John Paul Ryan and John Michael Eden
The death penalty evokes our deepest human sentiments, primarily because it touches on issues of life and death, crime and punishment, and justice and ordermatters that are of vital significance. Capital punishment has evoked much discussion recently, and the opportunities to teach about it in school settings have yet to be fully realized. In an effort to encourage exploration of this issue in educational settings, The American Bar Association Division for Public Education gathered a group of scholars to discuss the social, political, and moral dimensions of this crucial question.
Their diverse approaches to this perennial problem have something in common: they all stress the importance of teaching students about the death penalty, often noting the high emotions that are characteristic of their class discussions. Opening discussion of capital punishment can enrich the classroom by sharpening students awareness of current legal, political, and philosophical issues.
Why Do We Have the Death Penalty?
In coming to grips with the reasons for and against the death penalty, students are likely to reconsider their positions on this difficult issue. According to James Acker, professor of criminal justice at the State University of New York at Albany, students who start out with pro-death penalty sentiments often become troubled by the issue of executing innocent people, by evidence of racial discrimination, or by the quality of lawyering in some cases.1 Similarly, students initially opposed to the death penalty often reevaluate their stance when confronted with the brutal case facts surrounding capital offenses, or issues of serial killers or life term prisoners who became repeat offenders.
For its supporters, capital punishment is necessary, even given its drawbacks, because its goal is not to produce unimpeachable outcomes, but rather to deter criminal activity. Proponents believe the death penalty discourages would-be criminals from committing heinous acts. And, even if other would-be or potential offenders are not deterred, the death penalty ensures that perpetrators will not be paroled, thus precluding any possibility that they might commit further crimes of this magnitude.
Proponents, then, conceive of the death penalty as a preventive measure, but whether it actually serves this purpose is the subject of heated debate. Dane Archer, professor of sociology at the University of California at Santa Cruz, examined international social science data to determine whether capital punishment does have a deterrent effect. He found that there was no evidence suggesting that the presence or absence of the death penalty had any effect on homicide rates.2 Moreover, although comparing the death penaltys efficacy in deterring crime in different states presents statistical difficulties, most research supports the claim that capital punishment does not deter criminal activity.
But even if the death penalty does not deter crime, many still contend that it is a valuable social policy. Two arguments are commonly offered. First, the death penalty can be cast as retributive justice. According to this view, some crimes are so invidious that their perpetrators deserve capital punishment. To this, opponents counter that applying the death penalty is not so different from murder itselfits sole distinguishing feature being its sanction by the stateand as such it cannot be considered a defensible social or legal policy.
A second argument holds that the state has a responsibility to protect its citizens from prospective criminals, and that in carrying out this duty the state must do everything in its power within reason to protect its constituents. John McAdams, professor of political science at Marquette University, argues that if we fail to execute murderers, and doing so would deter other murders, we have allowed the killing of innocent victims.3 The question to pose to students, at least from this perspective, centers on whether the problems associated with capital punishment outweigh its benefits as a social policy.
Why Has the Death Penalty Attracted So Much Attention?
The death penalty is a particularly urgent topic because it is imbued with so much social and political importance. The attention it attracts can be attributed to the perennial concerns it raises about justice and equality, race and power, and the consistency of legal practice. In part, the recent interest in this hot-button issue can be attributed to a growing awareness of the problems associated with its application. First, there is solid evidence suggesting that the application of the death penalty is highly arbitrary. There are significant inconsistencies in the execution rates of inmates on death row across state jurisdictions. Additionally, though African Americans make up only 12% of the general population, they comprise approximately 39% of the people on death row. Discrepancies such as these have forced citizens and scholars alike to reconsider the death penaltys merits as a viable and fair public policy.
The debate over the death penalty also has a global dimension (see Table 1). Many view use of the death penalty by the United States as an anomaly among Western, democratic, and industrial societies. Ninety-four countries still impose capital punishment for a range of crimes, while 57 nations have abolished it. The fact that so many Western nations have abolished the death penalty has contributed to the debate over its value as public policy. Instructors, then, should be aware of the death penaltys social and political import as well as its international context.
Is the Death Penalty Applied Consistently?
