the contents of which is often released to the news media. Executions are carried out in private with only invited persons able to view the proceedings; in some cases, journalists have reserved spots, such as in Texas, where The Associated Press is entitled to send a reporter to witness each execution.

Debate

Main article: Capital punishment debate

Capital punishment is a controversial issue, with many prominent organizations and individuals participating in the debate. Amnesty International and some religions oppose capital punishment on moral grounds, while the Innocence Project works to free wrongly convicted prisoners, including death row inmates, based on newly available DNA tests. Other groups, such as the Southern Baptists, law enforcement organizations, and some victims' rights groups support capital punishment.

The United States is one of only three industrialized democracies that still practice capital punishment. From the others, Japan has executed prisoners, like the United States, while South Korea currently has a moratorium in effect; in both countries, public support is similarly high.^{[citation needed]}

Elections have sometimes turned on the issue; in 1986, three justices were removed from the Supreme Court of California by the electorate (including Chief Justice Rose Bird) partly because of their opposition to the death penalty.

Religious groups are widely split on the issue of capital punishment,^[92] generally with more conservative groups more likely to support it and more liberal groups more likely to oppose it. The Fiqh Council of North America, a group of highly influential Muslim scholars in the United States, has issued a fatwa calling for a moratorium on capital punishment in the United States until various preconditions in the legal system are met.^[93]

In October 2009, the American Law Institute voted to disavow the framework for capital punishment that it had created in 1962, as part of the Model Penal Code, "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." A study commissioned by the institute had said that experience had proved that the goal of individualized decisions about who should be executed and the goal of systemic fairness for minorities and others could not be reconciled.^[94]

In total, 138 prisoners have been either acquitted, or received pardons or commutations on the basis of possible innocence, since 1973.^[95] Death penalty opponents often argue that this statistic shows how perilously close states have come to undertaking wrongful executions; proponents point out that the statistic refers only to those exonerated in law, and that the truly innocent may be a smaller number.

Arguments for and against capital punishment are based on moral, practical, and religious grounds. Advocates of the death penalty argue that it deters crime, is a good tool for prosecutors (in plea bargaining for example),^[96] improves the community by eliminating recividism by executed criminals, provides closure to surviving victims or loved ones, and is a just penalty for the crimes it punishes. Opponents argue that the death penalty is not an effective means of deterring crime,^[97] risks the execution of the innocent, is unnecessarily barbaric in nature, is levied disproportionately upon men, racial minorities, and the poor, cheapens human life, and puts a government on the same base moral level as those criminals involved in murder.^[98]

Another argument (specific to the United States) in the capital punishment debate is the cost. The convict is more likely to use the whole appeals process if the jury issues a death sentence than if it issues life without parole.^[99] But others who contest this argument say that the greater cost of appeals where the prosecution does seek the death penalty is offset by the savings from avoiding trial altogether in cases where the defendant pleads guilty to avoid the death penalty.^[100]

As noted in the introduction to this article, the American public has recently maintained its position of support for capital punishment for murder. However, when given a choice between the death penalty and life imprisonment without parole, support has traditionally been significantly lower than polling which has only mentioned the death penalty as a punishment; in the 2010 poll, for instance, the disparity narrowed, with 49% favoring the death penalty and 46% favoring life imprisonment.^[9] The highest level of support recorded overall was 80% in 1994 (16% opposed), and the lowest recorded was 42% in 1966 (47% opposed); on the question of the death penalty vs. life without parole, the strongest preference for the death penalty was 61% in 1997 (29% favoring life), and the lowest preference for the death penalty was 47% in 2006 (48% favoring life).^[7]

Ages of condemned prisoners

Executions in the United States from 1608 to 2009

Executions in the United States from 1930 to 2009

Total number of prisoners on Death Row in the United States from 1953 to 2008

Since 1642 (in the 13 colonies, the United States under the Articles of Confederation, and the current United States) an estimated 364 juvenile offenders have been put to death by states and the federal government. The earliest known execution of a prisoner for crimes committed as a juvenile was Thomas Graunger in 1642. Twenty-two of the executions occurred after 1976, in seven states. Due to the slow process of appeals, it was highly unusual for a condemned person to be under 18 at the time of execution. The youngest person to be executed in the 20th century was George Stinney, electrocuted in South Carolina at the age of 14, June 16, 1944. The last execution of a juvenile may have been Leonard Shockley, who died in the Maryland gas chamber April 10, 1959, at the age of 17. No one has been under age 19 at time of execution since at least 1964.^[101][102] Since the reinstatement of the death penalty in 1976, 22 people have been executed for crimes committed under the age of 18. 21 were 17 at the time of the crime. The last person to be executed for a crime committed as a juvenile was Scott Hain April 3, 2003 in Oklahoma.^[103]

