The Death Penalty

American Civil Liberties Union Briefing Paper Number 8


Since our nation\'s founding, the government -- colonial, federal and state --
has punished murder and, until recent years, rape with the ultimate sanction:
death. More than 13,000 people have been legally executed since colonial times,
most of them in the early 20th Century. By the 1930s, as many as 150 people
were executed each year. However, public outrage and legal challenges caused
the practice to wane. By 1967, capital punishment had virtually halted in the
United States, pending the outcome of several court challenges.

In 1972, in _Furman v. Georgia_, the Supreme Court invalidated hundreds of
scheduled executions, declaring that then existing state laws were applied in an
"arbitrary and capricious" manner and, thus, violated the Eighth Amendment\'s
prohibition against cruel and unusual punishment, and the Fourteenth Amendment\'s
guarantees of equal protection of the laws and due process. But in 1976, in _
Gregg v. Georgia_, the Court resuscitated the death penalty: It ruled that the
penalty "does not invariably violate the Constitution" if administered in a
manner designed to guard against arbitrariness and discrimination. Several
states promptly passed or reenacted capital punishment laws.

Thirty-seven states now have laws authorizing the death penalty, as does the
military. A dozen states in the Middle West and Northeast have abolished
capital punishment, two in the last century (Michigan in 1847, Minnesota in
1853). Alaska and Hawaii have never had the death penalty. Most executions have
taken place in the states of the Deep South.

More than 2,000 people are on "death row" today. Virtually all are poor, a
significant number are mentally retarded or otherwise mentally disabled, more
than 40 percent are African American, and a disproportionate number are Native
American, Latino and Asian.

The ACLU believes that, in all circumstances, the death penalty is
unconstitutional under the Eighth Amendment, and that its discriminatory
application violates the Fourteenth Amendment.

Here are the ACLU\'s answers to some questions frequently raised by the public
about capital punishment.

Doesn\'t the Death Penalty deter crime, especially murder?

No, there is no credible evidence that the death penalty deters crime. States
that have death penalty laws do not have lower crime rates or murder rates than
states without such laws. And states that have abolished capital punishment, or
instituted it, show no significant changes in either crime or murder rates.

Claims that each execution deters a certain number of murders have been
discredited by social science research. The death penalty has no deterrent
effect on most murders because people commit murders largely in the heat of
passion, and/or under the influence of alcohol or drugs, giving little thought
to the possible consequences of their acts. The few murderers who plan their
crimes beforehand -- for example, professional executioners -- intend and expect
to avoid punishment altogether by not getting caught. Some self-destructive
individuals may even hope they _will_ be caught and executed.

Death penalty laws falsely convince the public that government has taken
effective measures to combat crime and homicide. In reality, such laws do
nothing to protect us or our communities from the acts of dangerous criminals.

Don\'t murderers _deserve_ to die?

Certainly, in general, the punishment should fit the crime. But in civilized
society, we reject the "eye for an eye" principle of literally doing to
criminals what they do to their victims: The penalty for rape cannot be rape, or
for arson, the burning down of the arsonist\'s house. We should not, therefore,
punish the murderer with death. When the government metes out vengeance
disguised as justice, it becomes complicit with killers in devaluing human life.

If execution is unacceptable, what is the alternative?

INCAPACITATION. Convicted murderers can be sentenced to lengthy prison terms,
including life, as they are in countries and states that have abolished the
death penalty. Most state laws allow life sentences for murder that severely
limit or eliminate th e possibility of parole. At least ten states have life
sentences without the possibility of parole for 20, 25, 30 or 40 years, and at
least 18 states have life sentences with _no_ possibility of parole.

A recent U. S. Justice Department study of public attitudes about crime and
punishment found that a majority of Americans support alternatives to capital
punishment: When people were presented the facts about several crimes for which
death was a possible punishment, a majority chose lengthy prison sentences as
alternatives to the death penalty.

Isn\'t the Death Penalty necessary as just retribution for victims\' families?

All of us would feel extreme anger and a desire for revenge if we lost a loved
one to homicide; likewise, if