There is considerable evidence that the death penalty is not uniformly applied (see Table 2). For instance, between 1977 and 1994, Virginia executed 24 of the 96 inmates sentenced to receive the death penalty. Compare this figure with that of California, which sentenced 534 people to death, but executed only 2 inmates during the same time period. In other words, Virginia executed 25% of those on death row, while California executed less than 1% of these inmates, a striking difference indeed. Put another way, a defendant convicted of a capital offense is 25 times more likely to be put to death in Virginia than in California, regardless of the circumstances of the particular case. This suggests that the death penalty is not imposed consistently by states, which calls for a closer look at the causes of these differences.
Shari Diamond, professor of psychology at the University of Illinois at Chicago, points to prosecutorial, judicial, and jury discretion as persistent sources of variance and arbitrariness in the decision to impose a death sentence.4 It is prosecutors who have the discretion to determine, within legally prescribed bounds, which cases will be defined as subject to the death penalty. Judges have the role of ensuring fairness in the provision of defense for the accused, in the process of jury selection, in the proper conduct of a trial, and in giving instructions to the jury. There is room for variance at every stage of the judicial process. Diamond maintains, for example, that jury instructions are often so vague that juries rely on their own devices rather than legal standards in applying the law to a particular case.5
Is the Application of the Death Penalty Racially Biased?
There is considerable evidence that the application of the death penalty is racially biased. The percentage of death row inmates who are African American (40.7%) seems unusually high for a group that constitutes 12% of the general population (see Figure 1). David Baldus, Professor of Law at the University of Iowa, concluded from his research that in hard casesones in which the correct sentence is unclearthe effects of race are much stronger.6
Complicating this picture is another factor: the racial composition of juries in capital cases. James Coleman, professor of law at Duke University, argues that prosecutors regularly strike black jurors in cases where the defendant is black.7 Moreover, fewer African Americans in general survive the death-qualification stage of jury selection because more are opposed to the imposition of the death penalty as social policy.
The Constitution requires that a jury should be composed of peerscitizens who come from diverse segments of their communities. According to Coleman, the tendency to exclude blacks from juries can be traced to our antebellum criminal system, in which slaves and free blacks were not considered equals.8 But if our criminal justice system is to be truly inclusive, it needs the opinions of all representatives of our diverse society. As Coleman puts it, the criminal justice system will never be fair until it is administered by both black and white citizens.9
Ensuring that juries are representative and diverse is important, but it still will not ensure fairness in the application of the death penalty. In that connection, race itself may not completely account for bias in the courtroom. It may be that the connection between race and other factors, such as socioeconomic status, provides a more complete picture.
Many critics of the death penalty have noted that the quality of defense counsel in a capital case often has a direct impact on the cases outcome. For indigent defendants, justice often remains elusive because high-quality representation cannot be secured with limited means. Poor defendants are typically assigned public defenders, who often have large caseloads that prevent them from devoting the extraordinary amount of time and energy necessary to provide competent advocacy. In jurisdictions that do not have public defenders, private attorneyssome of whom have limited experience with serious criminal casesare appointed to represent people facing capital sentences.
It is clear that socioeconomic status, which is often correlated with race, significantly affects whether a particular defendant receives the death penalty. Leigh Bienen, senior lecturer at Northwestern University School of Law, believes this raises fundamental questions about justice; if legal outcomes can be substantially affected by a defendants lack of economic resources, equal justice for all remains elusive.10
The Future of the Death Penalty
One of the ironies about the discourse on the death penalty is that scholarly and public attitudes are so much at variance. While most scholars who have studied, collected data on, and written about the subject are opposed to the death penalty as public policy, the majority of Americans (about 75%) now favor the death penalty. Even President Clinton, a moderately liberal Democrat, favors the death penalty and as governor of Arkansas presided over a number of executions. Given this broad political consensus on the subject, and the increasing numbers of executions in the states in recent years, it is unlikely that public policy is likely to change significantly in the foreseeable future. Nonetheless, a number of legal groups, including the American Bar Association, have criticized the fairness of the application of the death penalty and have called for procedural reforms or total abolition.