Before 2005, of the 38 U.S. states that allow capital punishment:

• 19 states and the federal government had set a minimum age of 18,
• 5 states had set a minimum age of 17, and
• 14 states had explicitly set a minimum age of 16, or were subject to the Supreme Court's imposition of that minimum.

16 was held to be the minimum permissible age in the 1988 Supreme Court of the United States decision of Thompson v. Oklahoma. The Supreme Court, considering the case Roper v. Simmons, in March 2005, found execution of juvenile offenders unconstitutional by a 5–4 margin, effectively raising the minimum permissible age to 18. State laws have not been updated to conform with this decision. Under the US system, unconstitutional laws do not need to be repealed, but are instead held to be unenforceable. (See also List of juvenile offenders executed in the United States)

Distribution of sentences

Within the context of the overall murder rate, the death penalty cannot be said to be widely or routinely used in the United States; in recent years the average has been about one execution for about every 700 murders committed, or 1 execution for about every 325 murder convictions.

Among genders, only 0.9% of those executed since 1976 have been women.

Among those sentenced

It is noted that the death penalty is sought and applied more often in some jurisdictions, not only between states but within states. A 2004 Cornell University study showed that while 2.5% of murderers convicted nationwide were sentenced to the death penalty, in Nevada 6% were given the death penalty.^[104] Texas gave 2% of murderers the death sentence, less than the national average. Texas, however, executed 40% of those sentenced, which was about four times higher than the national average. California had executed only 1% of those sentenced.

Among races

African Americans made up 41% of death row inmates while making up only 12% of the general population. (They have made up 34% of those actually executed since 1976.)^[105] However, that number is lower than that of prison inmates, which is 47%^[106] According to a 2003 Amnesty International report, Africans and Europeans were the victims of murder in almost equal numbers, yet 80% of the people executed since 1977 were convicted of murders involving white victims.^[105]

A summary of executions in Texas since 1982 concludes:^[31]

• White (216) (46%, pop. ~80%)
• Black (172) (37%, pop. ~12%)
• Latin (78) (16%, pop. ~16%)
• Asian (2) (0.4%, pop. ~5%)

(Percentage totals exceed 100% due to mixed race.)

Public vs. private execution

The last public execution in America was that of Rainey Bethea in Owensboro, Kentucky, on August 14, 1936. It was the last death sentence in the nation at which the general public was permitted to attend without any legally-imposed restrictions. "Public execution" is a legal phrase, defined by the laws of various states, and carried out pursuant to a court order. Similar to "public record" or "public meeting," it means that anyone who wants to attend the execution may do so.

About 1890, a political movement developed in the United States to mandate private executions. Several states enacted laws which required executions to be conducted within a "wall" or "enclosure" to "exclude public view." For example, in 1919, the Missouri legislature adopted a statute (L.1919, p. 781) which required, "the sentence of death should be executed within the county jail, if convenient, and otherwise within an enclosure near the jail." The Missouri law permitted the local sheriff to distribute passes to individuals (usually local citizens) who he believed should witness the hanging, but the sheriffs—for various reasons—sometimes denied passes to individuals who wanted to watch. Missouri executions conducted after 1919 were not "public" because they were conducted behind closed walls, and the general public was not permitted to attend.

Present-day statutes from across the nation use the same words and phrases, requiring modern executions to take place within a wall or enclosure to exclude public view. Connecticut (CGSA 54-100) requires death sentences to be conducted in an "enclosure" which "shall be so constructed as to exclude public view." Kentucky (KRS 431.220) and Missouri (VAMS 546.730) statutes contain substantially identical language. New Mexico's statute (NMSA 31-14-12) requires executions be conducted in a "room or place enclosed from public view." A dormant Massachusetts law (MGLA. 279 § 60) requires executions to take place "within an enclosure or building." North Carolina (NCGSA § 15-188) requires death sentences to be executed "within the walls" of the penitentiary, as do Oklahoma (22 Okl.St.Ann. § 1015) and Montana (MCA 46-19-103). Ohio (RC § 2949.22) requires, "The enclosure shall exclude public view." Similarly, Tennessee (TCA § 40-23-116) requires "an enclosure" for "strict seclusion and privacy." Federal law (18 U.S.C.A. § 3596 and 28 CFR 26.3) specifically limits the witnesses to be present at an execution.

