The Supreme Court addressed the constitutionality of executing someone who claimed actual innocence in Herrera v. Collins (506 U.S. 390 (1993)). Although the Court left open the possibility that the Constitution bars the execution of someone who conclusively demonstrates that he or she is actually innocent, the Court noted that such cases would be very rare. The Court held that, in the absence of other constitutional violations, new evidence of innocence is no reason for federal courts to order a new trial. The Court also held that an innocent inmate could seek to prevent his execution through the clemency process, which, historically, has been “the ‘fail safe’ in our justice system.” Herrera was not granted clemency, and was executed in 1993..
Since Herrera, concern regarding the possibility of executing the innocent has grown. Currently, more than 80 death row inmates have been released because of innocence since 1973. In November, 1998 Northwestern University held the first-ever National Conference on Wrongful Convictions and the Death Penalty, in Chicago, Illinois. The Conference, which drew nationwide attention, brought together 30 of these wrongfully convicted inmates who were exonerated and released from death row. Many of these cases were discovered not as the result of the justice system, but instead as the result of new scientific techniques, investigations by journalism students, and the work of volunteer attorneys. These resources are not available to the typical death row inmate.
Support for the death penalty has fluctuated throughout the century. According to Gallup surveys, in 1936 61% of Americans favored the death penalty for persons convicted of murder. Support reached an all-time low of 42% in 1966. Throughout the 70s and 80s, the percentage of Americans in favor of the death penalty increased steadily, culminating in an 80% approval rating in 1994. Since 1994, support for the death penalty has again declined. Today, 66% of Americans support the death penalty in theory. However, public support for the death penalty drops to around 50 % when voters are offered the alternative of life without parole. (See also, DPIC’s report, Sentencing for Life: American’s Embrace Alternatives to the Death Penatly)
In the 1970s, the National Association of Evangelicals (NAE), representing more then 10 million conservative Christians and 47 denominations, and the Moral Majority, were among the Christian groups supporting the death penalty. NAE’s successor, the Christian Coalition, also supports the death penalty. Today, Fundamentalist and Pentecostal churches as well as the Church of Jesus Christ of Latter-day Saints (Mormons) support the death penalty, typically on biblical grounds, specifically citing the Old Testament. (Bedau, 1997).
Although traditionally also a supporter of capital punishment, the Roman Catholic Church now oppose the death penalty. In addition, most Protestant denominations, including Baptists, Episcopalians, Lutherans, Methodists, Presbyterians, and the United Church of Christ, oppose the death penalty. During the 1960s, religious activists worked to abolish the death penalty, and continue to do so today.
In recent years, and in the wake of a recent appeal by Pope John Paul II to end the death penalty, religious organizations around the nation have issued statements opposing the death penalty. Complete texts of many of these statements can be found at www.envisioning.org.
Women have, historically, not been subject to the death penalty at the same rates as men. From the first woman executed in the U.S., Jane Champion, who was hanged in James City, Virginia in 1632, to the 1998 executions of Karla Faye Tucker in Texas and Judi Buenoano in Florida, women have constituted only 3% of U.S. executions. In fact, only four women have been executed in the post-Gregg era. In addition to Karla Faye Tucker and Judi Buenoano, Velma Barfield was executed in North Carolina in 1984 and Betty Lou Beets was executed in Texas in February, 2000. (O’Shea, 1999, with updates by DPIC)
Recent Developments in Capital Punishment
The Federal Death Penalty
In addition to the death penalty laws in many states, the federal government has also employed capital punishment for certain federal offenses, such as murder of a government official, kidnapping resulting in death, running a large-scale drug enterprise, and treason. When the Supreme Court struck down state death penalty statutes in Furman, the federal death penalty statutes suffered from the same conitutional infirmities that the state statutes did. As a result, death sentences under the old federal death penalty statutes have not been upheld.
In 1988, a new federal death penalty statute was enacted for murder in the course of a drug-kingpin conspiracy. The statute was modeled on the post-Gregg statutes that the Supreme Court has approved. Since its enactment, 6 people have been sentenced to death for violating this law, though none has been executed.
In 1994, President Clinton signed the Violent Crime Control and Law Enforcement Act that expanded the federal death penalty to some 60 crimes, 3 of which do not involve murder. The exceptions are espionage, treason, and drug trafficking in large amounts.
Two years later, in response to the Oklahoma City Bombing, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996. The Act, which affects both state and federal prisoners, restricts review in federal courts by establishing tighter filing deadlines, limiting the opportunity for evidentiary hearings, and ordinarily allowing only a single habeas corpus filing in federal court. Proponents of the death penalty argue that this streamlining will speed up the death penalty process and significantly reduce its cost, although others fear that quicker, more limited federal review may increase the risk of executing innocent defendants. (Bohm, 1999 and Schabas, 1997)
In the 1980s the international abolition movement gained momentum and treaties proclaiming abolition were drafted and ratified. Protocol No. 6 to the European Convention on Human Rights and its successors, the Inter-American Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, and the United Nation’s Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, were created with the goal of making abolition of the death penalty an international norm.
Today, the Council of Europe requires new members to undertake and ratify Protocol No. 6. This has, in effect, led to the abolition of the death penalty in Eastern Europe. For example, the Ukraine, formerly one of the world’s leaders in executions, has now halted the death penalty and has been admitted to the Council. South Africa’s parliament voted to formally abolish the death penalty, which had earlier been declared unconstitutional by the Constitutional Court. In addition, Russian President, Boris Yeltsin, signed a decree commuting the death sentence for all of the convicts on Russia’s death row, in June 1999. (Amnesty International and Schabas, 1997)
The Death Penalty Today
In April 1999, the United Nations Human Rights Commission passed the Resolution Supporting Worldwide Moratorium On Executions. The resolution calls on countries which have not abolished the death penalty to restrict its use of the death penalty, including not imposing it on juvenile offenders and limiting the number of offenses for which it can be imposed. Ten countries, including the United States, China, Pakistan, Rwanda and Sudan voted against the resolution. (New York Times, 4/29/99)
Presently, more than half of the countries in the international community have abolished the death penalty completely, de facto, or for ordinary crimes. However, over 90 countries retain the death penalty, including China, Iran, and the United States, all of which rank among the highest for international executions in 1998. (Amnesty International, 1999)
Return to Index
Return to Part I
Amnesty International, “List of Abolitionist and Retentionist Countries,” Report ACT 50/01/99, April 1999
D. Baker: “A Descriptive Profile and Socio-Historical Analysis of Female Executions in the United States: 1632-1997?; 10(3) Women and Criminal Justice 57 (1999)
R. Bohm, “Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States,” Anderson Publishing, 1999.
“The Death Penalty in America: Current Controversies,” H. Bedau, editor, Oxford University Press, 1997.
K. O’Shea, “Women and the Death Penalty in the United States, 1900-1998,” Praeger 1999.
W. Schabas “The Abolition of the Death Penalty in International Law,” Cambridge University Press, second edition, 1997.
“Society’s Final Solution: A History and Discussion of the Death Penalty,” L. Randa, editor, University Press of America, 1997.
V. Streib, “Death Penalty For Female Offenders