1. James Acker, The Death Penalty: A Scholarly Forum, Focus on Law Studies, Vol. XII, No. 2 (Spring 1997):10.
2. Dane Archer, The Death Penalty: A Scholarly Forum, Focus on Law Studies, Vol. XII, No. 2 (Spring,1997): 9.
3. John McAdams, The Death Penalty: A Scholarly Forum, Focus on Law Studies, Vol. XII, No. 2 (Spring 1997): 9.
4. Shari Diamond, The Death Penalty: A Scholarly Forum, Focus on Law Studies, Vol. XII, No. 2 (Spring 1997): 4.
6. David Baldus, The Death Penalty: A Scholarly Forum, Focus on Law Studies, Vol. XII, No. 2 (Spring 1997): 7.
7. James Coleman, The Death Penalty: A Scholarly Forum, Focus on Law Studies, Vol. XII, No. 2 (Spring 1997): 6.
9. Ibid., 7.
10. Leigh Bienen, The Death Penalty: A Scholarly Forum, Focus on Law Studies, Vol. XII, No. 2 (Spring 1997): 5, 7.
Acker, James. Americas Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction. Carolina Academic Press, forthcoming.
Archer, Dane and Rosemary Gartner, Violence and Crime in Cross-National Perspective. New Haven: Yale University Press, 1987.
Baldus, David, et. al., Equal Justice and the Death Penalty. Boston: Northeastern University Press, 1990.
Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997.
Bienen, Leigh, The Proportionality Review of Capital Cases by State High Courts: Only the Appearance of Justice, Journal of Criminology and Criminal Law 87 (1996): 130-314.
Bowers, William J. Capital Punishment and Contemporary Values: Peoples Misgivings and the Courts Misperceptions. Law and Society Review 27 (1993):157-75.
. Legal Homicide: The American Experience. Boston: Northeastern University Press, 1984.
Butterfield, Fox. All Gods Children: The Bosket Family and the American Tradition of Violence. New York: Alfred A. Knopf, 1995.
Capote, Truman. In Cold Blood. New York: Random House, 1965.
Ellsworth, Phoebe C., and Samuel R. Gross. Hardening of Attitudes: Americans Views on the Death Penalty. Journal of Social Issues 50 (1994): 19-45.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Vintage Books, 1979.
Gaines, Ernest. A Lesson Before Dying. New York: A.A. Knopf, 1993.
Gross, Samuel R., and Robert Mauro. Death and Discrimination: Racial Disparities in Capital Sentencing. Boston: Northeastern University Press, 1989.
Johnson, Robert (1989) This Man Has Expired: Witness to an Execution. Commonwealth 16 (1989): 9-15.
McGarrell, Edmund F., and Maria Sandys. The Misperception of Public Opinion Toward the Death Penalty. American Behavioral Scientist 39 (1996): 500-513.
NAACP Legal Defense Fund. Death Row U.S.A. Reporter Current Service. Buffalo, NY: Williams Hein & Co., Inc., 1996.
Prejean, Helen, CSJ. Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Random House, 1993.
Sarat, Austin. Lawyers for the Condemned. Oxford: Oxford University Press, forthcoming.
. Capital Punishment in Law and Culture. Oxford: Oxford University Press, forthcoming.
American Bar Association: Focus on Law Studies Death Penalty Issue
American Civil Liberties Union: Death Penalty Information
Cornell Law School Legal Information Institute
Court TV Library: Death Penalty Information
Death Penalty Information Center
National Coalition to Abolish the Death Penalty
Focus on Law Studies, a twice-yearly publication of the ABAs Division for Public Education, devoted its spring 1997 issue to the subject of the death penalty, including a spirited dialogue among eight scholars from law, political science, sociology, and criminal justice. The Focus issue can be accessed at http://www.abanet.org/publiced/focus/home.html, or complimentary copies may be obtained by contacting John Eden at email@example.com; Voice: 312-988-5736; ABA/PED, 541 N. Fairbanks Court, Suite 1500, Chicago, IL 60611-3314.
The general address for information and classroom materials is: ABA Division for Public Education, 541 N. Fairbanks Court, Suite 1500, Chicago, IL 60611-3314; Voice: 312-988-5737; Fax: 312-988-6032.
John Paul Ryan is director of the ABA Division for Public Educations school programs unit, which facilitates law-related teaching and learning in K-12, college and university, and adult school-based settings. John Michael Eden is assistant editor and program assistant for the unit.
Ronald A. Banaszak
The controversy surrounding the use of the death penalty provides a rich opportunity for students to understand the dynamics of public policy debate. When they have completed this activity, students should have a better grasp of the viewpoints and evidence on both sides of the controversy.