Today, there are always witnesses to executions—sometimes numerous witnesses, but it is the law, not the number of witnesses present, which determines whether the execution is "public."

All of the executions which have taken place since the 1936 hanging of Bethea in Owensboro have been conducted within a wall or enclosure. For example, Fred Adams was legally hanged in Kennett, Missouri, on April 2, 1937, within a 10-foot (3 m) wooden stockade. Roscoe "Red" Jackson was hanged within a stockade in Galena, Missouri, on May 26, 1937. Two Kentucky hangings were conducted after Galena in which numerous persons were present within a wooden stockade, that of John "Peter" Montjoy in Covington, Kentucky on December 17, 1937, and that of Harold Van Venison in Covington on June 3, 1938. An estimated 400 witnesses were present for the hanging of Lee Simpson in Ryegate, Montana, on December 30, 1939. The execution of Timothy McVeigh on June 11, 2001, was witnessed by some 300 people (some by closed circuit television).

Clemency and commutations

The largest number of clemencies was granted in January 2003 in Illinois, when outgoing Governor George Ryan, who had already imposed a moratorium on executions, pardoned four death-row inmates and commuted the sentences of the remaining 167 to life in prison without the possibility of parole.^[107] When Governor Pat Quinn signed legislation abolishing the death penalty in Illinois in March 2011, he commuted the sentences of the fifteen inmates on death row to life imprisonment.^[27]

Previous post-Furman mass clemencies took place in 1986 in New Mexico, when Governor Toney Anaya commuted all death sentences because of his personal opposition to the death penalty. In 1991 outgoing Ohio Governor Dick Celeste commuted the sentences of eight prisoners, among them all four women on the state's death row. And during his two terms (1979–1987) as Florida Governor, Bob Graham, although a strong death penalty supporter who had overseen the first post-Furman involuntary execution as well as 15 others, agreed to commute the sentences of six people on grounds of "possible innocence" or "disproportionality."

Suicide on death row

The suicide rate of death row inmates was found by Lester and Tartaro to be 113 per 100,000 for the period 1976–1999. This is about ten times the rate of suicide in the United States as a whole and about six times the rate of suicide in the general U.S. prison population.^[108]

Current moratoria and de-facto moratoria

Since the reinstatement of the death penalty, Kansas and New Hampshire have performed no executions, and four states have executed only prisoners who wanted to be executed: Pennsylvania has executed three men, Oregon, two, Connecticut and South Dakota have executed one man, respectively. Therefore, these six states can be regarded as having "de-facto moratoria." However, in 2010, bills to abolish the death penalty in Kansas and in South Dakota were rejected, and New Hampshire even expanded its death-penalty law in 2011. In Connecticut, then-Governor Jodi Rell vetoed a death-abolition bill in 2009, and in 2011, two Democratic senators withdrew their support for a new bill, so the session ended without passage. Idaho ended its "de-facto moratorium," during which only one "volunteer" had been executed, on November 18, 2011 by executing Paul Ezra Rhoades. Of the 12 prisoners whom Nevada has executed since 1976, 11 wanted to be executed; Colorado (in 1997) and Wyoming (in 1992) have executed only one prisoner, respectively.

Democratic Governor Parris N. Glendening halted executions in the state of Maryland by executive order on May 9, 2002, but the subsequent Republican governor, Robert Ehrlich, resumed executions in 2004. However, on December 19, 2006, the Maryland Court of Appeals ruled that state executions would be suspended until the manual that spells out the protocol for lethal injections is reviewed by a legislative panel. The state's Department of Corrections had adopted the manual without having a public hearing or submitting it before a committee. Legislative review of the protocol is required before approval under state law.

In North Carolina, a de-facto moratorium is in place following a decision by the state's medical board that physicians cannot participate in executions, which is a requirement under state and federal law.