> Establishing Sides in the Debate
Divide students into four groups of equal size, two who will argue for use of the death penalty and two who will argue against. Members of each group do not have to agree with the position represented; in fact, it is preferable if some do not.
Have students list arguments for and against the death penalty based on two general themes: humanitarian reasons and efficacy reasons. Explain that humanitarian reasons deal with acting rightly to others and that efficacy reasons deal with the effectiveness of the death penalty. (Note: these definitions are intentionally vague to encourage a greater variety of reasons.) One group on each side of the debate will list humanitarian reasons, while the other will list efficacy reasons.
After students have completed their lists, write them on the board or an overhead projector. Now lead the class in an initial discussion of arguments for and against the death penalty.
> Performing Research
Have members of each group determine how to research their arguments. For example, a different student might investigate each argument the group has made. Or, students might examine different types of sources to obtain viewpoints/evidence that support their groups position.
Help students draw on a wide variety of information in preparing their arguments. This might include Supreme Court decisions (see the box on Key Supreme Court Decisions on the Death Penalty); statistical sources (e.g., variability in imposing and carrying out the death penalty by state, and by factors such as race, sex, age, and economic status of the convicted person); historical patterns in capital punishment in the United States and globally; and past and contemporary literature on race and capital punishment. Print and Internet resources are listed at the end of the main article.
> Determining Policy
Have each group choose a spokesman to present their arguments to the class.
Students should take notes on each presentation. When all groups have finished, students should engage in a whole class discussion to determine policy. The steps of this discussion might be as follows:
n The class selects the most powerful argument made by each group for or against the death penalty.
n The class decides whether the more powerful argument on each side of the debate involves humanitarian reasons or reasons of efficacy.
n The class votes for or against continued use of the death penalty.
> Expressing a Personal Viewpoint
As a final activity, have students write an essay that answers this question: Has your opinion on the death penalty changed as a result of this class activity. If so, why? If not, why not?
Key Supreme Court Decisions on the Death Penalty
Furman v. Georgia, 408 U.S. 238 (1972)
The Supreme Court held the death penalty to be unconstitutionally imposed on the defendants in the cases before it, because the juries imposed the death penalty without any specific guidance or limits on their discretion. However, the Court did not rule that the death penalty itself was per se unconstitutional. As a result, executions were temporarily halted in the U.S., while many states revised their death penalty statutes to address the procedural problems identified by the Court.
Gregg v. Georgia, 428 U.S. 153 (1976)
The Supreme Court upheld a revised death penalty statute in Georgia (and, in two companion cases, statutes in Florida and Texas), ruling for the first time that the death penalty did not constitute cruel and unusua#148; punishment under the 8th Amendment. Executions resumed in these and other states.
Lockett v. Ohio, 438 U.S. 586 (1978)
The Supreme Court ruled that the sentencing authority in a capital case (judge or jury) must be permitted to consider any relevant mitigating evidence offered by the defendant to secure a sentence of less than death.
McCleskey v. Kemp, 481 U.S. 279 (1987)
The Supreme Court ruled that statistical evidence offered to show that African Americans in Georgia disproportionately received sentences of death, especially when their victims were white, was not relevant, so long as decision-makers (e.g., legislatures, prosecutors) exhibited no discriminatory intent. Instead, the Court recommended that such research be presented to legislatures enacting or revising death penalty statutes.
Payne v. Tennessee, 111 S. Ct. 2658 (1991)
The Supreme Court held that the impact of capital crimes on victims families may be considered by the jury in deciding whether to impose the death sentence.
Penry v. Lynaugh, 492 U.S. 302 (1989)
The Supreme Court held that mentally retarded defendants may be subjected to the death penalty, though the presence of mental retardation can be offered as a mitigating factor.
Pulley v. Harris, 465 U.S. 37 (1984)
The Supreme Court held that the Constitution does not require a jury or judge to compare a capital defendants crimes with the crimes of others sentenced to death before imposing the death penaltyi.e., the Constitution does not impose a proportionality requirement.
Ronald A. Banaszak is director of youth education programs in the ABA Division for Public Educations school programs unit.
©1998 National Council for the Social Studies. All rights reserved.