In California, U.S. District Judge Jeremy Fogel imposed a moratorium on the death penalty in the state of California on December 15, 2006, ruling that the implementation used in California was unconstitutional but that it could be fixed.^[109]

In Nebraska, the Nebraska Supreme Court ruled, on February 8, 2008, that the use of the electric chair is unconstitutional—specifically, that its use conflicts with the Nebraska Constitution. As electrocution was the sole legally authorized method of execution in Nebraska, the state had what technically amounts to no legally authorized death penalty,^[110] until the introduction of lethal injection in that state in May 2009.^[111]

After the U.S. Supreme Court agreed to hear the case Baze v. Rees many states had slowed or halted executions as lawyers for death-row prisoners argued that states should not carry out death sentences using a method that may be ruled unconstitutional. While executions had come to an apparent stop until Baze was examined by the court, this was not the intent, according to Supreme Court Justice Antonin Scalia, who stated on October 16, 2007 that stopping all executions by that method was not the high court's intention when it agreed to hear Baze. Just because the justices agreed to take on the case, Scalia said, does not necessarily mean that a moratorium should ensue.^[112]

On November 25, 2009, the Kentucky Supreme Court placed a moratorium on executions until it adopts regulations for carrying out the penalty by lethal injection.^[113]

In November 2011, Oregon governor John Kitzhaber announced a moratorium on executions in Oregon, canceling a planned execution and ordering a review of the death penalty system in the state.^[114]

See also

	United States portal
	Criminal justice portal

• List of U.S. Supreme Court decisions on capital punishment
• List of exonerated death row inmates
• Capital punishment by the United States federal government
• Opposition to capital punishment in the United States

Related

• Crime in the United States
• Incarceration in the United States

External resources

Pro-death penalty

• Off2DR
• Pro Death Penalty.com
• Josh Marquis, the justice system, politics and the media
• Clark County, IN Prosecutor's Page on capital punishment
• In Favor of Capital Punishment - Quotes supporting Capital Punishment by Saqib Ali
• The Ultimate Punishment - A professor defends the death penalty
• Is man a moral agent? - Ethics of capital punishment
• A defense of the death penalty
• Death Penalty Information - News, arguments and links
• Criminal Justice Legal Foundation Articles on the death penalty, and deterrence

Anti-death penalty

• Death Penalty Information Center
• National Coalition to Abolish the Death Penalty
• Fight the death penalty in America
• Texas Coalition to Abolish the Death Penalty
• Texas Moratorium Network
• The Innocence Project
• Truth in Justice
• Amnesty International USA campaign to abolish the death penalty
• Against the Death Penalty — Religious Organization
• Death Penalty Focus

Question of racial bias

• Reporting a study finding no intentional racial bias - CNN Law Center archives

More information

• "U.S. Army Corrections System: Procedures for Military Executions" - Department of the Army
• About.com's Pros & Cons of the Death Penalty and Capital Punishment (Liberal Viewpoint)
• Last Meals on Death Row
• The documentary Procedure 769, witness to an execution DocsOnline focuses on the people who witness an execution, specifically that of Robert Alton Harris who murdered two boys in 1978.

References

1. ^ Those Executed Who Did Not Directly Kill the Victim | Death Penalty Information Center
2. ^ "Facts About the Death Penalty", http://www.deathpenaltyinfo.org/FactSheet.pdf, Death Penalty Information Center, April 1, 2008
3. ^ execution since 1976
4. ^ Executions Slowed in 2008, But Numbers May Increase in Coming Year
5. ^ Death penalty rift in states continues
6. ^ Death Penalty in 2010: Year End Report
7. ^ ^{a b} "Support for the Death Penalty 30 Years After the Supreme Court Ruling". The Gallup Organization. November 8, 2010. http://www.gallup.com/poll/23548/Support-Death-Penalty-Years-After-Supreme-Court-Ruling.aspx. Retrieved November 15, 2010. 
8. ^ "In U.S., Support for Death Penalty Falls to 39-Year Low". The Gallup Organization. October 13, 2011. http://www.gallup.com/poll/150089/Support-Death-Penalty-Falls-Year-Low.aspx. Retrieved October 13, 2011. 
9. ^ ^{a b} "In U.S., 64% Support Death Penalty in Cases of Murder". The Gallup Organization. November 8, 2010. http://www.gallup.com/poll/144284/Support-Death-Penalty-Cases-Murder.aspx. Retrieved November 15, 2010. 
10. ^ http://www.deathpenaltyinfo.org/part-i-history-death-penalty |title=Part I: History of the Death Penalty, Death Penalty Information Center |author=Death Penalty Information Center |date=2010 |work= |publisher= |accessdate=12 April 2011
11. ^ http://www.antideathpenalty.org/history.html
12. ^ Espy file
13. ^ Department of Justice of the United States of America
14. ^ The U.S. Military Death Penalty
15. ^ John A. Bennett
16. ^ Executions in the Military
17. ^ "The Dakota Conflict Trials of 1862". http://www.law.umkc.edu/faculty/projects/ftrials/dakota/dakota.html. Retrieved 2006-07-17. 
18. ^ John T. Brennan, Ghosts of Newport: Spirits, Scoundrels, Legends and Lore (The History Press, 2007), pg. 15 [2](accessed on Google Books on July 20, 2009)
19. ^ Information on States Without the Death Penalty
20. ^ History of the Death Penalty - Faith in Action - Working to Abolish the Death Penalty
21. ^ See Caitlin pp. 420-422
22. ^ ["Strong opposition sinks proposed amendment" by Dawson Bell, Detroit Free Press, published March 19, 2004, accessed September 17, 2011
23. ^ Green, Melissa S. (July 20, 2001; revised September 21, 2001). "A History of the Death Penalty in Alaska". University of Alaska Anchorage. http://justice.uaa.alaska.edu/death/alaska/history.html. Retrieved July 15, 2010. "Alaska as a state has never had a death penalty. However, in Alaska's territorial days, eight men were executed under civil authority between 1900 and 1957. Other persons in Alaska were executed extrajudicially in the late 19th century under so-called "miner's laws." There is currently no easily available information on executions that may have taken place under military authority in Alaska." 
24. ^ Hugo Adam Bedau (1980). "The 1964 Death Penalty Referendum in Oregon". http://cad.sagepub.com/cgi/content/abstract/26/4/528. Retrieved December 23, 2009. "In Oregon, six times in this century, the death penalty has confronted the voters at the polls. In 1964, in an event unparalleled in our history, the death penalty was abolished in public referendum by a wide margin." 
25. ^ "Illinois death row inmates moved to regular jail cells". Reuters. July 2, 2011. http://www.reuters.com/article/2011/07/02/us-illinois-deathpenalty-idUSTRE76110Z20110702. Retrieved July 2, 2011. 
26. ^ Richburg, Keith B. (December 14, 2007). "N.J. Approves Abolition of Death Penalty; Corzine to Sign". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2007/12/13/AR2007121301302.html. Retrieved April 28, 2010. 
27. ^ ^{a b} "Quinn signs death penalty ban, commutes 15 death row sentences to life". Chicago Tribune. March 9, 2011. http://newsblogs.chicagotribune.com/clout_st/2011/03/quinn-signs-death-penalty-ban-commutes-15-death-row-sentences-to-life.html. Retrieved March 9, 2011. 
28. ^ (English) Maria Medina, « Governor OK with Astorga capital case »
29. ^ "New Mexico governor bans death penalty". Agence France-Presse. March 18, 2009. Archived from the original on December 23, 2009. http://www.webcitation.org/5mEkMGy25. Retrieved 2009-12-23. "LOS ANGELES (AFP) — New Mexico Governor Bill Richardson made his state the 15th in the nation to outlaw capital punishment when he signed a law abolishing the death penalty, his office said." 
30. ^ ^{a b} Lundin, Leigh. "Executed Prisoners in Texas". Last Words. Criminal Brief. http://criminalbrief.com/?page_id=13627. Retrieved 2010-11-05. 
31. ^ ^{a b c} Lundin, Leigh (2010-08-22). "Last Words". Capital Punishment. Criminal Brief. http://criminalbrief.com/?p=13542. 
32. ^ No serious chance of repeal in those states that are actually using the death penalty
33. ^ AG Brown says he'll follow law on death penalty
34. ^ lawmakers-cite-economic-crisis-effort-ban-death-penalty
35. ^ death penalty is not likely to end soon in US
36. ^ Death penalty repeal unlikely says anti-death penalty activist
37. ^ The Lantern - A new Texas? Ohio's death penalty examined
38. ^ Powell, Michael (2005-04-13). "In N.Y., Lawmakers Vote Not to Reinstate Capital Punishment". The Washington Post. http://www.washingtonpost.com/wp-dyn/articles/A47871-2005Apr12.html. Retrieved 2008-04-11. 
39. ^ Ring, Dan (2007-11-08). "House rejects death penalty". The Republican. http://www.masslive.com/springfield/republican/index.ssf?/base/news-2/119451180886550.xml&coll=1. Retrieved 2009-05-01. 
40. ^ "WHEN NEW YORK HAD NO DEATH PENALTY; Punishment for Murder Under Law of 1860 Curiously Limited to a Year in Prison.". The New York Times. 1912-01-21. http://query.nytimes.com/gst/abstract.html?res=9F0CE7D8123AE633A25752C2A9679C946396D6CF. Retrieved 2009-10-30. 
41. ^ "Neb. lethal-injection plan advances". KTIV / Associated Press. 2009-12-08. Archived from the original on 2009-12-23. http://www.webcitation.org/5mEk0s8DS. Retrieved 2009-12-23. "LINCOLN, Neb. (AP) — A proposed lethal-injection protocol in Nebraska has been submitted to Attorney General Jon Bruning for approval. Last week, the state Department of Correctional Services signed off on the three-drug cocktail and the process of administering it to death-row inmates. The department devised the proposed protocol and did not make any changes to the proposal after some raised concerns about it, including that it doesn't clearly specify how workers should be trained to administer the drugs. If Bruning approves the proposal, it will go to Gov. Dave Heineman for final approval." 
42. ^ "The year in review, a look back at 2009 Part 2". KTIV. http://www.ktiv.com/Global/story.asp?S=11717401. Retrieved 2009-12-23. "When the Nebraska Unicameral gaveled into session, the state was without a method to carry out capital punishment. The Nebraska Supreme Court ruled the electric chair unconstitutional. Norfolk State Senator Mike Flood introduced a bill that would make lethal injection legal. The bill had the full support of Governor Dave Heineman." 
43. ^ "Ohio executes inmate with 1-drug lethal injection". Associated Press. December 8, 2009. Archived from the original on December 23, 2009. http://www.webcitation.org/5mEkZTdUI. Retrieved December 23, 2009. "All 36 death penalty states use lethal injection, and 35 rely on the three-drug method. Nebraska, which recently adopted injection over electrocution, has proposed the three-drug method but hasn't finalized it." 
44. ^ http://www.initiative-gegen-die-todesstrafe.de/en/death-penalty-world- wide/usa/puerto-rico-a-special-case.html - 'Puerto Rico - A Special Case' by the German Coalition to Abolish the Death Penalty
45. ^ Liptak, Adam (July 17, 2003). "Puerto Ricans Angry That U.S. Overrode Death Penalty Ban". The New York Times. http://www.nytimes.com/2003/07/17/us/puerto-ricans-angry-that-us-overrode-death-penalty-ban.html. Retrieved February 22, 2011. 
46. ^ "DARYL RENARD ATKINS, PETITIONER v. VIRGINIA". June 20, 2002. http://supct.law.cornell.edu/supct/html/00-8452.ZO.html. Retrieved August 6, 2006. 
47. ^ List of Defendants with Mental Retardation Executed in the United States | Death Penalty Information Center
48. ^ "Illinois poised to abolish death penalty". Reuters. January 11, 2011. http://www.reuters.com/article/2011/01/11/us-executions-illinois-idUSTRE70A6G920110111. 
49. ^ "Governor Rell Vetoes HB 6578, An Act Concerning the Penalty for a Capital Felony" (Press release). State of Connecticut. June 5, 2009. http://www.ct.gov/governorrell/cwp/view.asp?A=3675&Q=441204. Retrieved March 9, 2011. "Governor M. Jodi Rell today vetoed HB 6578, An Act Concerning the Penalty for a Capital Felony, which sought to eliminate the death penalty as a sentencing option in Connecticut." 
50. ^ Connecticut Activists Seek to Abolish the Death Penalty, and Gov. Malloy Says He'll Sign the Bill if it Lands on His Desk, Hartford Advocate Feb 15, 2011
51. ^ "Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions". Journalist's Resource.org. http://journalistsresource.org/studies/government/criminal-justice/transparency-death-penalty/. 
52. ^ ^{a b} Death Penalty for Offenses Other Than Murder http://www.deathpenaltyinfo.org/article.php?&did=2347, Death Penalty Information Center, 2008, accessed January 28, 2008
53. ^ Florida styles what would be common law rape as "sexual battery." Sexual batteries which could receive the death penalty if Kennedy v. Louisiana were overturned are found in The 2009 Florida Statutes § 794.011(2)(a) & (8)(c), available at http://www.leg.state.fl.us/Statutes/index.cfm
54. ^ See The 2009 Florida Statutes § 782.04(1)(a)(3), available at http://www.leg.state.fl.us/Statutes/index.cfm
55. ^ Legislative Information
56. ^ Communications Office of California.
57. ^ The ESPY file for James Coburn
58. ^ Mears, Bill (June 25, 2008). "Child rapists can't be executed, Supreme Court rules". CNN. http://www.cnn.com/2008/CRIME/06/25/scotus.child.rape/index.html. Retrieved March 11, 2011. 
59. ^ Greenhouse, Linda (June 26, 2008). "Supreme Court Rejects Death Penalty for Child Rape". The New York Times. http://www.nytimes.com/2008/06/26/washington/26scotuscnd.html. Retrieved March 11, 2011. "The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”" 
60. ^ Browse Caselaw
61. ^ http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryRedirector.jsp Click "Offender Search" at the top. Search for "Sears, Demarcus" in the name search.
62. ^ Berry, Irene; O'Hare, Sheila and Silva, Jesse (2006). Legal Executions in California: A Comprehensive Registry, 1851-2005. McFarland & Company, Inc., Publishers, p. 61.
63. ^ The Sad Story of Private Eddie Slovik
64. ^ Berry, Irene; O'Hare, Sheila and Silva, Jesse (2006). Legal Executions in California: A Comprehensive Registry, 1851-2005. McFarland & Company, Inc., Publishers, p. 10.
65. ^ [3]
66. ^ ^{a b} Record Book of Col John Todd
67. ^ See, e.g., Hill v. McDonough.
68. ^ See generally Separation of powers.
69. ^ ^{a b} See, e.g., 18 U.S.C. § 3595. ("In a case in which a sentence of death is imposed, the sentence shall be subject to review by the court of appeals upon appeal by the defendant."
70. ^ See generally Appeal.
71. ^ ^{a b} Poland v. Arizona, 476 U.S. 147 152-54 (1986).
72. ^ Eric M. Freedman, "Giarratano is a Scarecrow: The Right to Counsel in State Postconviction Proceedings, Legalize Drugs" 91 Cornell L. Rev. 1079, 1097 (2006).
73. ^ Teague v. Lane, 489 U.S. 288, 306 (1989).
74. ^ LaFave, Israel, & King, 6 Crim. Proc. § 28.11(b) (2d ed. 2007).
75. ^ LaFave, Israel, & King, 6 Crim. Proc. § 28.11(a) (2d ed. 2007).
76. ^ ^{a b} Eric M. Freedman, "Giarratano is a Scarecrow: The Right to Counsel in State Postconviction Proceedings," 91 Cornell L. Rev. 1079, 1097 (2006).
77. ^ House v. Bell, 126 S. Ct. 2064 (2006)
78. ^ "Habeas Corpus Studies". The New York Times. April 1, 1996. http://query.nytimes.com/gst/fullpage.html?res=9C05E0DB1039F932A35757C0A960958260. Retrieved April 28, 2010. 
79. ^ frontline: the execution: readings: the new speed-up in habeas corpus appeals
80. ^ see 28 U.S.C. § 2255.
81. ^ Heck v. Humphrey, 512 U.S. 477 (1994).
82. ^ The Espy File
83. ^ MSU website page on Death Penalty information
84. ^ Nebraska court bans the electric chair
85. ^ NY Times article: Electrocution Is Banned in Last State to Rely on It
86. ^ Nebraska Supreme Court opinion
87. ^ Death Penalty Info Fact Sheet.
88. ^ NAACPLDF DRUSA, Spring 2006.
89. ^ State-by-state methods of execution. Retrieved February 4, 2009.
90. ^ New Hampshire Laws, TITLE LXII: Criminal Code, Chapter 630: Homicide, Section 630:5, Procedure in Capital Murder. – Clause XIV. From statutes 1974, 34:10. 1977, 440:2. 1986, 82:1. 1990, 199:3, eff. Jan. 1, 1991. Found at General Court of New Hampshire State Official website. Retrieved February 4, 2009.
91. ^ Revised Code of Washington, RCW 10.95.180 (Title 10, Chapter 10.95, Section 10.95.180) "Death penalty — How executed." Found at Washington State Legislature Official website. Retrieved February 4, 2009.
92. ^ ReligiousTolerance
93. ^ [4]
94. ^ Adam Lipak (January 4, 2010). "Group Gives Up Death Penalty Work". New York Times. http://www.nytimes.com/2010/01/05/us/05bar.html. 
95. ^ "Innocence: List of Those Freed From Death Row". Death Penalty Information Center. October 28, 2010. http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row. Retrieved March 11, 2011. 
96. ^ Pitkin, James (January 23, 2008). "Killing Time Dead Men Waiting on Oregon’s Death Row". Willamette Week. http://wweek.com/editorial/3411/10288/. Retrieved March 11, 2011. 
97. ^ Experts Agree: Death Penalty Not A Deterrent To Violent Crime, http://news.ufl.edu/1997/01/15/death1/, January 15, 1997, accessed September 27, 2007
98. ^ American Justice Volume 1
99. ^ Letter - Cost of the Death Penalty
100. ^ STUDY: COST SAVINGS FROM REPEAL OF DEATH PENALTY MAY BE ELUSIVE
101. ^ Best Web
102. ^ Juvenile News and Developments - Previous Years
103. ^ Execution of Juveniles in the U.S. and other Countries
104. ^ "Explaining Death Row's Population and Racial Composition," The Journal of Empirical Legal Studies John Blume, Theodore Eisenberg and Martin Wells, March 2004, cited in Cornell Press release
105. ^ ^{a b} United States of America: Death by discrimination - the continuing role of race in capital cases. | Amnesty International
106. ^ Death Penalty in Black and White (1999 figures).
107. ^ Illinois Death Row Inmates Granted Commutation by Governor George Ryan on January 12, 2003
108. ^ "Suicide on death row", David Lester and Christine Tartaro, Journal of Forensic Sciences, ISSN 0022-1198, 2002, vol. 47, no5, pp. 1108-1111
109. ^ Judge says executions unconstitutional
110. ^ "Nebraska Supreme Court says electrocution unconstitutional", Omaha World-Herald (online edition), February 8, 2008.
111. ^ Volentine, Jason (2009-05-28). "Nebraska Changes Execution Method to Lethal Injection". KOLN. http://www.kolnkgin.com/political/headlines/46424547.html. Retrieved 2009-05-30. 
112. ^ Gramlich, John (October 18, 2007). "Lethal injection moratorium inches closer". Stateline.org. http://www.stateline.org/live/details/story?contentId=249581. Retrieved October 18, 2007. 
113. ^ Decision halts lethal injections | Latest Local, State News | Kentucky.com
114. ^ Jung, Helen (November 22, 2011). "Gov. John Kitzhaber stops executions in Oregon, calls system 'compromised and inequitable'". The Oregonian. http://www.oregonlive.com/pacific-northwest-news/index.ssf/2011/11/gov_john_kitzhaber_stops_all_e.html. Retrieved November 22, 2011. 

Further reading

• Bakken, Gordon Morris, ed. Invitation to an Execution: A History of the Death Penalty in the United States (University of New Mexico Press; 2010) 467 pages
• Banner, Stuart (2002). The Death Penalty: An American History. Harvard University Press. ISBN 0-674-00751-4.
• Delfino, Michelangelo and Mary E. Day. (2007). Death Penalty USA 2005 - 2006 MoBeta Publishing, Tampa, Florida. ISBN 978-0-9725141-2-5; and Death Penalty USA 2003 - 2004 (2008). MoBeta Publishing, Tampa, Florida. ISBN 978-0-9725141-3-2.
• Dow, David R., Dow, Mark (eds.) (2002). Machinery of Death: The Reality of America's Death Penalty Regime. Routledge, New York. ISBN 0-415-93266-1 (cloth), ISBN 0-415-93267-X (paperback) (this book provides critical perspectives on the death penalty; it contains a foreword by Christopher Hitchens)
• Megivern, James J. (1997), The Death Penalty: An Historical and Theological Survey. Paulist Press, New York. ISBN 0-8091-0487-3
• Osler, Mark William (2009). Jesus on Death Row: The Trial of Jesus and American Capital Punishment. Abingdon Press. ISBN 978-0-687-64756-9
• Prejean, Helen (1993). Dead Man Walking. Random House. ISBN 0-679-75131-9 (paperback)
  (Describes the case of death row convict Elmo Patrick Sonnier, while also giving a general overview of issues connected to the Death Penalty.)